New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION - DOE DEFAULT & INQUEST

Case Number: 182819

NYS Identifier Number N/A Student's Name: [“Confidential”]

Date of Birth:

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 05/16/19 & 01/14/20

Actual Record Close Date: 06/30/20

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title Eor Date DOE Representative DOE 05/16/19 DOE Representative DOE 01/14/20 Attorney PARENT 05/16/19 01/14/20

Mother PARENT 05/16/19 01/14/20 Attorney PARENT 01/14/20 Dean PARENT 01/14/20 ABA Provider PARENT 01/14/20

On April 30, 2019, I was appointed the Impartial Hearing Officer (“IHO”) to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act ( “IDEA”), 20 USC § 1415(f)(3), Article 89 of the New York State Education Law, Part 200 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973, concerning a dispute between the Parent of a( ) year old student attending a private school and the New York City - Department of Education (“DOE”) - District: , regarding the student's special education program. 1|was appointed after the recusal of at least one other IHO. After having adjournments granted at the request of and with the consent of the parties, or for good cause, the impartial hearing was held on May 16, 2019 and January 14, 2020. The DOE’s written closing statement was received February 4, 2020. (D-2) The Parent's written closing statement was received on February 3, 2020. (P-P) A list of the persons appearing at the hearing and the documents received in evidence in annexed hereto.

BACKGROUND

This case was initiated as the result of a written Due Process Complaint (“DPC”)

filed by the student’s Parent via her attorney(s), and received at the Department of Education Impartial Hearing Office (“DOE-IHO”) on or about April 29, 2019. The DPC is carried under New York City (“NYC”)

182819. The Parent in this case alleges that the student has been denied a “free and appropriate public education” (“FAPE”) for the 2017-2018 and 2018-2019 school year.

At the impartial hearing, the Parent seeks the following relief: (a) An order that the DOE fund the private school for the student's tuition and related costs, including transportation for the student’s attendance during the 2018-2019 school year; and (b) An order the DOE fund or provide door-to-door special education transportation for the student to and from the private school for the 2018-2019 school year; and (c) An interim order for immediate funding by the DOE of comprehensive independent neuropsychological evaluation, speech language, occupational and physical therapy evaluations, as well any further testing that may be recommended as a result of the aforementioned assessments, consisting of direct payments upon receipt of the evaluations and invoice to Dr. in the amount of $5,500, and directly to in the amount of $1,350 for each evaluation of occupational, physical and speech language therapy; and (d) An order that the DOE provide additional (compensatory, or make-up) services to remedy the failure to offer an appropriate program of related services for the 2017-2018 and 2018-2019 school years; and (e) Payment by the DOE of the Parent’s attorney fees and costs; and (f) Any further relief that the Hearing Officer may deem just and proper.

THE DOE’S CASE

The DOE did not call any witnesses to testify on its behalf, submitted only (2) documents in evidence (T-35-6), and did not object to the Parent’s exhibits. (T-40) The testamentary and documentary evidence for and against the DOE’s case in default is incorporated in the decision below.

THE PARENT’S CASE

The Parents called (5) witnesses to testify on her behalf, who testified on direct examination via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f]. (P-K, P-L, P-M, P-N & P-O) The DOE did cross examine two of the Parent's witnesses. (T-50-4 & 59-68) The Parent also submitted (15) documents in evidence. The DOE did not object to any of the Parent’s documents being received in evidence. (T-40) The testamentary and documentary evidence for and against the Parent's case is incorporated in the decision below.

FINDINGS OF FACTS & DECISION - DOE DEFAULT & INQUEST

IDEA ensures that students with disabilities are afforded a free and appropriate public education (“FAPE”). (20 U.S.C. § 1400 & Schaffer v. Weast, 126 S.Ct. 528 [2005]) A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP. (20 U.S.C. 1401(8) & 141(d) and 34 C.F.R. § 300.13) The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. (Schaffer, 126 S.Ct. 528, 537)

The DOE may be required to reimburse Parents for their expenditures for private educational services obtained for a student, if the services offered by the DOE were inadequate or inappropriate, the services selected by the Parents are appropriate and equitable considerations support the parent’s claim. (Sch. Comm. Of Burlington v. Dept.

