New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION - DOE DEFAULT & INQUEST

Case Number: 186335

NYS Identifier Number N/A

Student’s Name: -

Date of Birth: [“Confidential”]

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 07/20/20

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 07/20/20 (T)

[CONFIDENTIAL] Attorney PARENT 07/20/20 (T)

[CONFIDENTIAL] Father PARENT 07/20/20 (T)

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For # of Pages

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

PARENT’S EXHIBITS

Exhibit Description Date Pages

A Due Process Complaint 08/30/2019 9

B Ten-Day Notice 08/16/2019 6

C Notice to Admit 06/19/2020 4

D Psychoeducational Evaluation by Dr. [Confidential] 01/31/2019 19

E Psychoeducational Evaluation Update by Dr. 06/12/2019 12

[Confidential

F [Confidential] Enrollment Contract 05/08/2019 3 G [Confidential] School Program Description Undated 1 H Student Class Schedule for 2019-2020 school year 09/16/2019 1 I Student Class Schedule print-out for Semester 1 and 2 Undated 1

J [Confidential] Update Report 10/16/2019 2

K [Confidential] Report Card for Semester 1 Undated 23

L [Confidential] Report Card for Semester 2 Undated 23

M Student Attendance Report 6/17/2020 1

N [Confidential] Tuition Affidavit 09/20/2019 1 O Letter from parent to DOE requesting IEP 06/13/2019 35

P Letter to CSE regarding medical records with fax 07/05/2019 3

confirmation

Q [Confidential] School Distance Learning Overview as of 04/23/2020 4

04/23/2020

R Curriculum Vitae of Dr. [Confidential] Undated 8

S Written Direct Statement of Dr. [Confidential], Ph.D. 07/10/2020 3

T [Confidential] Teacher Report May 2020 6

U [Confidential] Counseling Report Spring 2020 1 V [Confidential] Speech-Language Progress Report 2019-2020 3

School Year

W Affidavit of [Confidential], [Confidential] School 07/10/2020 9

X Affidavit of [Confidential], Parent of [Confidential] 07/13/2020 5

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

On October 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 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 July 20, 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 2017-2018, 2018-2019 and 2019-2020 school years. At the impartial hearing, the Parent seeks the following relief:

(a) Tuition reimbursement and or funding for the student’s 2019-2020 school year at the private school, as well as for cost and fees, counseling services and private evaluations; and

(b) Round trip air-conditioned transportation in a mini-bus and limited travel time; and

(c) Compensatory education and services; and

(d) Attorney fees; and

(e) Any and all other relief that may be appropriate

The Parent in this case served the DOE with a “Notice to Admit” in dated June 19, 2020, over (30) days from the hearing began. (T-15 & P-C) The DOE did not respond to the Parent’s “Notice to Admit.”

Pursuant to Rule 36 of the Fed. Rules. Civ. Procedure, a matter is admitted unless, within (30) days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney. A shorter or longer time for responding may be stipulated to under Rule 29 or be ordered by the court.

In Michael Kors, LLC v. Su Yan Ye & DOES 1-10, 1:18-CV-2684 (KHP), (SDNY,

04/08/19), the Court set forth the following standard regarding the failure of a party to answer a “Request to Admit”:

Rule 36 permits a party to serve on any other party “a written request to admit, for purposes of the pending action only, the truth of any matters within the scope of Rule 26(b)(1) relating to facts, the application of law to fact, or opinions about either; and the genuineness of any described documents.” Fed. R. Civ. P. 36(a)(1) If a matter is not admitted, the answer must specifically deny it or state in detail why the answering party cannot truthfully admit or deny it. Fed. R. Civ. P. 36(a)(4) Further, “a denial must fairly respond to the substance of the matter,” and a party may assert lack of knowledge only if it represents that it has made “reasonable inquiry and that the information it knows or can readily obtain is insufficient to enable it to admit or deny the request.” Id. Objections to Requests to

Admit must be in writing and clearly state why the request to admit falls outside the scope of permissible discovery under Rule 26(b)(1). Fed. R.

