New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION - DOE DEFAULT & INQUEST

Case Number: 185858

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

Date of Birth:

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 01/21/20

Actual Record Close Date: 07/13/20

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title Eor Date DOE Representative DOE 01/21/20 Attorney PARENT 01/21/20

Mother PARENT 01/21/20 Assistant Head of School PARENT 01/21/20

On August 23, 2019, I was appointed the Impartial Hearing Officer (“IHO”) to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act ( “IDEA”), 20 USC § 1415(f)(3), Article 89 of the New York State Education Law, Part 200 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973, concerning a dispute between the Parent of a( ) year old student attending a private school and the New York City - Department of Education (“DOE”) - 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 January 21, 2020. A list of the persons appearing at the hearing and the documents received in evidence in annexed hereto.

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 August 21, 2019. The DPC is carried under New York City (“NYC”) Case No. 185858. The Parent in this case alleges that the student has been denied a “free and appropriate public education” (“FAPE”) for the 2019-2020 school year. At the impartial hearing, the Parent seeks the following relief: (a) | Funding for/direct payment of/reimbursement of tuition for the private school; and (b) Funding for/direct payment of/reimbursement of home-based ABA services; and (c) Funding for/direct payment of/reimbursement of a __ private neuropsychological examination; and (d) | Funding for/direct payment of/reimbursement of costs and fees; and (e) Provision of/reimbursement for appropriate related services and transportation.

At the hearing, the Parent stated that “pendency” was no longer an issue. (T-5)

THE DOE’S CASE

The DOE did not call any witnesses to testify on its behalf, did not submit any documents in evidence, and did not object to the Parent’s exhibits with the exception of one. (1-6-8, 11-2 & 21) The testamentary and documentary evidence for and against the DOE’s case in default is incorporated in the decision below.

THE PARENT’S CASE

The Parents called (2) witnesses to testify on her behalf, who testified on direct examination via affidavit pursuant to 8 NYCRR 200.5/j][3][xii][f]. (P-D & P-N) The DOE cross examined only one of the witnesses. (T-25-34) The Parent also submitted (10) documents in evidence. The DOE did not object to any of the Parent's documents being received in evidence with the exception of one document. (T-11-2) The testamentary and documentary evidence for and against the Parent’s case is incorporated in the decision below.

FINDINGS OF FACTS & DECISION - DOE 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, failed to submit any documents in evidence, failed to file and serve an answer but did provide a “Prior Written Notice” in this case (received as P-D & P-E), and did not object to the Parent’s documentary evidence. (See 20 U.S.C. 1415(f)(3)(e) & T-6-8, 11-2 & 21) “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 and that the Parent may be entitled to the proven relief she has requested. The DOE has defaulted on its statutory obligation and I find that the student was denied a FAPE for the 2019-2020 school year.

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])

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 no request for compensatory educational services in this case and in either case, 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 as 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)

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 2019-2020 school year.

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 does not meet 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)

In sum, substance and relevant part, the evidence in this case is uncontroverted and in favor of the Parent. The Assistant Head of the private school testified as follows:

8. [PRIVATE SCHOOL NAME] School is an independent school for students with a broad range of developmental disabilities. The students have a variety of DOE disability classifications and typically have languagebased learning disabilities, academic deficits, and/or deficits in adaptive daily living skills. There are 117 students in the school.

9. We provide small classes with low student-to-teacher ratios. We offer our students Speech Language Therapy, Occupational Therapy, Physical Therapy, Counseling, Adaptive Services, Art Therapy, Music Therapy, Social Skills instruction, Self-Help/Activities of Daily Living — skills instruction, Yoga, Adaptive Physical Education, Community Exploration, and a Mind Body Move class designed by the Chair of our Physical Therapy department. We have a full time Registered Nurse on staff to meet the health and medical needs of our students. All of our teachers and providers have access to weekly team meetings as well as professional development opportunities throughout the year. We offer monthly parent workshops on a range of topics related to meeting the needs of children with special needs.

