New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION - DOE DEFAULT & INQUEST

Case Number: 186306

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: 06/09/20

Actual Record Close Date: 11/30/20

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

[CONFIDENTIAL] DOE Representative DOE 06/09/20 (T)

[CONFIDENTIAL] Advocate PARENT 06/09/20 (T)

[CONFIDENTIAL] Mother PARENT 06/09/20 (T)

[CONFIDENTIAL] Spec. Ed. Teacher PARENT 06/09/20 (T)

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For # of Pages

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

PARENT’S EXHIBITS

ITEM DATE DESCRIPTION Number

NUMBER of pages A 08/30/19 Impartial Hearing Request 5 B 08/07/19 Retainer Agreement 2 c Program Description 4 D 09/05/18 Individualized Education Services Program 9 E 05/25/20 Affidavit of Services 1 F 19/20 Parent Outreach 1 G Provider's Certificate 3

***Parent’s exhibit “E” was not formally received in evidence.***

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

On September 4, 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 an

(11) 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 June 9, 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 through his attorney(s), [CONFIDENTIAL] and received at the Department of Education Impartial Hearing Office (“DOE-IHO”) on or about August 30, 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 2019-2020 school year. At the impartial hearing, the Parent seeks the following relief:

(a) An order that the DOE pay the student’s SETSS provider at the rate of $150 per hour of service; and

(b) An order that the DOE provide the Parent with a related service authorization (RSA) to ensure that the student receives her mandated services; and

(c) An extended school year or twelve-month services; and

(d) Any further relief the IHO finds just and appropriate.

At the hearing, the Parent agreed the DOE convened to create an IESP for the student on September 5, 2018, that became a 10-month document and recommended

(3) periods of SETSS services per week, as well as speech and language services and was agreed to by the Parent. (T-9) At the impartial hearing, the Parent ask that the special education teacher support services or SETSS services for (3) hours per week, be paid at the enhanced rate of $150 per hour. (T-10)

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-4-7 & 12) 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 (1) witness to testify on his behalf, who did not testify on direct testimony via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f]. The DOE only briefly crossed examined the student’s father. (T-24-6) The Parent also submitted (6)

documents in evidence. The DOE did not object to the Parent’s documents being received in evidence. (T-7) 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 [2nd Cir. 2005])

The first step is to determine whether the DOE offered to provide the student a FAPE. (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2nd Cir. 2000]) A FAPE is offered to a student when (a) the DOE complies with procedural requirements set forth in IDEA and

(b) the IEP developed by the CSE through the procedures set forth in IDEA, is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. V. Rowley, 458 U.S. 176, 206-7 [1982]) The student’s recommended program must also be provided in the least restrictive environment (“LRE”). (20 U.S.C. § 1412(a)(5)(A), 34 C.F.R. § 300.550(b), 8 NYCRR §200.6(a)[1])

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

It is also not required that the private school employ certified special education teachers or have its own IEP for the student. (SRO No. 94-20)

Finally, the IHO must consider whether equitable considerations favor the Parents' request for tuition reimbursement. State Review Officer (“SRO”) Decision 06-004 holds:

Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic

Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied tuition reimbursement u pon 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. (See 20 U.S.C. 1415(f)(3)(e) & T-4-7 & 12 ) “Prior Written Notice” means written statements developed in accordance with Section 200.5(a) of the Regulations of the Commissioner of Education and provided to the parents of a student with a disability a reasonable time before the school district proposes to or refuses to initiate or change the identification, evaluation, or educational placement of the student or the provision of a free appropriate public education to the student.

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

The DOE 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 (1st Dept. 1985), holding that a license suspension hearing against a boxer and his managers was faulty because of a lack of an opportunity “to cross-examine certain witnesses whose reports were introduced into evidence without their testifying, in violation of SAPA Section 306, subd. (3).” (Id. at 585, 488 N.Y.S.2d at 179)

However, here the DOE did not present a case-in-chief and did not controvert the testamentary or 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 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 his burden under Schaffer

v. Weast, the Parent is entitled to the proven relief he 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 2019- 2020 school year and that the Parent may be entitled to the proven relief he 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.” In 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 tacit concession that is has failed to afford the student a FAPE in this case does not constitute 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 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 m ore than we must to resolve the case at hand: The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. In this case, that party is Brian, as represented by his parents. But the rule applies with equal effect to school districts: If they seek to challenge an IEP, they will in turn bear the burden of persuasion before an ALJ.

The judgment of the United States Court of Appeals for the Fourth Circuit is, therefore affirmed.” (Supra, III, ¶2) (See Schaffer v. Weast, 546 U.S. 49, 58-

62 [2005] (emphasis added)

The party who defaults in concedes only liability and not the am ount 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 private school’s CFO testified that the total contracted annual tuition rate, including any award of scholarship, financial aid, or a reduced tuition amount in this case is $67,700. (P-N) The DOE did not cross examine this affiant.

