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FINAL ORDER
Case Number: 183205
NYS Identifier Number N/A
Student’s Name: [“Confidential”]
Date of Birth:
District:
Hearing Requested By: Parent
Dates(s) of Hearing: 06/29/20
Actual Record Close Date: 06/29/20
Hearing Officer: Edgar De Leon
NAMES AND TITLES OF PERSONS WHO APPEARED
Name Title For Date DOE Representative DOE 06/29/20 (T) Attorney PARENT 06/29/20 (T)
Father PARENT 06/24/20 (T)
On May 28, 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 an year old student attending a private school and the New York City - Department of Education (“DOE”) - District: , regarding the student’s special education program. I 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 June 29, 2020. 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 22, 2019.
The DPC is carried under New York City (“NYC”) . The Parent herein alleges that the student was denied a “free and appropriate public education” (“FAPE”)
for the 2018-2019 school year in that he could not procure a DOE SETSS provider to service the student. At the impartial hearing, the Parent seeks the following relief:
(a) Allowance of funding by the DOE to pay the student’s SETSS provider/agency for (3) hours a week of enhanced rate SETSS services for the full 2018- 2019 school year; and
(b) Such other and further relief as is appropriate.
This decision and order is written from the undersigned’s memory and notes and without reference to the transcript which has not yet been received prior to the compliance date in this case. It is noted that neither side presented any testimony at the hearing.
The DOE did not submit any documents in evidence. The Parent submitted (5)
documents in evidence. The parties agreed and requested that the decision and order in this case be based solely upon the Parent’s submissions.
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, at which time the Parent appeared with his attorney(s), , , P.C., attorney assigned and the DOE by its representative, ; and
Whereas the 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); and
Whereas 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 [2nd Cir. 2005]); and
Whereas the DOE failed to call any witnesses to testify on its behalf, did not submit any documents in evidence, failed to file and serve an answer or serve a “Prior Written Notice” in this case, and did not even make an opening or a closing statement. (See 20 U.S.C. 1415(f)(3)[e]); and
Whereas “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; and
Whereas 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, 4th 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])
Whereas 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]); and
Whereas here, the DOE did not proffer any evidence that it has offered the student a FAPE, which amounts to a concession that the agency did not offer the student a FAPE; and
Whereas 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]); and
Whereas 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; and
Whereas 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 (1st 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); and
Whereas here the DOE did not present a case-in-chief and did not controvert the documentary evidence submitted by the Parent; and
Whereas 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; and
Whereas I find the documentary and testamentary evidence submitted by the Parent in this case to be credible and uncontroverted in this case; and
Whereas 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; and
Whereas 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); and
Whereas 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'"]); and
Whereas 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; and
Whereas 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]; and
Whereas 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; and
Whereas 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; and
Whereas 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]); and
Whereas 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. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65); and
Whereas 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]); and
Whereas the 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, III, ¶2) (See Schaffer v. Weast, 546 U.S. 49, 58-
62 [2005] (emphasis added); 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. (SRO No. 16-044); and
Whereas 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]); 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 the DOE does not dispute that the student is entitled to receive SETSS services during the 2018-2019 school year; and
Whereas the DOE Authorization form for SETSS services submitted in evidence states: “If you need assistance locating a provider, or if you have any questions, please contact the DOE person listed In Section 1 of this form.” (P-B); and
Whereas the record is devoid of evidence any compliance on the part of the Parent with the DOE’s instruction above; and
Whereas the record evidences the Parents’ efforts to procure a SETSS provider from the DOE list of providers on (10) occasions, from September 2, 2018 through December 13, 2018 (P-C); and
Whereas the “Call List of Providers” submitted in evidence by the Parent, which is submitted as proof of the Parent’s efforts to procure a DOE provider from September 2, 2018 through December 13, 2018, was not endorsed until March 4, 2019 (P-D); and