10. We have a school psychologist on staff for every two classes in our lower school, including [STUDENT’S INITIALS]'s class. The school psychologist provides individual and group counseling and develops

Behavior Intervention Plans (BIPs) for students who require them.

11. We also offer a class called Art therapy. This is taught by a counselor who is trained in art therapy.

12. Occupational therapy is often provided in a sensory gym that has equipment including a climbing/rock wall, fitness equipment, equipment for providing deep pressure and sensory input (Weighted blankets), and other toys and games in the room for developing students’ fine motor and visual coordination.

13. Speech and language therapy is provided individually, in small groups (two to four students) and by pushing into the classrooms to provide language support while working on lessons.

14. Head teachers at [PRIVATE SCHOOL NAME] School typically hold certifications in special education and either have a master's degree or are currently working towards a master's degree.

15. Our assistant teachers are required to have at least a bachelor's degree to work in the classrooms.

16. Our paraprofessionals are required to have at least a high school diploma. Paraprofessionals also receive further professional development and training at [PRIVATE SCHOOL NAME] School to help them develop their skills in the classroom.

17. We also provide all staff members with professional development at [PRIVATE SCHOOL NAME] School. Three times per year, we have a day long professional development with the entire school. Once a month, we have team meetings/professional development sessions with staff.

23. I am familiar with [STUDENT’S INITIALS] because she is a student in our grade K-1 class.

24. She is in Kindergarten this year and for all academic classes she is in a class of 11 other students, with two teachers and_ three paraprofessionals (12:2:3). The students in her class are ages 5-7 and all are Classified under the IDEA. [STUDENT’S INITIALS] receives intensive related services. The classroom is assigned a full-tinte speech and language pathologist and a full-time occupational therapist, who work with the students individually and in groups throughout the day, every day. The therapists participate in daily instruction and learning activities on a daily basis within the classroom, in addition to providing the students their individual and small group related services. Finally, the team includes a physical therapist and a counselor who divide their time working with [STUDENT’S INITIALS]'s class and one other class.

25. [STUDENT’S INITIALS] was accepted into our program through our admissions process. This process typically includes review of educational. psychological evaluations as well as progress reports and information from the prior school; interviews with the student, parents, and staff at the prior school; an admissions visit to observe the student in the prior classroom; a visit by the student to our school for our staff to observe the student with our students; and an intensive team discussion about the student amongst the team who would be working with the student.

26. [PRIVATE SCHOOL NAME] School's lower school progran1 has a traditional elementary school homeroom model. That means_ that [STUDENT’S INITIALS] participates in academic instruction in a single classroom, while transitioning to various specials classes and therapeutic sessions throughout her daily schedule.

27. [STUDENT'S INITIALS]' s daily classroom schedule for the 2019-2020 school year includes gross motor activities, morning meeting, center-based activities, reading, writing, math, and social studies instruction. The students also participate in specials at least once daily, which include music, science, art therapy, technology, and gym. The 2019-2010 classroom schedule included in the parent's exhibits is an accurate representation of the schedule.

33. [STUDENT'S INITIALS] participates in the Mind Body Move class referenced above, one time per week, which is an integrated class taught by a physical therapist and occupational therapist together. With a class of approximately four students, they address gross motor, visual motor, and problem-solving issues and reinforce some of the skills the students are addressing in their individual therapies.

34. [STUDENT’S INITIALS] also participates in an adaptive physical education program, called , taught by an outside instructor trained in adaptive physical education. A [PRIVATE SCHOOL NAME] School physical therapist also attends the class to help support the students and their gross motor needs.