Civ. P. 36(a)(5); Fed. R. Civ. P. 36 advisory committee’s note to 1970 amendment. Unless the court finds that an objection is justified, it must order an answer. Fed. R. Civ. P. 36(a)(6)

Because Rule 36 incorporates Rule 26(b)(1) standards, a receiving party may seek a protective order on the grounds that requests seek irrelevant information or are too voluminous and burdensome to be proportional to the needs of the case. Fed. R. Civ. P. 36; see also Fed. R. Civ. P. 36 advisory committee’s note to 1970 amendment. At the same time, “a reasonable burden may be imposed . . . when its discharge will facilitate preparation for trial and ease the trial process.” Fed. R. Civ. P. 34 advisory committee’s note to 1970 amendment.

In Raymond Ng v. HSBC Mortgage Corp., CV-07-5434 (RRM)(VVP) (EDNY

01/27/09), the Court set forth the following standard regarding the failure of a party to answer a “Request to Admit”:

Under Rule 36, once matters are admitted by operation of the rule because a party fails to respond to a Request for Admissions within 30 days, the only recourse available is a motion to withdraw the admission under Rule 36(b). Such a motion may be granted if that “would promote the presentation of the merits of the action and if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits.” Fed. R. Civ. P. 36. No such motion was before the court at the time of the conference, and none is before the court now. The matters in the defendants’ Request for Admissions are therefore “conclusively established” for purposes of this action unless and until a motion is granted permitting withdrawal. Fed. R. Civ. P. 36(b).

Pursuant to New York’s CPLR Rule 3123, at any time after service of the answer or after the expiration of (20) days from service of the summons, whichever is sooner, and not later than (20) days before the trial, a party may serve upon any other party a written request for admission by the latter of the genuineness of any papers or documents, or the correctness or fairness of representation of any photographs, described in and served with the request, or of the truth of any matters of fact set forth in the request, as to which the party requesting the admission reasonably believes there can be no substantial dispute at the trial and which are within the knowledge of such other party or can be ascertained by him upon reasonable inquiry.

A failure to respond to a notice to admit, even where counsel responded by letter with essentially the same information, has been found to constitute admission of the noticed facts. (See ELRAC, INC., d/b/a Enterprise Rent-A-Car v. McDONALD, Jan. 24,

2001, citing Watson v. City of New York, 178 A.D.2d 126, 576 N.Y.S.2d 864 [1st

Dept.1991], ”…and it has been said that a person acts at his/her peril in failing to respond to clear cut matters of fact”, Id. citing Marine Midland Bank, N.A. v. Custer, 97

A.D.2d 974, 468 N.Y.S.2d 793 [4th Dept.1983])

However, in 32nd Ave. LLC v Angelo Holding Corp., 2015 NY Slip Op 08824, (2nd

Dept 12/02/15) the Second Department in New York held as follows:

Here, as the plaintiff correctly contends, … the notice to admit improperly sought concessions that went to the essence of the controversy between the parties and involved matters that clearly were in contravention of the allegations of the complaint. Thus, the third-party defendant could not have reasonably believed that the admissions he sought were not in substantial dispute … , and those items were palpably improper … .

Accordingly, the plaintiff was not obligated to respond to them … . The

Supreme Court therefore erred in deeming those items admitted by reason of the plaintiff’s failure to respond to the notice. Since those items should not have been deemed admitted, the plaintiff’s motion pursuant to CPLR 3123(b) to withdraw those deemed admissions was unnecessary.

In this case, the DOE did not answer the Parent’s “Notice to Admit”, did not seek a protective order regarding the Notice to Admit and has not motioned for a “withdrawal of its admissions” based upon its failure to respond. Accordingly, the following are deemed conclusive admissions by the DOE in this case: each and every assertion made by the Parent in the “Notice to Admit” received in evidence as Parent’s Exhibit

“C.”

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-7-12 & 15) The DOE did not defend “FAPE” and did not challenge the presumption in the law that the Parent has cooperated with the agency.

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

THE PARENT’S CASE

The Parent called (4) witnesses to testify on his behalf, who testified on direct testimony via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f]. (P-N, P-S, P-W & P-X)

The DOE only briefly crossed examined the student’s father. (T-22-4 & P-X) The Parent also submitted (24) documents in evidence. The DOE did not object to the Parent’s documents being received in evidence. (T-13-4) 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 upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (Application of a Child with a Disability, Appeal No. 04-

049).

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

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

2005]) “Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance” had it offered the student a FAPE. (Burlington, 471 U.S. at 370-71, 20 U.S.C. § 1412[a][10][C][ii] and 34

C.F.R. § 300.148)

The DOE failed to call any witnesses to testify on its behalf, did not submit any documents in evidence, failed to file and serve an answer or serve a “Prior Written Notice” in this case. (See 20 U.S.C. 1415(f)(3)(e) & T-7-12 & 15) “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 2017-2018, 2018-2019 and 2019-2020 school years 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 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 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, the refore 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 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 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:

7. I met and evaluated [STUDENT NAME] in January 2019 and again in

June 2019.