Whereas the “agreement” submitted in evidence by the Parent is signed only by the Parent and is not signed by the independent SETSS provider or her agency, thus not requiring the agency or the independent provider to perform under the purported agreement (P-E); and
Whereas the Parent submitted the teacher certificate of the student’s purported independent SETSS provider in evidence, but the record id devoid of services having been actually rendered (P-C); and
Whereas no evidence that the Parent paid for the independent SETSS provider’s service during the 218-2019 school year, or thereafter, and the purported agreement submitted in evidence indicates that the Parent was not invoiced for services rendered during the 2018-2019 school year, or as of yet, any time thereafter (P-E); and
Whereas the agreement submitted in evidence by the Parent states in relevant part as follows:
Dear Parent,
Thank you for choosing LLC (the “Provider”) to provide your child special education teacher support services (SETSS) for the 2018-2019 school year. The Provider agrees to provide SETSS to your child for the 2018-2019 school year under the following terms:
• The rate of the Provider for the SETSS provided to your child is $140.00 per hour. • The Provider acknowledges that you will commence an impartial hearing requesting the DOE to fund the amount the Provider is charging you for providing SETSS to your child. • The Provider agrees to (i) wait until the conclusion of the hearing before issuing any invoices for the SETSS provided to your child; and (ii) accept payment for the SETSS provided to your child directly from the DOE if you succeed at the hearing. • If at the impartial hearing you do not obtain funding for all the amounts charged by the Provider for the SETSS provided to your child, the Provider will issue an invoice to you for all amounts not awarded. Payment will be due 30 days after receipt of such invoices. (P-E); and
Whereas there is no evidence in the hearing record to establish that the Parent has incurred any bona fide financial obligation to pay the difference between the enhanced rate and the DOE rate; and
Whereas the record does not evidence that the Parent made a bona fide "specific arrangement" or otherwise enter into a bona fide enforceable "contract" with the provider to pay the provider if the impartial hearing process did not result in an award of the enhanced rate, although the same is intim ated by the “agreement” received in evidence
(P-E); and
Whereas there is no testimony on the part of the Parent indicating that if he were unsuccessful at the impartial hearing, he would pay the difference between the DOE's rate and the enhanced rate, even if he could not afford that, or even that he would try to figure something out; and
Whereas therefore, even if the Parent prevailed on the merits of his 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; and
Whereas the Parent’s failure to submit any evidence that he complied with the DOE’s
SETSS Authorization form, requiring that “If you need assistance locating a provider, or if you have any questions, please contact the DOE person listed In Section 1 of this form. ”
(P-B); and Whereas as such, it is unnecessary to speculate on this state of affairs since the absence of evidence of the Parent’s outreach to the DOE as required by the DOE’s
SETSS Authorization form does not 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 § 3602-c[2][b][1]) (Id.); and
Whereas with respect to equitable considerations, a Parent may be denied tuition reimbursement and/or relief upon a finding of a failure to cooperate with the DOE (see
Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999] and SRO Nos.:
04-102 & 04-026); and
Whereas a proposed “Final Order” based upon the Parent’s submissions is consented to by all the parties having been presented to this IHO on the record as being in the best interest of both parties; and
Whereas this IHO having determined that the parties’ consent to the proposed “Final Order” based upon the Parent’s submissions was made knowingly, intelligently and voluntarily; and
Whereas the parties’ oral arguments, discussions, concessions, documentary evidence and this order having been recorded; Now, therefore, it is hereby
ORDERED upon the DOE’s DEFAULT and after INQUEST 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 the cost of the student’s receipt of SETSS services for (3) hours a week at the established DOE rate, for the entirety of the student’s 2018-2019 school year; and
ORDERED upon the DOE’s DEFAULT and after INQUEST that the DOE shall also conduct a re-evaluation 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 upon the DOE’s DEFAULT and after INQUEST that the CSE shall forthwith reconvene to produce a new IEP 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 upon the DOE’s DEFAULT and after INQUEST 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, withdrawn by the Parent, outside the scope of the IHO’s authority or unsupported by the record.
DATED: July 1, 2020 _______________________
New York, New York Edgar De Leon - I.H.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
A DPC 05/22/19 PARENT 03
B Authorization Form 09/01/18 PARENT 02
C License 12/08/18 PARENT 02
D Calls to Providers 03/04/19 PARENT 01
E Agreement 09/01/18 PARENT 01
N/A N/A N/A IHO N/A