of Educ., 471 U.S. 359 (1985), Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2° Cir. 2005})

The first step is to determine whether the DOE offered to provide the student a FAPE. (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2° Cir. 2000]) A FAPE is offered to a student when (a) the DOE complies with procedural requirements set forth in IDEA and (b) the IEP developed by the CSE through the procedures set forth in IDEA, is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. V. Rowley, 458 U.S. 176, 206-7 [1982]) The student’s recommended program must also be provided in the least restrictive environment (“LRE”). (20 U.S.C. § 1412(a)(5)(A), 34 C.F.R. § 300.550(b), 8 NYCRR §200.6(a)[1])

The Parent bears the burden of showing that the private school placement selected is appropriate. (SRO Nos.: 95-57, 94-29 & 93-34) The Parents must show that the private school placement offers an educational program that meets the student's special education needs. (Burlington, 471 U.S. at 370 & SRO No. 94-20) The private school need not be approved by the state educational agency to provide instruction to children with disabilities. (Florence County School District Four et. al. v. Carter, 510 U.S. 7 [1993]). It is also not required that the private school employ certified special education teachers or have its own IEP for the student. (SRO No. 94-20)

Finally, the IHO must consider whether equitable considerations favor the Parents’ request for tuition reimbursement. State Review Officer (“SRO”) Decision 06-004 holds: Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties’ compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties’ positions, and like matters” (Wolfe _v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a_ claim of _ tuition reimbursement. (Application of a Child with a Disability, Appeal No. 04-049).

In Burlington, the Court found that Congress intended retroactive reimbursement to Parents by school officials as an available remedy in a proper case under the IDEA.

(Burlington, 471 U.S. at 370-71, Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186 at 192 [2d Cir. 2005]) “Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance” had it offered the student a FAPE. (Burlington, 471 U.S. at 370-71, 20 U.S.C. § 1412[a][10][C]Iii] and 34 C.F.R. § 300.148)

The DOE failed to call any witnesses to testify on its behalf, failed to submit any documents in evidence, failed to file and serve an answer or serve a “Prior Written Notice” in this case, and did not object to the Parent's documentary evidence. (See 20 U.S.C. 1415(f)(3)(e) & T-35-6) “Prior Written Notice’ means written statements developed in accordance with Section 200.5(a) of the Regulations of the Commissioner of Education, and provided to the parents of a student with a disability a reasonable time before the school district proposes to or refuses to initiate or change the identification, evaluation, or educational placement of the student or the provision of a free appropriate public education to the student.

It is noted that silence in a responsive pleading is an admission, and a counterclaim in federal practice is compulsory in the answer or deemed waived. (See New York Practice, 4°" Edition §§223 & 224, citing Federal Rules of Civil Procedure, Rule 13(a) & Cummings v. Dresher, 18 N.Y.2d 105, 108, 271 N.Y.S.2d 976, 218 N.E.2d 688, 690 [1966])

The DOE has the burden of production and persuasion at an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement.

(See Educ. Law § 4404[1][c]) Here, the DOE did not proffer any evidence that it has offered the student a FAPE. (Supra) This amounts to a concession that the agency did not offer the student a FAPE. As previously noted, the DOE did not serve and file an answer in the case, nor did the agency serve the Parent with “Prior Written Notice’, which would provide either a denial of the Parent’s allegation, or some explanation for the agency’s failure to provide a FAPE. (See 20 U.S.C. 1415(f)(3)[e])

It would be fundamentally unfair to allow either party to rely solely on the submission of documents in meeting its burden under law, where those documents are rife with double, triple and even unidentified hearsay sources, that cannot be cross examined. While compliance with technical rules of evidence is not required in administrative hearings, under certain circumstances, the receipt of hearsay evidence may be so prejudicial as to have a tendency to deprive a party of fair hearing. (See Strain _v. Sarafan, 57 A.D.2d 525, 393 N.Y.S.2d 572, N.Y.A.D. (1977), where the hearsay testimony was of vital importance and should have been subjected to cross-examination by the petitioner...the petitioner was deprived of a meaningful hearing,_ Dukes v. New York City Housing Authority, 63 A.D.2d 690, 404 N.Y.S.2d 889, N.Y.A.D.

