New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION - DOE DEFAULT & INQUEST

Case Number: 185332

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

Date of Birth:

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 03/11/20

Actual Record Close Date: 08/24/20

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

DPC 07/10/19 PARENT 14

IEP 04/11/19 PARENT 30

Withdrawn / Not Received N/A PARENT N/A Neuropsychological Evaluation 11/01/19 PARENT 30

Withdrawn / Not Received N/A PARENT N/A

FBA 02/27/20 PARENT 05

Withdrawn / Not Received N/A PARENT N/A Parental Guarantee 11/25/19 PARENT 02

Class Schedule undated PARENT 01

Withdrawn / Not Received N/A PARENT N/A Affidavit of Ms. 02/12/20 PARENT 01

Affidavit of Ms. 02/24/20 PARENT 08

Autism Assessment 02/2020 PARENT 07

Affidavit of Ms. 03/11/20 PARENT 08

Withdrawn / Not Received N/A PARENT N/A Affidavit of Ms. 03/11/20 PARENT 05

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

On July 18, 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 and 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 Parents of a ( ) year old student attending a public school and the New York City - Department of Education (“DOE”) - District: |, regarding the student's special education program.

After having adjournments granted at the request of and with the consent of the parties, or for good cause, the impartial hearing was held on March 11, 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”) filed by the student’s Parent’s attorney(s), the and received at the Department of Education Impartial Hearing Office (“DOE-IHO”) on or about July 10, 2019. The DPC is carried under New York City (“NYC”)

185332. Therein, the Parent alleges that the DOE has failed to provide the student with 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) That the DOE denied the student a FAPE for the 2018-2019 and 2019-2020 school years; and (b) An interim order for immediate funding by the DOE of comprehensive independent evaluations, namely the neuropsychological, functional behavior assessment, behavior intervention plan, Autism Skills Assessment and any further testing that may be recommended as a result of the assessments; and (c) Compelling the DOE to provide payment for the independent neuropsychological evaluation either prospectively, or retrospectively, if the Parent is able to obtain the evaluations during the pendency of this hearing, at the known and provided specific rates, articulated in the July 9, 2019 letter for said evaluations: $4,800 for the neuropsychological, $1,350 for each OT, PT, and speech-language evaluations, and $1,850 for the assistive technology evaluation; and (d) An order that the DOE provide the Parent with individual Parent Training and Counseling; and (e) Anorder for additional tutoring services outside of school; and (f) An order for compensatory, or make-up related services; and (g) An order for attorney fees and costs in connection with representation in this matter; and (nh) — Any further relief that the Hearing Officer may deem just and proper.

At the hearing, the parties narrowed the scope of the relief sought by the Parent to her request for tuition reimbursement at a private school from December 2, 2019 to June 26, 2020, compensatory ABA services with BCBA, parent training and counseling and compensatory tutoring services. (T-5-6)

The parties’ agreed that the student is entitled (99) hours of speech and language therapy, (99) hours of occupational therapy, (66) hours of physical therapy, that the DOE will have (60) days to procure providers to provide those services and if at the end of (60) days, those services cannot be provided by the DOE, then the Parent can go out and get independent providers to provide those services at a rate not exceed the reasonable and fair market rate for those services in the city of New York. (T-6)

Regarding the Parent's request for tuition reimbursement, there is no dispute regarding the facts, and the parties agree that a decision be made solely on the submissions and that the scope of hearing is be limited to the relief regarding compensatory ABA services, and parent training and counseling. (T-6-7)

THE DOE’S CASE

The DOE did not call any witnesses to testify on its behalf and did not submit any documents in evidence. (T-8 & 22) The DOE did not defend “FAPE” and did not challenge the presumption in the law that the Parent has cooperated with the agency.

(Id.) In sum, substance and relevant part, the testamentary and documentary evidence for and against the DOE’s case is incorporated in the decision below.

THE PARENT’S CASE

The Parent called (4) witnesses to testify on her behalf, none of whom testified on direct testimony via affidavit pursuant to 8 NYCRR 200.5|j][3][xii][f]. (P-VV, P-WW, PYY & P-AAA) The DOE only crossed examined (1) of the affiants. (T-48 & 78) The Parent also submitted (11) documents in evidence. The DOE did object to some of the Parent’s documents being received in evidence. (T-15) In sum, substance and relevant part, the testamentary and documentary evidence for and against the Parent’s case is incorporated in the decision below.

