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FINAL ORDER - DOE DEFAULT & INQUEST - PARENT SUBMISSIONS
Case Number: 185592
NYS Identifier Number N/A
Student’s Name: - To be Edited
and Removed by the NYC-DOE
Date of Birth: [‘Confidential”]
District:
Hearing Requested By: Parent
Dates(s) of Hearing: 07/02/20 & 08/03/20
Actual Record Close Date: 11/23/20
Hearing Officer: Edgar De Leon
NAMES AND TITLES OF PERSONS WHO APPEARED
Name Title For Date
[CONFIDENTIAL] DOE Representative DOE 07/02/20 (T)
[CONFIDENTIAL] DOE Representative DOE 08/03/20 (T)
[CONFIDENTIAL] Attorney PARENT 07/02/20 (T) 08/03/30 (T)
[CONFIDENTIAL] Mother PARENT 07/02/20 (T)
[CONFIDENTIAL] Witness PARENT 08/03/20 (A) [CONFIDENTIAL] Witness PARENT 08/03/20 (A) [CONFIDENTIAL] Witness PARENT 08/03/20 (A) [CONFIDENTIAL] Witness PARENT 08/03/20 (A) [CONFIDENTIAL] Witness PARENT 08/03/20 (A) [CONFIDENTIAL] Witness PARENT 08/03/20 (A) Case No. 182762
DOCUMENTATION ENTERED INTO RECORD
Number/Letter Title Dated For # of Pages
N/A N/A N/A DOE N/A
PARENT’S EXHIBITS
A 10/21/19 Initial Educational & Vision 27
Evaluation
B 1/17/20 Quarterly Evaluation 8
C 4/20/20 Recommended IEP 22
D 8/5/19 Due Process Complaint 7
E 6/17/19 Ten Day Notice 2
F 6/2019 Program Description 9
G 3/2020 Remote Learning Program 11
Description
H 7/8/19 Student's Schedule 2
I 6/10/19 Enrollment Contract 6
J 6/10/19 Proof of Parental Payment 1
K 9/12/19 Affidavit regarding Cost of 5
Program and Payments Made
by Parents
L 6/19/20 Affidavit Education Program 20
Director-[Confidential]
M 6/12/20 Affidavit of Speech/Language 2
Provider-[Confidential]
N 6/13/20 Affidavit of Occupational 2
Therapist-[Confidential]
O 6/23/20 Affidavit of Physical Therapy 3
Supervisor [Confidential]
P 6/22/20 Affidavit of Teacher 4
[Confidential]
Q 6/22/20 Social Worker Affidavit 1
[Confidential]
R 4/25/17 IEP for 2017-2018 21
School Year
S 5/6/20 IEP for 2020-2021 20
School Year
T 6/17/20 Attendance Log 1
U 6/23/20 Affidavit of PT Provider 11
[Confidential]
N/A N/A N/A IHO N/A
On September 24, 2019, I was appointed the Impartial Hearing Officer (“IHO”) to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 USC § 1415(f)(3), Article 89 of the New York State Education Law, Part 200 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973, concerning a dispute between the Parent of a year old student attending a New York State approved non-public 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 July 2, 2020 and August 3, 2020. A list of the persons who appeared 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), [CONFIDENTIAL] on or about August 5, 2019.
The DPC is carried under New York City (“NYC”) . The Parent herein alleges that the student was denied a “free and appropriate public education” (“FAPE”)
for the 2019-2020 school year. At the impartial hearing, the Parent request the following relief:
(a) Direct funding for the student’s full tuition and related services, including a 1:1 health paraprofessional, for the 2019-2020 school year at the private school; and
(b) Appropriate Related Services Authorizations (RSA's) or extra funding for the following services: (1) Physical Therapy: Five sessions per week, sixty minutes per session, 1:1, (2) Occupational Therapy: Three sessions per week, sixty minutes per session, 1:1, (3) Speech/Language: Three sessions per week, sixty minutes per session,
1:1, (4) Speech/Language: Two sessions per week, sixty minutes per session, group, (5)
Special Transportation for the 2019-2020 School Year, to include limited travel time on an air-conditioned wheel chair accessible lift-bus, with a transportation paraprofessional,
(6) Necessary programming of the student's current Assistive Technology
Communication Device;
(c) Immediately conduct by the DOE of appropriate evaluations, to cover all of the criteria set forth above.
