NY IHO #185348: New York City... | Special Education Law

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FINDINGS OF FACTS & DECISION - DOE DEFAULT & INQUEST

Case Number: 185348

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

Date of Birth: [“Confidential”]

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 12/17/19

Actual Record Close Date: 11/02/20

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

[CONFIDENTIAL] DOE Representative DOE 12/17/19

[CONFIDENTIAL] Attorney PARENT 12/17/19

[CONFIDENTIAL] Mother PARENT 12/17/19 [CONFIDENTIAL] [TUTORING AGENCY INITIALS] - Director

PARENT 12/17/19

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For #of Pages

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

PARENT’S EXHIBITS

XA. Exhibit | Date Description # of | Individualized Education Program 5.16.17 20 pages

XB. | Mandated Three Year Reevaluation for 1.10.18 1 page

XI. | Occurrence Report 10.23.18 1 page

XJ. | 1% Marking Period Report Card _ 11.26.18 7 pages

K. | Occurrence Report 2.6.19 1 page

YL. L 4.15.19 - Evaluation 7 pages

M. | Individualized Education Program 5.24.19 18 pages

N. | Parent Affidavit 10.8.19 6 pages

Y. O 7.17.19 | Request for Impartial Hearing -10

P. Affidavit of [Confidential] 10/02/19 10 pages

Q. Closing Statement 01/10/20 14 pages

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

On or about July 22, 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 private school and the New York City Department of Education (“DOE”) - District: , regarding the student’s special education program. I was appointed after the recusal of at least one other IHO. After having adjournments granted at the request of and with the consent of the parties, or for good cause, the impartial hearing was held on December 17, 2019. The Parent opted to submit a written closing statement that was received on January 10, 2020. (P-Q) 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 Parents through their attorney(s), [CONFIDENTIAL], and received at the Department of Education Impartial Hearing Office (“DOE-IHO”) on or about July 17,2019. The DPC is carried under New York City (“NYC”) . Therein, the Parent alleges that the DOE has failed to provide the student with a “free and appropriate public education” (“FAPE”) for the 2017-2018, 2018-2019 and 2019-2020 school years. At the impartial hearing, the Parent seeks the following relief: (a) Anorder that the CSE convene a duly constituted IEP team to develop an appropriate IEP that includes the Parent’s attorney(s); and (b) An order that the NYC-DOE shall conduct a Functional Behavioral Assessment; and

(c) | Anorder that the NYC-DOE consider an FM unit for the student; and (d) Anorder that the NYC-DOE fund the following independent evaluations for the student: (1) a Neuropsychological evaluation, (2) an OT evaluation, (3) a SLT evaluation, (4) an audiological evaluation, (5) a PT evaluation and (6) an AT evaluation;

and

(e) An order that the NYC-DOE provide at least (749) hours of compensatory tutoring services at the enhanced rate; and

(f) An order that the NYC-DOE shall provide at least (120) hours of compensatory related services each for OT, PT, counseling, and SLT at the enhanced rate; and

(g) An order that the NYC-DOE shall provide at least (36) hours of compensatory parent training and counseling at the enhanced rate; and

(nh) An award of all attorneys’ fees incurred by the Parent in her case; and

(i) Any other relief that the IHO deems appropriate.

At the hearing, the DOE stated that it did not oppose the Parent's request for evaluations, with the exception of a vision or auditory evaluation. (T-7-8) The parties agreed that the student will receive an independent neuropsychological evaluation, an independent OT evaluation and an independent speech and language evaluation. (T-9-10) The Parent withdrew her request for consideration of an FM unit and for an audiological evaluation, for a PT evaluation, for an AT evaluation, her request for compensatory related services of OT and PT and her request for parent raining and counseling. (T-9)

The Parent maintained her request for compensatory tutoring services, compensatory services regarding counseling and speech and language therapy. (Id.)