The licensed clinical psychologist that testified for the Parent stated in his affidavit the follow:

The SETSS provider that testified for the Parent stated that the private agency she works for provides materials, supervision, professional development and billing assistance. (T-18-9) “Under” the private agency, she is a special education teacher. (T-

19) However, the witness also testified that she is an “educational provider” that provides “special education services” three times per week to the student. (Id.)

The witness testified that she definitely feels like her written ability has improved and has brought to her an end-fourth grade level, with her reading beginning the 5th grade level, decoding, and comprehension, although the student is going into the 6th grade. (T-

23) She got paid at a rate of $80 per hour, and then the agency has overhead expenses of billing, office staff, professional development and materials. (T-23) There was no substantive testimony developed during the witness ’ cross examination. (T-24-6)

SETSS are not defined in State or federal laws or regulations and are not identified on the State continuum of special education services. A reference to the service as "direct" is in keeping with the language used in State regulations for consultant teacher services (See 8 NYCRR 200.6[d] and SRO No. 16-044)

State regulations distinguish between "direct consultant teacher services," which consist of "specially designed individualized or group instruction provided by a certified special education teacher . . .to a student with a disability," from "indirect consultant teacher services," which consist of "consultation provided by a certified special education teacher . . .to regular education teachers" (8 NYCRR 200.1[m] [emphasis added]; see 8 NYCRR 200.6[d]).

In this case, there is no evidence in the hearing record to establish that the Parent has incurred any financial obligation to pay the difference between the enhanced rate and the DOE rate. There was no testimony from the Parent regarding an obligation to pay the enhanced rate, and no written contract or agreement received in evidence regarding the same. Additionally, there is nothing in the record indicating that the private agency billed the Parent for those services or made any effort to collect payment for services rendered.

Therefore, even if the Parent prevailed on the merits of her claim, it would be unclear at this juncture whether or not any relief would be warranted absent evidence that the provider was owed additional compensation based on an agreement with the Parent or the DOE. In any event, it is unnecessary to speculate on this state of affairs since the evidence in the hearing record does not support a finding that the district failed to make available to the student special education programs and services on an equitable basis.

(See Educ. Law § 3602-c[2][b][1])

Absent the DOE’s concession that the student was entitled to receive the SETSS services during the 2019-2020 school year (supra), the record does not evidence that the DOE failed to make available to the student special education programs and services on an equitable basis. (See Educ. Law § 3602-c[2][b][1]) First there is no evidence that the Parent complied with the DOE’s SETSS Authorization Form instructions that state in relevant part: “If you need assistance locating a provider, or if you have any questions, please contact the DOE person listed in Section 1 of this form.” Additionally, the alleged DOE provider call list submitted by the Parent indicates that her efforts to secure a DOE SETSS provider amounted to only (5) calls allegedly made on Wednesday, August 21, 2019, Thursday, August 22, 2019, Sunday, August 25, 2019, Monday, August 26, 2019 and Tuesday, August 27, 2019. (P-F)

Equitable considerations are relevant to fashioning relief under the IDEA. (See Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194, M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000], and Carter, 510 U.S. at 16 [noting that "[c]ourts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]) The IDEA also provides that reimbursement may be reduced or denied when Parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the Parents. (See 20 U.S.C. §

1412[a][10][C][iii], 34 CFR 300.148[d], E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school] and C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the

IDEA"]).

The record makes clear that the student is entitled to the SETSS services (3) times per week for the 2019- 2020 school year, according to her IESP dated September 5, 2018. (P-D) The DOE does not dispute this, but objects to the Parent’s request for an enhanced rate for those services. (T-28-9)

As noted above, the IDEA also provides that reimbursement may be reduced or denied when Parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the Parents. (See 20 U.S.C.

§ 1412[a][10][C][iii], 34 CFR 300.148[d], E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school] and C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]) (emphasis added)

For the reason stated above, I find that the Parent is not entitled to an enhanced rate for SETSS services.

NOW therefore, it is hereby

ORDERED upon the DOE’s DEFAULT, Its CONCESSION 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 for the cost of the student’s receipt of SETSS services (3) times per week, at the established DOE rate for those services, for the entirety of the student’s 2019-2020 school year, and that the DOE shall issue “Related Service Authorizations” (“RSAs”) to ensure that the student receives her mandated services, if those services have not yet already been provided; and it is further

ORDERED upon the DOE’s DEFAULT, It’s CONCESSION and after INQUEST that the DOE shall also conduct a re-evaluation of the student in all areas of her suspected disabilities not evaluated within the last two years, for the 2021-2022 school year; and it is further

ORDERED upon the DOE’s DEFAULT, It’s CONCESSION 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 2021-2022 school year; and it is further

ORDERED upon the DOE’s DEFAULT, It’s CONCESSION 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: December 7, 2020 _____________________________

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

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)