New York City Department of Education, Impartial Hearing Decision

FINAL ORDER - PENDENCY & MERITS

Case Number: 184952

NYS Identifier Number

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 10/17/19 & 11/26/19

Actual Record Close Date: 02/14/20

Hearing Officer: Edgar De Leon

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For # of Pages

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

A IHR 07/02/19 PARENT 05

B FOFD 11/02/17 PARENT 17

C Affidavit of 07/29/19 PARENT 05

D Invoices 09/2019 PARENT 07

E Progress Report undated PARENT 09

F Progress Report 10/2019 PARENT 04

G Progress Report 04/2019 PARENT 02

H Affidavit of Parent 11/19/19 PARENT 09

I Closing Statement 12/18/19 PARENT 21

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

On July 26, 2019, I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1), Part 200 of the Regulations of the Commissioner of Education and Section 504 of the Rehabilitation Act of 1973, concerning a dispute between the Parent of a year old student currently not in 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 adjournments were granted at the request of and with the consent of the parties or for good cause, the pendency and impartial hearing was held on October 17, 2019 and November 26, 2019. The Parent opted to submit a written closing statement that was received on December 18, 2019. (T-27-8 & P-I) A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.

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), the and received at the Department of Education Impartial Hearing Office (“DOE-IHO”)

on or about July 2, 2019. The DPC is carried under New York City (“NYC”) Case No.

184952. Therein, the Parent alleges that the student was denied a “free and appropriate public education” (“FAPE”) for the 2018-2019 and 2019-2020 school years.

At the impartial hearing, the Parent seeks the following relief:

(a) A finding that the student was denied a FAPE under the IDEA, Section 504, and the ADA; and

(b) A finding that the Parent was denied an opportunity to participate in the decision-making process regarding the provision of a FAPE and caused a deprivation of educational benefits; and

(c) An order that the DOE fund after-school PROMPT therapy of three 45- minute sessions per week, at market rate, for the entire 2019-2020 school year; and

(d) Home-based 1:1 ABA instruction, Speech-Language Therapy, and Occupational Therapy by providers of the Parent’s choice, at enhanced rates; and

(e) Payment of attorney fees and expenses.

The Parent’s DPC requested an “Order on Pendency” the hearing of which was held after the “resolution period” had ended.

A pendency hearing held during a resolution period does not commence the impartial hearing timeline. (See NYSED Memo - Questions Relating to Impartial Hearing Procedure, Sept. 2016) As such, a hearing to discuss and determine the pendency placement of the student may occur during a resolution period but such a hearing held at that time does not commence the impartial hearing itself until the resolution period has expired. (Id.) However, an impartial hearing may commence with a “pendency hearing” if it is the first hearing to take place within 14 days of (a) or (b) of section 200.5(j)(3)(iii) of the regulations, i.e., after the resolution period has expired.

(Id.)

THE PARENT’S PENDENCY REQUEST

The Parent request an “Order on Pendency” based upon the Findings of Facts & Decision of IHO in Case No. , dated November 2, 2017, which in relevant part states:

I now therefore ORDER that the district convene a CSE review and add to the Related Services section of the IEP, 3 (three) sessions weekly of 1:1 speech therapy at district expense, outside the school day; the IEP must include the fact that these services be provided by a clinician trained in utilization of the PROMPT research-validated technique. Such services are to be provided o.t a rate not to exceed $155 for the current school year. A copy of this Order is to be provided to all persons participating in the CSE review prior to the commencement of that review. (T-7-10 & P-B)

The DOE did not oppose the Parent’s request for “pendency” and stated that it would not defend this case. (T-10) The DOE also did not object to the Parent’s documentary submissions. (T-13) The agency also declined to cross examination the Parent’s witness who testified on direct examination via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f]. (T-14 & P-C)

THE DOE’S ARGUMENT AGAINST PENDENCY

The DOE offered no opposition to the Parent’s request for an “Order on

Pendency.” (Supra) As noted above, the DOE declined to call and witnesses or submit any documents in evidence and reaffirmed that it would not cross-examine the Parent’s witnesses. (T-24-5, P-C & P-H)

ORDER ON PENDENCY

Pendency is based on the student’s “then-current educational placement,” which the Second Circuit has defined as “(1) ‘typically the placement described in the child's most recently implemented IEP,’ (Johnson v. Special Educ. Hearing Office, 287 F.3d 1176, 1180 [9th Cir. 2002]); (2) ‘the operative placement actually functioning at the time