FINDINGS OF FACTS & DECISION - DEFAULT & INQUEST

IDEA ensures that students with disabilities are afforded a free and appropriate public education (“FAPE”). (20 U.S.C. § 1400 & Schaffer v. Weast, 126 S.Ct. 528 [2005]) A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP. (20 U.S.C. 1401(8) & 141(d) and 34 C.F.R. § 300.13) The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. (Schaffer, 126 S.Ct. 528, 537)

The DOE may be required to reimburse Parents for their expenditures for private educational services obtained for a student, if the services offered by the DOE were inadequate or inappropriate, the services selected by the Parents are appropriate and equitable considerations support the parent’s claim. (Sch. Comm. Of Burlington v. Dept.

of Educ., 471 U.S. 359 (1985), Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2"° Cir. 2005])

The first step is to determine whether the DOE offered to provide the student a FAPE. (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2° Cir. 2000]) A FAPE is offered to a student when (a) the DOE complies with procedural requirements set forth in IDEA and (b) the IEP developed by the CSE through the procedures set forth in IDEA, is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. V. Rowley, 458 U.S. 176, 206-7 [1982]) The student’s recommended program must also be provided in the least restrictive environment (“LRE”). (20 U.S.C. § 1412(a)(5)(A), 34 C.F.R. § 300.550(b), 8 NYCRR §200.6(a)[1])

The Parent bears the burden of showing that the private school placement selected is appropriate. (SRO Nos.: 95-57, 94-29 & 93-34) The Parents must show that the private school placement offers an educational program that meets the student’s special education needs. (Burlington, 471 U.S. at 370 & SRO No. 94-20) The private school need not be approved by the state educational agency to provide instruction to children with disabilities. (Florence County School District Four et. al. v. Carter, 510 U.S. 7 [1993]). It is also not required that the private school employ certified special education teachers or have its own IEP for the student. (SRO No. 94-20)

Finally, the IHO must consider whether equitable considerations favor the Parents’ request for tuition reimbursement. State Review Officer (“SRO”) Decision 06-004 holds: Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties’ compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties’ positions, and like matters” (Wolfe _v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a_ claim of _ tuition reimbursement. (Application of a Child with a Disability, Appeal No. 04-049).

In Burlington, the Court found that Congress intended retroactive reimbursement to Parents by school officials as an available remedy in a proper case under the IDEA.

(Burlington, 471 U.S. at 370-71, Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186 at 192 [2d Cir.

2005]) “Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance” had it offered the student a FAPE. (Burlington, 471 U.S. at 370-71, 20 U.S.C. § 1412[a][10][C]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, 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) & T-8 & 22) “Prior Written Notice” means written statements developed in accordance with Section 200.5(a) of the Regulations of the Commissioner of Education, and provided to the parents of a student with a disability a reasonable time before the school district proposes to or refuses to initiate or change the identification, evaluation, or educational placement of the student or the provision of a free appropriate public education to the student.

It is noted that silence in a responsive pleading is an admission, and a counterclaim in federal practice is compulsory in the answer or deemed waived. (See New York Practice, 4°" Edition §§223 & 224, citing Federal Rules of Civil Procedure, Rule 13(a) & Cummings v. Dresher, 18 N.Y.2d 105, 108, 271 N.Y.S.2d 976, 218 N.E.2d 688, 690 [1966])

The DOE 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 evidence that it has offered the student a FAPE. (Supra) 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 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])

It would be fundamentally unfair to allow either party to rely solely on the submission of documents in meeting its burden under law, where those documents are rife with double, triple and even unidentified hearsay sources, that cannot be cross examined. While compliance with technical rules of evidence is not required in administrative hearings, under certain circumstances, the receipt of hearsay evidence may be so prejudicial as to have a tendency to deprive a party of fair hearing. (See Strain _v. Sarafan, 57 A.D.2d 525, 393 N.Y.S.2d 572, N.Y.A.D. (1977), where the hearsay testimony was of vital importance and should have been subjected to cross-examination by the petitioner...the petitioner was deprived of a meaningful hearing,_ Dukes v. New York City Housing Authority, 63 A.D.2d 690, 404 N.Y.S.2d 889, N.Y.A.D.