(1978), holding that the excessive reliance on hearsay evidence effectively denied petitioner the right to cross-examine adverse witnesses, Claim of Evans, 254 A.D.2d 564, 678 N.Y.S.2d 696, N.Y.A.D. (3 Dept. 1998), (where in an unemployment compensation proceedings, administrative law judge (‘ALJ’) properly exercised discretion to exclude hearsay evidence to protect employer's fundamental right of cross-examination, where claimant proffered written hearsay statement, authored by acquaintance of the employer’s president, which allegedly indicated that claimant did not resign but was fired, but the acquaintance failed to answer subpoena directing him to testify at hearing, thereby denying employer the opportunity to cross-examine him on the statement, and Alvarado v. State of New York, 110 A.D.2d 583, 488 N.Y.S.2d 177 (1*' Dept. 1985), holding that a license suspension hearing against a boxer and his managers was faulty because of a lack of an opportunity “to cross-examine certain witnesses whose reports were introduced into evidence without their testifying, in violation of SAPA Section 306, subd. (3).” (Id. at 585, 488 N.Y.S.2d at 179)

However, here the DOE did not present a case-in-chief and did not controvert the documentary evidence submitted by the Parent. (Supra) The credibility of the documentary evidence was not rebutted by the agency and the documentary evidence is clearly relevant and material to the issues to be determined. I find the documentary and testamentary evidence submitted by the Parent in this case to be credible and uncontroverted in this case.

As noted above, the DOE’s failure to present a case at the hearing is a concession that it denied the student a FAPE and that if the Parent meets her burden under Schaffer v. Weast, the Parent is entitled to the proven relief she seeks. This leaves, as the primary issue to be resolved through impartial hearing, what relief and/or compensatory education remedy, if any, is available and appropriate to remediate the denial of a FAPE. (SRO No. 17-033) It is noted that the DOE was required under the due process procedures set forth in New York State law, to address its burdens in the due process hearing context by describing its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate relief and/or compensatory education remedy that most reasonably and efficiently could place the student in the position that he would have been but for the denial of a FAPE. (See Doe v. E. Lyme Bd.

of Educ., 790 F.3d 440, 457 [2d Cir. 2015], cert. denied, 136 S. Ct. 2022 [2016], quoting Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [noting that the "ultimate award [of compensatory education] must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place'|) When, as here, the DOE does not present any case at the hearing, the hearing, the hearing process essentially becomes an “inquest” as to the appropriate relief.

The DOE has conceded liability by failing to present a case and meet its burden under the law. New York State law has placed the burden of production and persuasion at an impartial hearing on the school district, unlike states which align the burden of production and persuasion consistent with Schaffer v. Weast, 546 U.S. 49, 58-62 [2005]. It is not an IHO's responsibility to craft the DOE’s position regarding the primary issue in the case, for the denial of FAPE. The undersigned finds that the DOE failed to adhere to the requirements of the law, has denied the student in this case a FAPE and that the Parent may be entitled to the proven relief she has requested. The DOE has defaulted on its statutory obligation and I find that the student was denied a FAPE for the 2017-2018 and 2018-2019 school years.

The party who defaults in concedes only liability and not the amount of “damages.” (See CPLR § 3215, First Nat. Bank & Trust Co. v. Classic Collateral Corp., 44 A.D.2d 868, 355 N.Y.S.2d 504 (1974), James v. Powell, 19 N.Y.2d 249, 279 N.Y.S.2d 10, 225 N.E.2d 741 (1967), McClelland v. Climax Hosiery Mills, 252 N.Y. 347, 169 N.E. 605 (1930) The DOE’s default constitutes an admission of liability, but not of damages, which remains the Parent's burden to prove. (See Fed. R. Civ. P. 55 & City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114 at 128 [2d Cir. 2011])

I now turn to the question of whether the DOE should be required to reimburse and/or pay for the private educational services and relief requested for the student, because the services offered by the DOE were inadequate or inappropriate, and the relief sought and services selected by the Parents are appropriate and equitable considerations support the Parents’ claim. (Burlington, Florence and Cerra, Supra) The Parent need only demonstrate that the requested services are specially designed to meet the unique needs of the student, supported by such services as are necessary to permit him to benefit from the instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65)