35. [STUDENT’S INITIALS] receives speech and language therapy four times a week, twice individually and twice in a small group (2x30xl, 2x30x2). Speech and language therapy is a combination of push-in and pull-out services. The speech pathologist provides [STUDENT’S INITIALS] with feeding therapy. The speech pathologist has introduced an AAC device (an iPad with Proloquo2Go) to [STUDENT’S INITIALS]'s program, which has increased her expressive speech and overall communication. The speech pathologist has worked with [STUDENT’S INITIALS]'s family and home provider to train them in using the AAC device. In addition to these services, [STUDENT’S INITIALS] participates in a Social Skills class, led by the speech pathologist and school psychologist, as well as a Fun with Food class, led by the speech pathologist and the occupational therapist.

36. [STUDENT’S INITIALS] receives three sessions of occupational therapy per week: one individual (1x30 1 :1) occurring in the sensory gym; one individual session (1 x40 1:1) at the playground, and one a sniall group (Ix30 4:1) as part of Centers, in addition to the work in the classes described earlier.

37. [STUDENT’S INITIALS] participates in one individual session of Physical Therapy per week in the sensory Gym (1 x30, 1:1), in addition to the work in the classes described earlier.

38. [STUDENT’S INITIALS] receives weekly individual counseling (Ix30xl) and small group counseling in a dyad (Ix30x2). Additionally, whole class collaborative services include a Social Skills class (Ix30x12) co-led with the speech language pathologist and a My Body and My Emotions class (1x30x12) co-Jed with the occupational therapist. Integrative services include push-in support during snack time, trips to the playground, community walks, recess, and class field trips.

39. [PRIVATE SCHOOL NAME] School's program provides [STUDENT’S INITIALS] the individualized instruction she requires, including a small student to teacher ratio in a language-rich, positive classroom environment, in addition to counseling, speech, physical, and occupational therapy sessions tailored to meet her needs. [STUDENT'S INITIALS] has made progress during the 2019-2020 school year; she has increased her spontaneous language and increased her expressive language. She uses her voice more frequently, her utterances are longer, and she has begun to use an AAC device to communicate expressively. She engages in more cooperative play and cooperates with peers taking turns. She has increased her use of toys for pretend play. The classroom teacher reports that [STUDENT’S INITIALS] is beginning to read certain sight words. The program provides [STUDENT’S INITIALS] with significant support in academics, language, and other related services and increases her communication, social, and life skills and is appropriate to meet her needs. (P-D)

On cross examination, the witness testified that the private school is not a New York State approved school. (T-26) To his knowledge, the student’s head teacher, is a certified teacher in New York. (T-28) All of the related service providers who work with the student are licensed professional. (T-28-9) The teaching staff and the paraprofessionals who work with the students, under the direction of the school psychologist, may work with individual students to support a give and take interaction regarding behaviors or certain routines throughout the day that are drawn from ABA in their approach. (T-29)

The witness testified that there are six students in the student’s class diagnosed with autism spectrum disorder and also a range of disabilities within the rest of the students, including one student with speech and language impairment, one student with multiple disabilities, a student with other health impairment, a student with intellectual disability, and two students who, because they are in kindergarten, are still listed under pre-K student with disabilities. (T-30) Based on his conversations, it is his understanding is that student has made a lot of progress in her communication and school readiness skills and has demonstrated significant growth since the beginning of the year in expressive language skills, in using assistive technology to communicate, in her participation in classroom routines in both academic and non-academic matters. (T32)

On re-direct examination, the witness testified that in his opinion, the student does not need exposure to strict ABA or Discreet trial analysis within the classroom at the private school to benefit from the program. (T-35) The student is difficult to assess through standardized formalized assessments. (T-36) There was no re-cross examination of the witness. (T-37)

The second and final witness for the Parent is the student’s mother. She testified that the student likes going to the bus and going to the private school. (T-42) The student now loves feeding. (Id.) The student is using an assistive technology device and is starting to write. (T-45) The student is interacting more. (T-47) Her husband works at and gets a lot of “stock money”, but not a lot of income. (T-51) There was no re-cross examination of the witness. (T-52) On continued re-re-direct, the witness testified that she paid $3,800 for a private evaluation that was 90% covered by insurance. (Id.) There was no re-re-cross of the witness. (T-53)