FINAL ORDER
The Parents’ DPC having been duly filed pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 USC § 1415(f)(3), Article 89 of the New York State Education Law, Part 200 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973; and
Notice having been duly given to the DOE; and
The matter having come on for a final “impartial hearing” before this IHO on July 2, 2020 and August 3, 2020 at which time the DOE did not call any witnesses and did not submit any documents in evidence, defaulted on its statutory burden of production and persuasion, did not object to the Parent’s testamentary and documentary submissions and declined to cross examine the Parent’s witnesses (T-5-10, 15-22, P-K, P-L, P-M, P-
N, P-O, P-P, P-Q & P-U); and
Whereas the parties agreed to have this decision/order made on the basis of the submission of testamentary evidence pursuant to 8 NYCRR 200.5[j][3][xii][f], (T-23, P-K, P-L, P-M, P-N, P-O, P-P, P-Q & P-U), which the DOE does not oppose and waives its right to challenge via cross examination and the Parent’s unopposed documentary evidence (T-5-10 & 15-22); and
Whereas the Parent appeared with her attorney(s), [CONFIDENTIAL], attorney
[CONFIDENTIAL] assigned, and the DOE by its representatives, [CONFIDENTIAL]; and
Whereas the DOE defaulted on its statutory obligation and an inquest was conducted into the relief sought by the Parent; and a proposed “Final Order” consented to by all the parties based upon the Parent’s uncontroverted testamentary and documentary submissions, having been presented to this IHO on the record as being in the best interest of both parties (Id.); and
Whereas under the IDEA, the burden of persuasion in an administrative hearing is placed upon the party seeking relief. (See Schaffer v. Weast, 546 U.S. at 59-62) On August 15, 2007, the New York State Legislature amended the Education Law to place the burden of proof upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement would continue to have the burden of proof regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended statute took effect for impartial hearings commenced on or after October 14, 2007. (SRO No. 08-016); and
Whereas the DOE having failed to submit any testamentary or documentary evidence to meet it burden under the law (Id.); and
Whereas the party who defaults in concedes only liability and not the amount of “damages.” (See CPLR § 3215, First Nat. Bank & Trust Co. v. Classic Collateral Corp., 44 A.D.2d 868, 355 N.Y.S.2d 504 (1974), James v. Powell, 19 N.Y.2d 249, 279 N.Y.S.2d 10, 225 N.E.2d 741 (1967), McClelland v. Climax Hosiery Mills, 252 N.Y. 347, 169 N.E.
605 (1930); and
Whereas the DOE’s default constitutes an admission of liability, but not of damages, which remains the Parent’s burden to prove. (See Fed. R. Civ. P. 55 & City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114 at 128 [2d Cir. 2011]); and
Whereas to demonstrate the appropriateness of the relief sought, the Parent need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of the student, supported by such services as are necessary to permit the student to benefit from instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65); and
Whereas in the absence of evidence demonstrating that the Parent has failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of the relief sought by the Parent, including but not limited to tuition reimbursement. (SRO No. 04-049); and
Whereas there being nothing in the record consisting solely of the Parent’s testamentary and documentary submissions that sustains a finding that the Parent has not cooperated with the CSE; and
Whereas the Parent has submitted the testimony of (8) witnesses on direct examination via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f], (P-K, P-L, P-M, P-N, P-
O, P-P, P-Q & P-U) and the DOE having declined its right to contest that testimony and/or cross examine the Parent’s witnesses (T-5-10 & 15-22); and
Whereas the Parent’s submissions are completely and unequivocally uncontroverted and need not be repeated herein as they are annexed hereto for the benefit of the reader; and
Whereas the DOE has failed to meet its burden under the law and the Parent’s submission clearly reflects that the relief sought meets the unique needs of the student, supported by such services as are necessary that permits the student to benefit from that relief. (Gagliardo & Frank G., supra); and
Whereas there is no evidence that the Parent has not cooperated with the DOE;
and
Whereas this IHO having determined that the parties’ consent to the manner of determining this “Final Order” was made knowingly, intelligently and voluntarily; and
Whereas the parties’ oral arguments, discussions, concessions testamentary and documentary evidence and this order having been recorded and annexed hereto; and
Whereas the uncontroverted testamentary and documentary evidence clearly establishes the appropriateness of the relief sought by the Parent; and
Whereas the IDEA specifically includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services. (See 20 U.S.C. § 1401[26], see also 34 CFR 300.34[a], [c][16]); and
Whereas in addition, State law defines special education as “specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability,” and requires school districts to provide disabled students with “suitable transportation to and from special classes or programs.” (See Educ. Law §§ 4401[1], 4402[4][a], see also Educ. Law § 4401[2] and 8 NYCRR 200.1[ww]); and
Whereas specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education. (SRO No. 03-053); and
Whereas if a CSE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the district must ensure that the student receives the necessary transportation at public expense. (See Transportation, 71 Fed.
