New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION - DOE DEFAULT & INQUEST

Case Number: 182916

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

Date of Birth:

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 09/04/19

Actual Record Close Date: 02/07/20

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date DOE Representative DOE 09/04/19 Attorney PARENT 09/04/19

Mother PARENT 09/04/19 SETSS Provider PARENT 09/04/19

, CEO PARENT 09/04/19

On May 6, 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 New York State approved non-public school and the New York City Department of Education (“DOE”) - District: , regarding the student's special education program. After having adjournments granted at the request and with the consent of the parties, or for good cause, the impartial hearing was held on September 4, 2019. 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”) made by the student’s Parent via her attorney(s), and received at the Department of Education Impartial Hearing Office (“DOE-IHO”) on or about May 3, 2019. The DPC is carried under New York City (“NYC”) Case No. 182916.

The Parent in this case alleges that the student has been denied a “free and appropriate public education” (““FAPE”) for the 2018-2019 school year. At the impartial hearing, the Parent seeks the following relief: (a) |The scheduling of a pendency hearing and impartial hearing and issue an order for the student awarding (9) times per week per week of enhanced rate SETSS services retroactively for the 2018-2019 school year; and (b) Prospective payment to the student's SETSS provider/agency for (9) times a week of enhanced rate SETSS services for the full 2018-2019 school year; and (c) Such other, further and different relief as may appear just and proper under the circumstances.

THE DOE’S CASE

The DOE did not call any witnesses to testify on its behalf, did not submit documents in evidence, did not object to the Parent's documentary submissions and did not cross examine the Parent's witness. (T-4-7, 11 & 17) 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 Parent called (2) witnesses to testify on her behalf, none of whom testified on direct testimony via affidavit pursuant to 8 NYCRR 200.5|j][3][xii][f].. The DOE did not cross examine the Parents’ witnesses. (T-11 & 17) The Parent also submitted (5)

documents in evidence. The DOE did not object to the Parent's documentary evidence.

(T-6) 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, did not submit any documents in evidence, did not object to the Parent's documentary submissions, did not serve a “Prior Written Notice” in this case and did not cross examine the Parents’ witnesses. (See 20 U.S.C. 1415(f)(3)[e] & T-4-7, 11 & 17) “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 did not file a responsive pleading in this case.

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 testimonial evidence that it has offered the student a FAPE and did not rebut the presumption in the law that the Parent has cooperated with the agency. 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 or “Prior Written Notice”, which provides either a denial of the Parent’s allegations, 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, did not object to the Parent's documentary submissions and did not cross examine the Parent's witnesses.

(T-4-7, 11 &17) The credibility of the documentary and testamentary evidence was not controverted by the DOE and the evidence is relevant and material to the issues to be determined. (Id.) I find that the documentary and testamentary evidence on behalf of the Parent is on the whole credible and persuasive in favor of the Parent.

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 Parents meet their 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 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 Parents may be entitled to the proven relief they have requested.

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 no request for compensatory educational services in this case and in either case, 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 is 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 2018-2019 school year.

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 do not find that the 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)

Here, also as previously noted, the DOE did not controvert the testamentary and documentary evidence submitted by the Parent and did not cross examine the Parents’ witness. (T-4-7, 11 &17) The credibility of the Parents’ documentary and testamentary evidence is on the whole uncontroverted by the agency. (Id.) The uncontroverted evidence need not be restated in its entirety here as the transcript of the proceeding and the documentary evidence is annexed hereto and available for the benefit of the reader.

In sum, substance and relevant part, the evidence in this case is as follows: The student’s provider stated that the student has an authorization for (5) hours per week of SETSS services during the student's 2018-2019 school year. (T-9) She believes the student needs upwards of (9) hours per week of services, which she did provide. (T-10)

The providers agency's “CEO, Director & Owner” testified that the agency provides services to students of all ages, from “K through 12.” (T-13) They actually provided (9)

hours per week of services to the student. (T-14) He told that Parent that she was liable for the entire (9) hours per week of services at the rate of $140 per hour. (T-14-5)

The Parent agreed. (T-15) He pays the actual provider $90 per hour. (Id.)

Special Education Teacher Support Services (“SETSS”) are not defined in State or federal laws or regulations and are not identified on the State continuum of special education services. (See SRO No. 16-044) A reference to the service as "direct" is in keeping with the language used in State regulations for consultant teacher services (See 8 NYCRR 200.6[d]) State regulations do distinguish between "direct consultant teacher services," which consist of "specially designed individualized or group instruction provided by a certified special education teacher . . to a student with a disability,” from "indirect consultant teacher services," which consist of "consultation provided by a certified special education teacher . . .to regular education teachers” (8 NYCRR 200.1[m] [emphasis added]; see 8 NYCRR 200.6[d)).

The DOE issued an “authorization” for the student's SETSS services. (P-E)

However, beyond the providers agency head testifying that the Parent agreed to (9) hours of SETSS services per week at the rate of $140 per hour for the student’s 2018-2019 school year (T-14-5), there is no evidence in the hearing record to establish that the Parent has incurred any financial obligation to pay the difference between the enhanced rate and the rate the DOE normally pays for such services. There is no evidence of a specific arrangement or a contract or an actual agreement the Parent has made with the provider, to pay the provider if the impartial hearing process did not result in an award of the enhanced rate. In this regard, I find the provider's testimony that the student needed an additional (4) hours over what was approved, at an enhanced rate, self-serving in light of the fact that there is no evaluative or documentary evidence supporting the same. The Parent did not testify or corroborate the SETSS provider's testimony.

Therefore, even if the Parent prevailed on the merits of her claim, it would be unclear at this juncture whether or not any relief would be warranted absent evidence that the provider was owed additional compensation based on an enforceable agreement with the Parent or the DOE. However, the evidence in the hearing record does support a finding that the DOE failed to make available to the student special education programs and services on an equitable basis. (See Educ. Law § 3602c[2][b][1]) I will order the DOE to pay the student’s SETSS provider at the established DOE rate for (5) hours per week of SETSS services at the established DOE rate.

Based upon the DOE’s default, its violation of FAPE in this case and the uncontroverted testimony regarding the appropriateness of the student’s receipt of SETSS services, as well as in the documents received in evidence, there is no basis in the record to deny the Parent's request for relief where indicated below. Accordingly, I find that the relief sought meets the unique needs of the student and permits the student to benefit from instruction. (Gagliardo & Frank G., Supra)

For all of the reasons stated herein, the Parent's request for relief must be granted where indicated below.

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 directly pay the cost of the student's of (5) hours per week of SETSS services at the DOE rate, for the entirety of the student’s 2018-2019 school year; and it is further

ORDERED that the DOE shall immediately conduct evaluations of the student in all areas of her suspected disabilities not evaluated within the last two years, for the 2020-2021 school year; and it is further

ORDERED 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 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: February 13, 2020

New York, New York Cillgar De Leon ~ FSA

O

PLEASE TAKE NOTICE

The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. Directions and forms can be found on the Office of State Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview.html

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For #of Pages

N/A N/A N/A DOE N/A

DPC 05/03/19

7TMmM>OQOW

PARENT 03

Withdrawn / Not Received N/A PARENT N/A License 02/10/19 PARENT 01

Resume undated PARENT 01

Authorization Form 09/01/18 PARENT 02

Call List 08/2018 PARENT 01

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