(1978), holding that the excessive reliance on hearsay evidence effectively denied petitioner the right to cross-examine adverse witnesses, Claim of Evans, 254 A.D.2d 564, 678 N.Y.S.2d 696, N.Y.A.D. (3 Dept. 1998), (where in an unemployment compensation proceedings, administrative law judge (‘ALJ’) properly exercised discretion to exclude hearsay evidence to protect employer's fundamental right of cross-examination, where claimant proffered written hearsay statement, authored by acquaintance of the employer’s president, which allegedly indicated that claimant did not resign but was fired, but the acquaintance failed to answer subpoena directing him to testify at hearing, thereby denying employer the opportunity to cross-examine him on the statement, and Alvarado v. State of New York, 110 A.D.2d 583, 488 N.Y.S.2d 177 (1*' Dept. 1985), holding that a license suspension hearing against a boxer and his managers was faulty because of a lack of an opportunity “to cross-examine certain witnesses whose reports were introduced into evidence without their testifying, in violation of SAPA Section 306, subd. (3).” (Id. at 585, 488 N.Y.S.2d at 179)

However, here the DOE did not present a case-in-chief and did not controvert the testamentary and documentary evidence submitted by the Parent. (Supra) The credibility of the testamentary and documentary evidence was not rebutted by the agency and the testamentary and documentary evidence is clearly relevant and material to the issues to be determined. I find the testamentary and documentary and evidence submitted by the Parent in this case to be credible and uncontroverted in this case.

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 Parent meets her 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, 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 for the 2018-2019 and 2019-2020 school years and that the Parent may be entitled to the proven relief she has requested.

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 Decision 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 Decision 02-047. In Burr, exclusion from educational services for a substantial period of time was defined as “almost two years.” See SRO Decision 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 DOE concession that is has failed to afford the student a FAPE for two consecutive school years constitutes a gross violation of IDEA.

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 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).

Where sought as relief, 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, Ill, ]2) (See_Schaffer v. Weast, 546 U.S. 49, 58-62 [2005] (emphasis added)

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])

In sum, substance and relevant part, the testamentary and documentary evidence in this case indicates the following: The DOE argues that it is not disputing the denial of FAPE, however, the Parent’s requested relief of (660) hours of compensatory hours ABA is an excessive amount of hours. (T-25) The student is attending a private school that has an ABA program. (T-25-6) The DOE also believes that (2) hours a week BCBA supervision over a (66) weeks is also excessive. (T-26-7)

The BCBA that testified for the Parent via affidavit, stated the following as her direct testimony:

15. | personally conducted an ASA for [STUDENT NAME] on January 22,2020, and February 5, 2020, which concluded in a report dated

February 2020.

16. The assessment consisted of a review of records including but not limited to the [PRIVATE SCHOOL NAME] 2019-2020 Functional Behavioral Assessment, Individualized Education Programs ("IEP"); related service evaluations conducted by the New York City Department of Education dated September 2019 and November 2019, an assistive technology evaluation dated January 2020, and a Neuropsychological Evaluation conducted by Dr. dated September 2019. I also reviewed evaluations and progress reports from 2019, 2018, and 2017, and psychoeducational evaluations from February and March 2019. | utilized various Direct and Indirect data collection techniques including but not limited to Staff Interviews, Parent Interview, observations, and conducted assessment.

18. I conducted two (2) observations of [STUDENT INITIALS] at school.

All observations were over two hours.

19. Based on the date results, it was determined that [STUDENT INITIALS] engaged in distracting and interfering behaviors at a high frequency, including self-stimulatory behaviors, perseverative behaviors, and self-directed behaviors. He also engaged in tantrums which included screaming and refusal to do task.

25. [STUDENT INITIALS] is in the process of becoming independently toilet trained, he still requires occasional verbal prompts to move from one step to another and still wears pull-ups for bowl movements. He does still require assistance with wiping following a bowel movement. He is now able to spontaneously mand for toileting and independently completing hand washing steps. He is unable to independently bathe/shower, brush his teeth, or tie his shoes, and requires physical prompts to complete these self-care tasks.