Reg. 46576 [Aug. 14, 2006]; see 8 NYCRR 200.1[ww]); and
Whereas the State Education Department has indicated that a CSE should consider a student's mobility, behavior, communication, physical, and health needs when determining whether or not a student requires transportation as a related service, and that an IEP “must include specific transportation recommendations to address each of the student's needs, as appropriate.” (See “Special Transportation for Students with Disabilities,” VESID Mem. [Mar. 2005]); and
Whereas other relevant considerations may include the student's age, ability to follow directions, ability to function without special transportation, the distance to be traveled, the nature of the area, and the availability of private or public assistance. (See Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1375 [11th Cir. 1997] and Malehorn v.
Hill City Sch. Dist., 987 F. Supp. 772, 775 [D.S.D. 1997]); and
Whereas when reviewing the transportation provisions made for a student by a district, the relevant question is whether the transportation arrangements are appropriate to meet the student's needs. (SRO No. 03-054); and
Whereas in this case, the student’s IEP dated April 25, 2017, 2018 does recommend that the student needs special transportation accommodations/services (P-
R); and
Whereas the student’s IEP dated April 28, 2020, specifically recommends that the student receive special transportation services a follows: Transportation from the closest safe curb location to school, Adult Supervision - 1:1 Paraprofessional, Vehicle and/or Equipment Needs - Lift Bus, Vehicle and/or Equipment Needs - Air Conditioning, Other Accommodations - Limited Travel Time (P-S); and
Whereas this does not exclude or preclude a determination regarding the student's entitlement to transportation as available to regular education students or suitable transportation as available to students attending nonpublic schools “for the purpose of receiving services or programs similar to special education programs recommended” by the CSE. (See Educ. Law 3635; 4402[4][[d]); and
Whereas if the DOE has not done so already, must provide transportation of the student to his private school in accordance with the above; and
Whereas if the Parent request an evaluation or disagrees with an evaluation obtained by the school district, the Parent has a right to obtain an IEE at public expense.
(See Regulations of the Commissioner of Education § 200.5(g). (“NYCRR § 200.5”); and
Whereas if the Parent request an IEE at public expense, the school district must, without unnecessary delay, either ensure an independent evaluation is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. (See 8 NYCRR § 200.5(g)(iv); and
Whereas, the statute as written contemplates that the school district will be given notice of the Parent’s request for an evaluation or disagreement with the school district’s evaluation so that it may invoke its right to conduct an evaluation, pay for the Parent’s IEE or file a DPC to defend it position to the contrary; and
Whereas additionally, 34 C.F.R. 300.502(d) and 8 NYCRR 200.5(i)(3)(vi) provide that if a hearing officer requests an IEE as part of a hearing, the cost of the evaluation must be at public expense; and
Whereas the Parent’s request for relief in the DPC regarding the request for evaluation is stated as follows:
Finally, it is respectfully demanded that the New York City Department of Education immediately conduct appropriate evaluations, to cover all of the criteria set forth above, to be made available to the parent as soon as practicable for the preparation of a new, up to date IEP, and the provision of a new Assistive Technology Device, or in the alternative, provide funding for an Independent Educational Evaluation.
; and
Whereas, accordingly, I find that the Parent is not yet entitled to independent evaluations; and I will exercise my discretion under 34 C.F.R. 300.502(d) and 8 NYCRR 200.5(i)(3)(vi) and order the DOE to conduct its own evaluations regarding any areas of suspected disabilities that the student may have; and, which the Parent may subsequently agree or disagree with, and if disagreed with, the Parent may follow the guidelines of the statute cited above to request independent evaluations; and
Whereas the testimony and the documentary evidence submitted by the Parent is found credible and completely uncontroverted.
Now, therefore, it is hereby
ORDERED upon the DOE’s DEFAULT and after INQUEST that upon the DOE’s receipt of reasonably satisfactory proof of said services having been rendered, the DOE shall either reimburse the Parent and/or pay the cost of the student’s tuition, costs, and expenses of his special education program, services and transportation to and from the private school for the entirety of the student’s 2019-2020 school year; and it is further
ORDERED upon the DOE’s DEFAULT and after INQUEST that the DOE shall conduct evaluations of the student in all areas of her suspected disabilities, including, but not limited to a neuropsychological evaluation, a physical therapy evaluation, an occupational therapy evaluation, and speech and language evaluation, an assistive technology evaluation, and any other evaluation needed and not conducted within the last two years, for the 2021-2022 school year; and it is further
ORDERED upon the DOE’s DEFAULT and after INQUEST that the CSE shall forthwith reconvene to produce a new IEP for the student that considers all of the student’s available evaluations and any related information and produce a new IEP for the student’s 2021-2022 school year; and it is further
ORDERED upon the DOE’s DEFAULT and after INQUEST that any of the other relief sought by the Parent not addressed by this “Final Order” is found to be either resolved by the parties, withdrawn by the Parent, outside the scope of the IHO’s authority or unsupported by the record.
DATED: November 30, 2020 _______________________
New York, New York Edgar De Leon - IHO
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the PublicSchool District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov. (Rev. 07/09/20)