... when the stay put provision of the IDEA was invoked,’ (Drinker v. Colonial Sch. Dist., 78 F.3d 859, 867 [3d Cir. 1996]); and (3) ‘[the placement at the time of] the previously implemented IEP,’ (Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618, 625 [6th Cir. 1990]); Mackey v. Bd. of Educ., 386 F.3d 158, 163 [2d Cir. 2004])

The then-current educational placement can be superseded by an agreement between the parties during the proceedings to change the student's placement or a final, unappealed decision on the merits by an impartial hearing officer, state review officer, or court. SRO Appeal No. 05-011; see also Bd. of Educ. v. Schutz, 290 F.3d 476, 483-84 (2d Cir. 2002); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 86 F. Supp. 2d 354, 366 (S.D.N.Y. 2000), aff'd, 297 F.3d 195 (2002); Application of a Student with a Disability, Appeal No. 08-107; Letter to Hampden, 49 IDELR 197 (OSEP 2007); Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *23 (E.D.N.Y. Oct. 30, 2008)

It is indisputable that the Findings of Facts & Decision of IHO in Case No. , dated November 2, 2017, constitutes “pendency” in this case. (P-B)

I find that the student is entitled to those services under pendency, retroactive to the date the Parent filed his instant DPC.

THE DOE’S CASE ON THE MERITS

As noted above, the DOE did not oppose the Parent’s request for “pendency”, stated that it would not defend this case, did not object to the Parent’s documentary submissions and declined to cross examination the Parent’s witness who testified on direct examination via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f]. (T-10-4, 24-5, P-C & P-H)

THE PARENT’S CASE ON HE MERITS

The Parent called (2) witnesses to testify on her behalf via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f] and submitted (9) documents in evidence. (P-c & P-H) In sum, substance and relevant part, the testimony and documentary evidence for and against the Parent’s case is incorporated in the decision below.

FINDINGS OF FACTS & DECISION

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 [2nd 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 [2nd 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][ii] 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-10-4, 24-5, P-C & P-H) “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, 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]) 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 (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)

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-10-4, 24-5, P-C & P-H) 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 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 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)

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 and 2019-2020 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 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-10-4, 24-5, P-C & P-H) The credibility of the Parents’ documentary and testamentary evidence is completely uncontroverted by the agency. (Id.) The uncontroverted evidence need not be restated as the transcript of the proceeding, the sworn testimony and the documentary evidence is annexed hereto and available for the benefit of the reader. In sum, substance and relevant part, the Parent’s evidence in this case is completely credible and conclusive in favor of the Parent.

There is nothing in the record that sustains a finding that the Parent has not cooperated with the CSE. For all of the reasons stated herein, the undersigned finds that the relief sought by the Parent, to the extent indicated below, is appropriate

NOW therefore, it is hereby

ORDERED upon the DOE’s DEFAULT and after INQUEST that pursuant to the pendency provisions under the IDEA, the student shall receive the placement and services provided under Findings of Facts & Decision of IHO in Case No.

, dated November 2, 2017, the costs of which are to be paid by the DOE upon the agency’s receipt of reasonably satisfactory proof of said services having been rendered, retroactive to the date the Parent filed her instant DPC until the date of this decision indicated below, which will terminate this order on pendency and the terms of the decision below shall become effective; and it is further

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 receipt of compensatory after-school PROMPT therapy of three 45-minute sessions per week, at the rate of $155 per 45-minute session (for sessions provided during July-August 2019)

and at $165 per 45-minute session, for sessions provided from September 1, 2019 until the end of the 2019-2020 school year, depending upon which comes first, compensatory services of 1:1 ABA special education instruction (20 hours per week), speech-language therapy (4x30 per week) and occupational therapy (2x30 per week)

from July 2, 2019 until the end of the 2019-2020 school year, home-based 1:1 special education instruction by a teacher trained in ABA methodology, for (20) hours per week, for the remainder of the 2019-2020 school year, Speech-Language Therapy services, for four 30-minute sessions per week, for the remainder of the 2019-2020 school year, Occupational Therapy services, for two 30-minute sessions per week, for the remainder of the 2019-2020 school year, all of the services with the exception of the PROMPT services ordered above, to be provided at a cost that does not exceed the reasonable and fair market rate cost for such services in New York City; 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 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: February 20, 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

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date DOE Representative DOE 10/17/19 11/26/19 Attorney PARENT 10/17/19 11/26/19

Mother PARENT 10/17/19 11/26/19 Interpreter PARENT 11/26/19