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-6-7 & 17) 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 (2) witnesses to testify on her behalf, who testified on direct testimony via affidavit pursuant to 8 NYCRR 200.5{j][3][xii][f]. (P-N & P-P) The DOE crossed examined one of the Parent’s witnesses. (T-20-6 & 34) The Parent also submitted (7) documents in evidence. The DOE did not object to 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]Iii] 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. (See 20 U.S.C. 1415(f)(3)(e) & T-6-7 & 17) “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 documentary evidence submitted by the Parent. (Supra) The credibility of the documentary evidence was not rebutted by the agency and the documentary evidence is clearly relevant and material to the issues to be determined. I find the documentary and testamentary 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 2017-2018, 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 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.” \|n the instant case, the student has been denied a FAPE for three consecutive school years. (Supra) As such, I find that the DOE default and it tacit concession that is has failed to afford the student a FAPE 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 Parent’s first witness is the director of the private tutoring agency. (P-P) She testified as follows: 4. [TUTORING AGENCY INITIALS] is accredited by the Middle States Association of Colleges and Schools ("MSA"). The MSA is a nongovernmental, nonprofit, peer-administered organization. It is a national accrediting agency and is recognized by the U.S. Department of Education as a gatekeeper for eligibility for Title IV funding for postsecondary non-degree granting institutions and distance education.... 20. Prior to conducting [STUDENT INITIALS] evaluation. I reviewed an Individualized Education Program (IEP) dated May 8, 2018. This IEP mandated testing accommodations and | applied the following accommodations: tests read, use of a calculator, and choice of method of response.

21. On the date of the Evaluation. March 20, 2019. the evaluation took place in a small room where it was just myself and [STUDENT INITIALS] present. There were minimal distractions as | bad him facing the wall.

22. During the [TUTORING AGENCY INITIALS] evaluation, | administered the following tests to [STUDENT INITIALS]: Slosson Visual Motor

Performance Test, Wold Sentence Copying Test, Boehm Test of Basic

Concepts, Reading Readiness Evaluation, Rosner’s Test of Auditory Perception, Chall Phonetic Analysis, Slosson Oral Reading Test, Chall Phonetic Analysis, lOTA sight Word Test, Informal Reading Inventory, Math Placement Exam and a Writing Sample.

43. As noted above, I reviewed [STUDENT'S INITIALS] May 2018 IEP, which stated that he was functioning at a 1* grade level in reading and math. Based on the [TUTORING AGENCY INITIALS] evaluation, I do not agree with this assessment. I believe [STUDENT INITIALS] is functioning at a kindergarten reading and kindergarten level in math.

44. Based on my review of the IEP and [STUDENT INITIALS] overall performance on the [TUTORING AGENCY INITIALS] evaluation, I believe

“ "has gaps in his foundational skills which require remediation. — | recommend that [STUDENT INITIALS] requires (749) hours to make up for his failure to make meaningful progress for the years in question. Specifically, based upon the results of [[STUDENT’S INITIALS] evaluations, he requires a total of (629) hours of a verbal program and (120) hours of math hours, to “11” deficit math skills, designed to address [STUDENT INITIALS] unique needs.

47. [TUTORING AGENCY INITIALS] rates are $97 per hour of instruction.

The academic evaluation fee was $245 and there is an enrollment fee of $90 for every student. (P-P)

On cross examination, the witness testified that they provide tutoring for students with all different types of needs. (T-21) Her calculations regarding her recommendations are included in Parent’s exhibit “L.”. (T-23) When asked if all students with a disability will need the same amount of hours to acquire skills, the witness responded that she is not a part of the educational development team and uses the guidelines that she was provided. (T-25) There was no substantive testimony developed during the witness’ redirect examination. (T-26-7) There was no substantive testimony developed during the witness’ re-cross examination. (T-27-31)

The student’s mother also testified via affidavit. (P-N) The DOE did not cross exam the witness.

The DOE has defaulted resulting in finding that the student has been denied a FAPE. There is nothing in the record indicating that the Parent has not cooperated with the DOE and the testamentary and documentary submitted by the Parent is wholly uncontroverted and supports a finding that the student’s private school is appropriate for him.

NOW therefore, it is hereby

ORDERED upon the DOE’s DEFAULT and after INQUEST that the DOE’s default constitutes a denial of FAPE for the student's 2107-2018, 2018-2019 and 2019-2020 school years, which constitutes a “gross violation of FAPE”, and 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 the following IEEs: (1) a Neuropsychological evaluation, (2) an OT evaluation and (3) a SLT evaluation, all of which shall not exceed the reasonable and fair market rate cost for such evaluations in New York City, and for the student’s receipt of (749) hours of compensatory tutoring services at $97 per hour of instruction, the student’s [PRIVATE TUTORING AGENCY INITIALS] academic evaluation fee of $245 and the student’s [PRIVATE TUTORING AGENCY INITIALS] enrollment fee of $90, as well as the student’s receipt of (80) hours of compensatory related services each for counseling, and SLT, which shall 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 also conduct a re-evaluation of the student in all areas of his suspected disabilities, not identified above and 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: November 9, 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)

New York City Department of Education, Impartial Hearing Decision