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FINAL ORDER - DOE DEFAULT & INQUEST
Case Number: 183236
NYS Identifier Number
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Dates(s) of Hearing: 04/22/20
Actual Record Close Date: 07/13/20
Hearing Officer: Edgar De Leon
NAMES AND TITLES OF PERSONS WHO APPEARED
Name Title For Date DOE Representative DOE 04/22/20 (T) Attorney PARENT 04/22/20 (T)
Mother PARENT 04/22/20 (T) Special Ed. Teacher PARENT 04/22/20 (T)
On June 3, 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”) - , 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 April 22, 2020. A list of the persons who appeared at the hearing in person and via affidavits 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 Parents’ attorney(s), the and received at the Department of Education Impartial Hearing Office (“DOE-IHO”) on or about May 24, 2019. The DPC is carried under New York City (“NYC”) Case No.
183236. 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) A determination be made that the DOE failed to afford the student a FAPE for the school year 2018-2019; and
(b) A determination be made that the student is entitled to provision of the SETSS services at the rate of one hundred twenty dollars ($120.00) an hour for ten (10)
hours a week for the 2018-2019 10-month school year, including the hours billed since commencement of the 2018-2019, 10-month school year on September 7, 2018; and
(c) A determination be made that provision of the SETSS services at the rate of one hundred twenty dollars ($120.00) is warranted under pendency; and
(d) Attorney fees; and
(e) Such other relief as may be just and equitable be granted.
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 of 1973; and
Notice having been duly given to the DOE; and
The matter having come on for an “impartial hearing” before this IHO on April 22, 2020, and the parties having agreed to have this decision/order made on submission of oral arguments and testamentary and documentary evidence; and
The Parent having appeared with her attorney(s), the , attorney assigned and the DOE by its representative, ; and
The DOE having failed to call any witnesses to testify on its behalf, or submit any documents in evidence (T-7 & 15); and
Whereas the DOE did not object to any of the Parent’s documentary submissions being received in evidence (T-9); and
Whereas the DOE agrees that (10) SETSS periods are appropriate for the student but objects to the enhanced rate that is charged, of $120, and argues that the services should be provided on the basis of (36) weeks as there are (180) school days, divided by 5 days (T-11-2); and
Whereas the student’s private SETSS provider testified on direct examination via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f] and stated that she provided SETSS services to the student from September 5, 2018 through June 30, 2019 and charged one hundred and twenty dollars ($120) an hour for the services (P-F); and
Whereas the private SETSS provider further testified that for her services she charged the agency and is paid by that agency, which she has a verbal contract with and that she works for that provides the children's needs at the student’s school (T-22-3
& 33); and
Whereas the private SETSS provider testified that she does not have a contract with the Parent for her services (T-24); and
Whereas (11) pages of undated invoices were submitted in evidence for services rendered from September 4, 2018 to June 13, 2019, with an illegible scribble for a signature, no names printed on the invoices and with the private providers agency and the student’s name indicated (P-H); and
The Parents thus to agreeing to conduct an inquest regarding their damages and the relief they seek, and this “Final Order” consented to by the Parents based upon their testamentary and documentary submissions, having been presented to this IHO on the record as being in the best interest of the Parent; 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 (T-7 & 15); and
Whereas the DOE failed to file and serve an answer or serve a “Prior Written Notice” in this case. (See 20 U.S.C. 1415(f)(3)(e); and
Whereas “Prior Written Notice” meaning 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, or that 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) and additionally, as a general matter, the parties to an impartial hearing are obligated to comply with the reasonable directives of the Impartial Hearing Officer (
“IHO”) regarding the conduct of the impartial hearing. (SRO No. 05-026, 04-103 and 04-
061); 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 as noted above, 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, and required to provide the student with SETSS services pursuant to the Findings of Facts & Decision in NYC Case , dated February 21, 2019 (P-B) and the parties
Stipulation of Settlement dated February 7, 2018, NYC Case ,; and
Whereas as noted above, 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 the Parent with the relief sought; and
Whereas as noted above, the DOE failed failed call any witnesses or to present a case-in-chief, did not submit any documents in evidence and did not controvert the testimony on behalf of the Parent during cross examine of the Parent’s affiant witness (T-
7, 11 & 36-45) and the DOE also failed to file and serve an answer or serve a “Prior Written Notice” in this case. (See 20 U.S.C. 1415(f)(3)(e); and
Whereas as noted above, “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 notifies the Parent of the agency’s rational for its position and recommendations; and