A private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs. (See Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129 and Matrejek, 471 F. Supp. 2d at 419)

A Parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (See Carter, 510 U.S. at 14) The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-014 and 01-105) Parents also need not show that the placement provides every special service necessary to maximize the student's potential. (See Frank G., 459 F.3d at 364-65) When determining whether the Parents’ unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]])

There is a request for compensatory educational services in this case and an IHO cannot determine the amount of compensatory education that a student requires unless the record provides him with sufficient “insight about the precise types of education services the student needs to progress.” (Mary McLeod Bethune Day Acad. Pub. Charter Sch., 555 F.

Supp. 2d 130, 50 IDELR 134 [D.D.C. 2008] citing Branham v. District of Columbia, 427 F.3d 7, 44 IDELR 149 [D.C. Cir. 2005]) Pertinent findings to enable an IHO to tailor the ultimate award to the student's unique needs should include the nature and severity of the student's disability, the student's specialized educational needs, the link between those needs and the services requested, and the student’s current educational abilities. (See Branham v. District of Columbia, 427 F.3d 7, 44 IDELR 149 [D.C. Cir. 2005], see also Mary McLeod Bethune Day Acad. Pub. Charter Sch., 555 F. Supp. 2d 130, 50 IDELR 134 [D.D.C. 2008]) The Parent has the burden of “propos|[ing] a well-articulated plan that reflects the student’s current education abilities and needs and is supported by the record.” (See Phillips v. District of Columbia, 2010 WL 3563068, at *6, 55 IDELR 101 [D.D.C. Sept.

13, 2010] quoting Friendship Edison Pub. Charter Sch. Collegiate Campus v. Nesbitt ( “Nesbitt II"), 583 F. Supp. 2d 169, 172, 51 IDELR 125 [D.D.C. 2008])

State regulations provide in relevant part that "[t]he decision of the impartial hearing officer shall be based solely upon the record of the proceeding before the impartial hearing officer and shall set forth the reasons and the factual basis for the determination. (See 8 NYCRR 200.5{j][5][v])

Shaffer decision of the Supreme Court of the United States issued on November 14, 2005, held as follows:

“We hold no more than we must to resolve the case at hand: The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. In this case, that party as Brian, as represented by his parents. But the rule applies with equal effect to school districts: If they seek to challenge an IEP, they will in turn bear the burden of persuasion before an ALJ.

The judgment of the United States Court of Appeals for the Fourth Circuit is, therefore affirmed.” (Supra, Ill, ]2) (See Schaffer v. Weast, 546 U.S. 49, 58-

62 [2005] (emphasis added)

Here, for the reasons stated above, the DOE did not meet its burden under the law. (Supra) I find that the student has been denied a FAPE for the 2017-2018 and 2018-2019 school years.

A gross violation of the IDEA may result from the denial of, or exclusion from, educational services for a substantial period of time. (See SRO No. 04-074, citing Mrs.

C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990), Burr v. Ambach, 863 F.2d 1071 (2d Cir.

1988) and SRO No. 02-047.) In Burr, exclusion from educational services for a substantial period of time was defined as “almost two years.” (See SRO No. 02-033 citing Burr “...after a severely disabled student's school was closed, prolonged delays in the administrative proceedings in obtaining a new placement resulted in a complete exclusion from any educational placement for the student for almost two years.” I find that the two-year violation in this case meets the standard of a “gross violation” of FAPE.

I now turn to the question of whether the relief sought by the Parent is appropriate. As noted above, the DOE may be required to reimburse and/or pay for the private educational services and relief requested for the student, because the services offered by the DOE were inadequate or inappropriate, and the relief sought and services selected by the Parents are appropriate and equitable considerations support the Parent’s claim. (Burlington, Florence & Cerra, Supra) As previously noted, the Parent need only demonstrate that the requested services are specially designed to meet the unique needs of the student, supported by such services as are necessary to permit her to benefit from the instruction. (Gagliardo & Frank G., Supra)

In sum, substance and relevant part, the evidence in this case is as follows: The DOE concedes a denial of FAPE for two-years and does not object to the Parent’s requests for IEE’s. (D-2) The DOE questions the student’s need for ABA therapy at home and believes that the rate of $300 per hour for the service is excessive. (Id.) Finally, the DOE fears that because an Order on Pendency was issued requiring payment of the student’s tuition at the private school throughout this litigation, another order for reimbursement would have the agency paying the private school twice for the same time period. (Id.)