In sum, substance and relevant part, the evidence that was received in this case is uncontroverted and in favor of the Parent. The student’s IEP dated April 5, 2019 recognizes that the student needs special transportation accommodations/services. (PB)

The student’s un-controverted Psychoeducational Evaluation dated June of 2019 recommends that the student's classification be made “Autism”, but does not recommend “home-based ABA service” and the private school Assistant Head did not recommend home-based Aba services and testified that the student does not need exposure to strict ABA or Discreet trial analysis within the classroom at the private school to benefit from the program. (T-35 & P-C)

There is extensive evidence in the record as to the programs and services that the private school offers which make it an appropriate placement for the student. (P-D

& P-E) Accordingly, I find that the DOE’s default in this case amounts to a denial of FAPE for the 2019-2020 school year and that the record above sufficiently establishes that the award of tuition and related services reimbursement and/or funding and special education transportation is appropriate.

The Parent testified that she paid $3,800 for a private evaluation that was 90% covered by insurance. (T-52) The applicable federal regulation for an award for the cost of an “Independent Educational Evaluation” (“IEE”) provides in material part as follows: (b) Parent right to evaluation at public expense (1) A parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency.

(2) If a parent requests an independent educational evaluation at public expense, the public agency must, without unnecessary delay, either (i) Initiate a hearing under Sec. 300.507 to show that its evaluation is appropriate; or (ii) Ensure that an independent educational evaluation is provided at public expense, unless the agency demonstrates in a hearing under Sec. 300.507 that the evaluation obtained by the parent did not meet agency criteria.

(3) — If the public agency initiates a hearing and the final decision is that the agency’s evaluation is appropriate, the parent still has the right to an independent education evaluation, but not at public expense.

(4) If a parent requests an independent educational evaluation, the public agency may ask for the parent’s reason why he or she objects to the public evaluation.

However, the explanation by the parent may not be required and the public agency may not unreasonably delay either providing the independent educational evaluation at public expense or initiating a due process hearing to defend the public evaluation. (See 34 C.F.R. § 300.502[b] & 8 NYCRR 200.5/g])

Additionally, 34 C.F.R. 300.502(d) and 8 NYCRR 200.5(i)(3)(vi) provide that if a hearing officer requests an independent educational evaluation as part of a hearing, the cost of the evaluation must be at public expense.

Here, the is no evidence in the record that the Parent specifically requested that the student be evaluated and the Doe refused to do so, or that she disagreed with any DOE evaluations. (See 8 NYCRR § 200.5(g)(iv), P-R & P-Z) To argue that the Parent's “Demand for Due Process” seeking IEE relief, is itself “notice” to the DOE allowing the agency time to either conduct the “requested” evaluations, offer IEEs or defend its position by filing a DPC, runs completely against the spirit of the regulation and is fundamentally unfair. 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 requirea"]). 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], affd, 471 U.S. 359 [1985]) I do not find that that record supports the Parent’s request for the cost of an IEE.

There is nothing in the record that supports a finding the Parent has not cooperated with the DOE. For all of the reasons stated herein, 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 that upon its receipt of reasonably satisfactory proof of services having been rendered, the DOE shall either reimburse the Parent and/or direct pay the cost of the student’s tuition, related services and special education transportation services at the private school for the entirety of her

2019-2020 school year thereat; 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 her 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: July 22, 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 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)

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For #of Pages

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

A IHR 08/21/19 PARENT 06

B IEP 04/05/19 PARENT 13

C Psychoeducational Evaluation 06/2019 PARENT 20

D Affidavit of 01/13/20 PARENT 11

E Progress Report 11/2019 PARENT 17

F-L Withdrawn / Not Received N/A PARENT N/A M Program Description 2019-2020 PARENT 04

N Affidavit of Tuition 01/13/20 PARENT 02

O Enrollment Contract 08/08/19 PARENT 02

P Class Schedule 2019-2020 PARENT 01

Q Attendance Record 01/10/20 PARENT 01

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