Whereas as noted above, silence in a responsive pleading is an admission, or that 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); and
Whereas as noted above, under the IDEA, 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 as noted above, the DOE did not present any direct case or proffer any substantive evidence that it has offered the student a FAPE or that the Parent is not entitled to the SETSS services sought and there is a tacit concession that the agency did not offer the student a FAPE as required by law in that the DOE did not present a case-in-chief, did not serve and file an answer in the case, nor did the agency serve the Parent with “Prior Written Notice”, which could provide a denial of the Parent’s allegation, and that the Parent is entitled to the relief sought; and
Whereas although 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 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 crossexamination, 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 made no substantive effort to controvert the testamentary and documentary evidence submitted by the Parent and the credibility of the testamentary and 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 completely uncontroverted and conclusive in this case; and
Whereas 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 the Parent is entitled to the relief she seeks and 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 because 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 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 is entitled to the relief she has requested; and
Whereas when turning 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 Parent’s 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 her to benefit from the instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65); and
Whereas 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); and
Whereas 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); and
Whereas 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); and
Whereas the 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) and 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"]]); and
Whereas there is no 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]); and
Whereas 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]); and
Whereas 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]); and
Whereas the record in this case is completely uncontroverted by the DOE and supports a finding that the Parent is entitled to the SETSS services sought (supra) and it is unfortunate that the agency forced the Parent in this case to bring the matter to a hearing, when it offered no evidence that it provided the student with a FAPE and then did not challenge the Parents’ assertion regarding the appropriateness of the relief sought; and
Whereas the DOE did not initiate this impartial hearing (DPC); 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
Whereas there being nothing in the record consisting solely of the Parent’s testamentary and documentary submissions that sustains a finding that the Parents have not cooperated with the CSE; and
Whereas the Parent has submitted the testimony of (1) witness on direct examination, live and not via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f] (P-F); and
Whereas the Parents’ testamentary and documentary submissions are completely and unequivocally uncontroverted and need not be repeated herein in their entirety as they are annexed hereto for the benefit of the reader; and
Whereas SETSS services 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); 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 Parent submitted (11) invoices in evidence from the Parent’s private SETSS provider for services asserted to have been rendered from September 4, 2018 to June 13, 2019, allegedly signed by the private provider but all undated (P-H); and
Whereas the SETSS Authorization form provided to Parents by the DOE 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.”; and
Whereas the record is devoid of any compliance by the Parent with the SETSS Authorization form request; and
Whereas equitable considerations are relevant to fashioning relief under the IDEA. (See Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194, M.C. v. Voluntown
Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000], and Carter, 510 U.S. at 16 [noting that
"[c]ourts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]) The IDEA also provides that reimbursement may be reduced or denied when Parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the Parents. (See 20 U.S.C. § 1412[a][10][C][iii], 34 CFR 300.148[d], E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school] and C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]); and
Whereas it is well settled that IHOs and SROs do not have enforcement powers and that enforcement of an order or an agreement by the parties, such as the decision or Stipulation of Settlement in this case, can properly be sought by filing an administrative complaint with the State Education Department's Office of Vocational and Educational Services for Individuals with Disabilities (VESID) pursuant to applicable federal and state regulations, or in federal court under 42 U.S.C. § 1983. (See 34 .R.
§§ 300.151-300.153, 8 NYCRR 200.5[l], A.T. v. New York State Educ. Dep't., 1998 WL 765371, at *7(E.D.N.Y. 1998), Blazejewski v. Bd. of Educ., 560 F. Supp. 701 (W.D.N.Y.