The DOE also argues that the private school is not appropriate because the Dean of the private school could not provide an estimated percentage of autistic students attending the school. (D-2 citing P-M). While the Dean's affidavit states that the private school differentiates instruction for each student, on cross examination she testified that all students are taught using the same Jump Math and Spire reading. (D-^[2] citing T-16-8, 52 & P-M) Additionally, the Dean testified that a multi-sensory approach is taught explicitly with autistic students, did not offer any specific approach, outside of Jump and Spire, and such a report is not a method specific to students with autism. (D 2 citing T-1-17, 24-5, 51-2)

The DOE further argues that the ABA agency charges $300 per hour, but the actual provider testified that that she only received half of that and did not Know where the remaining $150 is allocated. (D-2 citing T-18-25 & 59-61) The provider also testified that she is following a plan that was created in July 2019 but was based on outdated data from 2016. (D-2 citing 19-25 & 60) She has had no direct communication with the student’s private school school, does not know if the student receives ABA in school, and has only received feedback from the student’s teachers regarding homework but has not received any reports of any other kind of progress. (DThe Parent notes the DOE’s two-year failure to offer the student a FAPE and calculates the compensatory services as (86) weeks between September 2017 and June 2018, multiplied by (14) hours of ABA per week, plus, (29) weeks between September 2018 and April 2019 multiplied by (14) hours of ABA per week. (P-P citing T

44-5) The (910) hours requested is meant to compensate the student for a lack of FAPE between the issuance of IHO ’s decision in June 2017 and the date on which the Parent unilaterally placed the student at the private school. (P-P citing T-43-5) The Parent accurately summarizes the record justifying her request for compensatory services as follows:

In the instant case, the hearing record provides specific and detailed insight about the type of educational services that the Student requires in order to progress. , a BCBA and special education teacher, issued a detailed report in 2016 regarding the Student’s need for a minimum of 14 hours per week of ABA services (Ex. E-11) at home and in the community. According to Mr. ’ report, ABA services were needed to decrease noncompliance/avoidant behavior and maladaptive behavior and to facilitate the acquisition of new skills (Ex. E-8). Mr.

’ report was followed by Dr. '$ comprehensive neuropsychological evaluation, performed between 2016 and 2017. Dr.

’s report also recommended 14 hours of ABA services at home and in the community (Ex. F-15). According to Dr. 's report, ABA services were meant to address safety issues and significant maladaptive behaviors, social skill deficits, and deficient social-pragmatic communication (Ex. F-15). In June 2017, following Dr. ’S report, IHO ordered the District to develop an IEP that included 14 hours per week of home-based and community-based ABA services (Ex. D-11).

IHO ’s Decision formed the basis of pendency in the instant due process proceeding (Tr. 35:10-11; 42:24-25; 43:1-3). Fourteen hours per week of ABA services was part and parcel of the most recent adjudication of an appropriate program for this Student. Since IHO Ss adjudication two-and-half-years ago, the District has failed to conduct any evaluations nor offer an appropriate program to the Student (Ex. 38:1-3).

The Parent respectfully submits that denying the Student compensatory education in the form of 14 hours of ABA services would leave the Student without a remedy for the District's egregious denial of FAPE for a period spanning two school years. (P-P)

The Parent also argues that the student has progressed since the initiation of the ABA services in July 2019, with his speech improving to a more age-appropriate level, he can now tie his shoe laces and can now tolerate watching a movie in a public theatre (P-P citing P-N & P-O)