26. He had difficulty tracking a verbal objects with his eyes only and would move his head as well.

27. He was able to imitate 6 out of 10 fine motor actions with prompting, within the developmental range of an 18-month-old.

33. [STUDENT INITIAL] should have been receiving a full-day ABA educational program, as well as 10-hours per week of a ABA home-based program, two hours per week of BCBA Supervision and one hour of Parent Training and Counseling (PCAT) per week throughout his tenure in preschool and kindergarten.

34. It is my professional recommendation that:

(a) He remains in his current 6:1:1 classroom school setting at [PRIVATE SCHOOL NAME] with related services and targeted social skills instruction, (b) An additional (660) compensatory hours (10 hours per week of ABA x 66 weeks-12-month academic year) should be provided to make up for the last year and a half of lack of appropriate educational day and home-based ABA program. [STUDENT INITIALS] should have been receiving a minimum of (10) hours of home-based ABA per week to address inappropriate, interfering behaviors and increase socially appropriate — skills, selfmanagement skills, appropriate social skills, self-regulation — skills, independent self-care skills, safety skills and academic skills during the last year, in addition to a full day ABA educational program, with parent counseling and training, (c) An additional (132) hours of compensatory BCBA hours (2 hours per week of BCBA Supervision x 66 weeks -12-month academic year) should be included to oversee the ABA provider, address the inappropriate, interfering behaviors and increase socially appropriate skills, (d) An additional (66) parent counseling and training hours by a BCBA should be added (1 hour per week for 12-month academic year) to address the failure to provide this service over the past year and a half.

35. The rate for ABA by is $150 an hour.

36. The rate for BCBA supervision and parent counseling is $200 an hour.

(P-AAA)

On cross examination, the witness testified that the providers she uses are licensed “RBTs” (“Register Behavior Technician”) wno have gone through the 40-hour training and pass a certification exam through the BACB. (T-49-50) The student requires intensive ABA and assistance with decreasing inappropriate behaviors because he engages in a lot of self-stimulatory behaviors, engages in tantrum behaviors and has trouble self-regulating, which they will address, as well as skill acquisition, verbal skills, appropriate play skills, self-management skills, self-regulation skills, leisure skills, navigating the community safely, self-help skills and verbal behavior skills. (T-54)

The rest of the witness’ cross examination did not controvert the witness’s direct testimony. (T-54-78)

There was no substantive testimony developed during the witness’ re-direct examination or her re-cross-examination. (T-78-95)

The uncontroverted record makes clear that the student was denied a FAPE for the 2018-2019 and 2019-2020 school years based upon the DOE’s default, and that the relief sought is appropriate for the student. The two-year denial of FAPE constitutes a “gross violation” of FAPE. There is nothing in the record that supports a finding that the Parent has not cooperated with the DOE. Accordingly, I find that the Parent is entitled to the relief sought as indicated below.

NOW therefore, it is hereby

ORDERED upon the DOE’s DEFAULT and after INQUEST and upon the PARTIES’ AGREEMENT 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 (99) hours of speech and language therapy, (99) hours of occupational therapy, (66) hours of physical therapy, that the DOE will have (60) days form the date of this decision to procure providers to provide those services and if at the end of (60) days, those services cannot be provided by the DOE, then the Parent can go out and get independent providers to provide those services at a rate not exceed the reasonable and fair market rate for those services in the City of New York (T-6); and

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 tuition at the private school for the entirety of his 2019-2020 school year; 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 ABA services, and parent training and counseling in the amount of (660) of ABA compensatory hours, (132) hours of compensatory BCBA hours, (66) parent counseling and training hours by a BCBA, at a rate not to exceed $150 an hour for the Aba services and $200 for the BCBA supervision and parent counseling; and it is further

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 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 CSE shall forthwith reconvene after the completion of the student’s evaluations and consider all of the student's 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: August 26, 2020

New York, New York Edgar De Leon - |.H.O.

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public-School 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)

NAMES AND TITLES OF PERSONS WHO APPEARED

Title For Date DOE Representative DOE 03/11/20 Attorney PARENT 03/11/20

Mother PARENT 03/11/20

BCBA PARENT 03/11/20