1983), SRO Nos.: 06-130, 04-085 & 99-004), see also A.R. v. New York City Dep't of Educ., 407 F.3d 65, 78 n.13 (2nd Cir. 2005) (noting that IHOs have no enforcement mechanism of their own), SRO Nos.: 04-100 & 04-007 (recognizing that enforcement of prior orders of an IHO and/or a SRO are not properly determined by a SRO), SRO No.:
03-071 (holding that petitioner's enforcement remedies include judicial enforcement pursuant to CPLR Article 78, an action in federal court, or VESID administrative complaint procedure), SRO No. 01-086 (holding that petitioner's enforcement request was not properly before a SRO; petitioner's remedy was to seek judicial enforcement of the IHO's tuition reimbursement award), SRO No. 99-4, (holding that respondent's remedy was to seek enforcement in state or federal court, citing Blazejewski, 560 F.
Supp. 701, A.T., 1998 WL 765371) and SRO Nos.: 06-044, 02-086, 04-006, 02-011 &
97-64); and
Whereas the SETSS provider asserts she was paid of a rate of a $120 an hour, by her agency, not by the Parent (supra); and
Whereas the DOE agrees that the student is entitled to ten (10) hours a week for the 2018-2019 10-month school year, but not at the rate of $120 per hour (supra); and
Whereas the private SETSS provider testified that she has a “verbal” contract the agency and does not have a contract with the Parent, thus reflecting that it is the agency that is financially obligated to pay for her services (supra); and
Whereas the record reflects that SETSS services were actually provided to the student (supra); and
Whereas the record does not evidence the Parent’s cooperation with the requirements of the DOE’s SETSS Authorization form (supra); and
Whereas the invoices submitted in evidence are undated and do not indicate having been paid (P-H); and
Whereas the record indicates that the private SETSS provider works on a 1099 basis as an independent contractor on a “verbal” contract with the agency (supra); and
Whereas the record evidence that it may be the agency and not the Parent that pays the private provider $120 per hour (supra); and
Whereas the record above does not evidence that the Parent has actually incurred any financial obligation to pay the difference between the enhanced rate and the DOE rate, even if the agency paid the private provider directly as stated at the hearing (supra); and
Whereas the record does not indicate the Parent made a specific undisputable and enforceable arrangement or otherwise enter into an enforceable contract with the provider or the provider’s agency to pay either party 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 or the provider agency was owed additional compensation based on an enforceable agreement with the Parent or the DOE; and
Whereas it is unnecessary to speculate on this case since the evidence in the hearing record does not support a finding that the DOE failed to make available to the student special education programs and services on an equitable basis since there is no credible evidence that the Parent or the private agency contacted DOE as instructed in the SETSS Authorization received in evidence (see Educ. Law § 3602-c[2][b][1] & P-B); and
Whereas the DOE has failed to meet its burden under the law and the Parents’ submission clearly reflects that the SETSS services sought meet 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 this IHO having determined that the parties’ consent to the manner of determining this “Final Order” was made knowingly, intelligently and voluntarily; and
Whereas the Parents’ oral arguments, discussions, concessions, testamentary and documentary evidence and this order having been recorded and annexed hereto; NOW therefore, it is hereby
ORDERED on 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 receipt of ten (10)
hours a week of SETSS services for the 2018-2019 10-month school year, including the hours billed since commencement of the 2018-2019, 10-month school year, at a rate not to exceed the established DOE rate for such services; and it is further
ORDERED on the DOE’s DEFAULT and after INQUEST that the DOE shall forthwith conduct a re-evaluation of the student in all areas of her suspected disabilities not evaluated within the last two years; and it is further
ORDERED on the DOE’s DEFAULT and after INQUEST that the CSE shall forthwith reconvene and consider all of the student’s evaluations upon their completion and any other relevant information and produce a new IEP for the remainder of the student’s 2020-2021 school year; and it is further
ORDERED on 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 18, 2020 _____________________________
New York, New York Edgar De Leon - I.H.O.
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the PublicSchool 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
N/A N/A N/A DOE N/A
A IHR 05/24/19 PARENT 03
B Decision 02/21/19 PARENT 04
C Stipulation of Settlement 02/07/18 PARENT 05
D Authorization for SETSS 09/01/18 PARENT 02
E Withdrawn / Not Received N/A PARENT N/A
F Affidavit of 12/31/19 PARENT 01
G Teacher Certificate undated PARENT 01
H Invoices 2018-2019 PARENT 11
N/A N/A N/A IHO N/A