Regarding the appropriateness of the student’s placement at the private school, the Parent accurately summarizes the record in support of such a finding as follows: [PRIVATE SCHOOL NAME] provides instruction and related services specifically designed to meet the Student's needs (Ex. M). With respect to the Student's Autism diagnosis, the School employed a _ cognitive behavioral system akin to ABA (Ex. O-6; Tr. 51:24-25, 52:1-5), and regularly consulted with a BCBA (Tr. 51:14-23). There was a second student in the classroom with a diagnosis of autism (Tr. 53:23-25). The Student received occupational therapy as recommended on his prior independent occupational therapy evaluation (Ex. G-3, M-6). The School addressed the Student's social pragmatic communication disorder by providing direct social skills training, group and individual counseling, group speech therapy, and group counseling (Tr. 55:4-13; 54:16-17; Ex. M-6). The School’s small classroom setting of four students enabled the Student to make academic progress in his core academic subjects (Ex. M-6; Tr. 52:21-25, 53:1-12). Specialized instruction in reading was designed from the results of baseline testing upon the Student’s arrival at the School

(Ex. M-8). (P-P)

The DOE only crossed examined (2) out of the Parent's (5) witnesses and did not controvert the testamentary and documentary submitted by the Parent as cited above and annexed hereto. There is no basis in fact or law to deny that Parent’s request for relief, which is supported by the record. I find that the record above sufficiently establishes that the relief sought for the two-year gross denial of FAPE is appropriate.

There is nothing in the record that supports a finding the Parent has not cooperated with the DOE. For all of the reasons stated herein, I find that the Parent is entitled to the relief sought.

NOW therefore, it is hereby

ORDERED upon the DOE’s DEFAULT and after INQUEST that upon its receipt of reasonably satisfactory proof of services having been rendered, the DOE shall either reimburse the Parent and/or direct pay the entire cost of the student’s enrollment at the private school for the 2018-2019 school year in the amount of $10,800.00; the student’s receipt of (14) hours per week of home and community Applied Behavior Analysis (“ABA”) services, not to exceed a total of (910) hours at a rate not to exceed $300.00 per hour; and the student's receipt of the following independent educational evaluations: a neuropsychological evaluation by Dr. at the rate of $5,500.00; a speech-language evaluation by in the amount of $1,350.00; an occupational therapy evaluation by in the amount of $1,350.00; and a physical therapy evaluation by in the amount of $1,350.00; and it is further

ORDERED upon the DOE’s DEFAULT and after INQUEST that the DOE shall immediately conduct evaluations of the student in all areas of his suspected disabilities, not identified above and not evaluated within the last two years, for the 2020-2021 school year; and it is further

ORDERED upon the DOE’s DEFAULT and after INQUEST that the DOE shall forthwith reconvening the CSE after the completion of the student’s evaluations and consider those evaluations and any other relevant information and produce a new IEP for the student's 2020-2021 school year; and it is further

ORDERED upon the DOE’s DEFAULT and after INQUEST that any of the other relief sought by the Parent not addressed by this decision is found to be either agreed upon by the parties, withdrawn by the Parent, outside the scope of the IHO’s authority or unsupported by the record.

DATED: July 10, 2020

New York, New York Edgar De Leon - IHO

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://(www.sro.nysed.gov. (Rev. 07/09/20)

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For #of Pages

Pendency Memorandum 05/24/19 DOE 06

Closing Statement 02/04/20 DOE 04

DPC 04/29/19 PARENT 09

VTOAoMZVsIZVArOaWSeYcT

Withdrawn / Not Received N/A PARENT N/A Enrollment Contract 05/07/19 PARENT 03

Findings of Facts & Decision 06/05/17 PARENT 16

ABA Assessment 10/14/16 PARENT 29

Neuropsychological Evaluation 02/09/17 PARENT 25 unidentified unidentified PARENT N/A Feeding Evaluation 08/07/17 PARENT 04

Assistive Technology 08/29/17 PARENT 06

10-Day Notice 04/16/19 PARENT 01

Affidavit of 10/04/19 PARENT 02

Affidavit of 10/08/19 PARENT 02

Affidavit of 01/14/20 PARENT 09

Affidavit of 01/14/20 PARENT 05

Affidavit of Ms. 01/14/20 PARENT 07

Closing Statement 02/03/20 PARENT 23

N/A N/A N/A IHO N/A

Footnotes

[2] citing T-21 & 64-6)