New York City Department of Education, Impartial Hearing Decision

FINAL ORDER - DOE DEFAULT & INQUEST

Case Number: 182937

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: 02/17/20

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 Grandparent PARENT 09/04/19

On May 8, 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 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 who appeared at the hearing and the documents entered into evidence is annexed hereto.

BACKGROUND

This case was initiated as the result of a written Due Process Complaint (“DPC”) made by the student's Parent’s 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. 182937. The Parent herein alleges that the student was denied a “free and appropriate public education” (“FAPE”) for the 2018-2019 school year. At the impartial hearing, the Parent request the following relief: (a) An order for the student awarding (3) periods per week of enhanced rate SETSS services in retroactively for the 2018-2019 school year; and (b) Payment to the student’s SETSS provider/agency for (3) hours a week of enhanced rate SETSS services for the full 2018-2019 School Year; and (c) Such other and further relief as is appropriate.

FINAL ORDER

The Parents’ DPC having been duly filed 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; and Notice having been duly given to the DOE; and The matter having come on for an “impartial hearing” before this IHO on September 4, 2019, the parties agreed to have this decision/order made on the submission of oral arguments and testamentary and documentary evidence; and The Parent appeared with her attorney(s), , attorney assigned and the DOE by its representatives, ; and The parties thus to agreeing to waive a hearing on the merits; and a proposed “Final Order” consented to by all the parties based upon the parties’ oral, testamentary and documentary submissions, having been presented to this IHO on the record as being in the best interest of both parties; and Whereas under the IDEA, the burden of persuasion in an administrative hearing is placed upon the party seeking relief. (See Schaffer v. Weast, 546 U.S. at 59-62) On August 15, 2007, the New York State Legislature amended the Education Law to place the burden of proof upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement would continue to have the burden of proof regarding the appropriateness of such placement. (See Educ. Law

§ 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended statute took effect for impartial hearings commenced on or after October 14, 2007. (SRO No. 08-016); and Whereas the DOE having failed to submit any testamentary or documentary evidence to meet it burden under the law, or to successfully challenge the testamentary and documentary evidence submitted by the Parent (T-4-7); and Whereas 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]); and Whereas to demonstrate the appropriateness of the relief sought, the Parent need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of the student, supported by such services as are necessary to permit the student to benefit from instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65); and Whereas in the absence of evidence demonstrating that the Parent has 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 the relief sought by the Parent, including but not limited to tuition reimbursement. (SRO No. 04-049); and There being nothing in the record consisting solely of the Parent’s oral, testamentary and documentary submissions that sustains a finding that the Parent has not cooperated with the CSE; and Whereas the Parent has submitted the testimony of (1) witness on direct examination via affidavit pursuant to 8 NYCRR 200.5/j][3][xii][f], (P-D) and the DOE having declined it right to contest that testimony and/or cross examine the Parent’s witnesses (T-7); and Whereas the Parent's oral, testamentary and documentary submissions are completely and unequivocally uncontroverted and need not be repeated herein as they are annexed hereto for the benefit of the reader; and Whereas the DOE has failed to meet its burden under the law and the Parent’s submission clearly reflects that the relief sought meets the unique needs of the student, supported by such services as are necessary that permits the student to benefit from that relief. (Gagliardo & Frank G., supra); and Whereas there is no evidence that the Parent has not cooperated with the DOE; and This IHO having determined that the parties’ consent to the manner of determining this “Final Order” being based on the record and was made knowingly, intelligently and voluntarily; and The parties’ oral arguments, discussions, concessions and this order having been recorded and annexed hereto; and Whereas “SETSS’” are not defined in State or federal laws or regulations and are not identified on the State continuum of special education services. 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] & SRO No. 16-044); and Whereas State regulations 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]); and Whereas there is no invoice submitted by the DOE reflecting that the agency has paid the SETSS provider for services rendered during the 2018-2019 school year at the DOE rate; and Whereas there is no credible 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 DOE rate; and Whereas there is no credible evidence of a specific arrangement or a valid enforceable contract or an actual enforcement agreement with the provider to pay the provider if the impartial hearing process did not result in an award of the enhanced rate; and Whereas 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 agreement with the Parents or the DOE; and Whereas it is undisputable that the student was entitled to special education programs and services and specifically (3) periods per week of SETSS services in for the student's 2018-2019 school year, pursuant to her IESP dated September 19, 2017, ata minimum at the normal DOE rate (P-C & Educ. Law § 3602-c[2][b][1]);

Now, therefore, it is hereby

ORDERED that upon the DOE’s receipt of reasonably satisfactory proof of said services having been rendered, the DOE shall either reimburse the Parent and/or directly pay the cost of the student's receipt of (3) periods per week of SETSS services

In for the entirety of the student's 2018-2019 school year, at the normal DOE rate; and it is further

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

ORDERED that the CSE shall forthwith reconvene to produce a new IESP for the student that considers all of the student’s available evaluations and any related 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 “Final Order’ is found to be either resolved by the parties, agreed to by the parties, withdrawn by the Parent, outside the scope of the IHO’s authority or unsupported by the record.

DATED: March 1, 2020

New York, New York Edgar Ce Leon ~ GAO

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 DOE N/A N/A

A DPC 05/03/19 PARENT 03

B Costs to Provider 02/25/19 PARENT 01

C IESP 09/19/17 PARENT 10

D Affidavit of 09/03/19 PARENT 01

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