8. The reports from my January 2019 and June 2019 psychoeducational evaluations have been offered into evidence for this hearing.

9. My testing of [STUDENT NAME] revealed that he has Specific Learning Disorder with Impairment in Reading (otherwise known as dyslexia).

10. Based upon my testing, [STUDENT NAME] was found to have clinically significant learning difficulties related to reading and writing that required him to be in a small class in a small-specialized language based multi-sensory school setting with a high teacher-to student ratio in the classroom.

11. Additionally, it was important, based on his needs, that he be placed in a full-time special education school for intelligent children with similar learning needs (dyslexia) as him.

13. As detailed in my June 2019 psychoeducational evaluation report, at the time of testing, [STUDENT NAME] required a small, specialized language-based classroom in a small, specialized school which utilizes specialized language based multi-sensory programs with a high teacher to student ratio in the classroom.

14. At the time of testing, [STUDENT NAME] also required specialized one-on-one and small group concentrated reading support to address his reading deficits.

15. I am familiar with the [PRIVATE SCHOOL NAME] School ("[PRIVATE SCHOOL NAME]") located in New York, New York.

16. [PRIVATE SCHOOL NAME] offers an appropriate educational program for [STUDENT NAME] to address his academic, social and emotional needs.

17. It is my professional opinion that [PRIVATE SCHOOL NAME] is an appropriate placement for [STUDENT NAME]. He has made progress while a student there.

18. I base these statements upon my expertise, years of experience in the field of clinical and school psychology and special education in New York City, discussions with his parents, teachers and therapists. (P-S)

The DOE did not cross examine the clinical psychologist. As such, his testimony is completely uncontroverted.

The Director of academic Support at the private school also testified on direct examination via affidavit. She stated the following:

19. I am familiar with [STUDENT NAME], .

20. [STUDENT NAME] was a student at [PRIVATE SCHOOL NAME] for the 2019-2020 school year.

21. I was one of the individuals on the admissions team of the school and I reviewed the neuropsychological report on file and my recommendation was to bring [STUDENT NAME] in for a screening. At the time of his admission application, [STUDENT NAME] was attending [PREVIOUS SCHOOL NAME].

23. For the 2019-2020 school year, [STUDENT NAME] was in a selfcontained classroom. He was one of ten students with a Head Teacher and an Assistant Teacher. [NAME], the Head Teacher, holds a master's degree in General and Special Education. [NAME], the Assistant Teacher, holds a master’s degree. All skill areas (reading, writing and math) are broken into smaller groups of 6 students and taught with his teachers who are trained in the Reading Program Preventing Academic Failure and the Math Program Singapore Math.

24. At [PRIVATE SCHOOL NAME], [STUDENT NAME] received Language and Speech Therapy twice weekly - one session for 45 minutes in a group of five to six students and one session for 30 minutes in a group of three to four students. The Speech Language Therapist is Licensed and Certified in Speech Language Pathology.

25. Across all activities, [STUDENT NAME] benefitted from short, clear instructions, repetition of directions, and a multi-sensory approach to learning.

26. Speech-language therapy focused on receptive, expressive, pragmatic and academic language. [STUDENT NAME] applied the following skills when provided with scaffolding completes 2-3 step oral directions, containing temporal language/temporal clauses, responds to contextual wh-questions appropriately, identifies figurative meaning of an ageappropriate idiom, describes 5-6 attributes of a given object, compares and contrasts the attributes of 2 objects, explains more than one meaning of an age appropriate multiple meaning word, identifies appropriate social context to use a particular idiom, identifies two different perspectives on a given topic, applies strategies for following directions, and uses Venn diagram to compare and contrast two items.

27. [STUDENT NAME] demonstrates weaknesses in both comprehension and processing of oral and written language as well as his organization of expressive language. He also presents with challenges in terms of word retrieval.

28. He benefits from visual supports to describe an object’s semantic features and from sentence starts and/or word banks to remind him of possible attributes and increase his use of rich descriptive language.

29. He requires support in distinguishing literal and figurative meanings of idioms during spontaneous conversation.

30. Progress has remained steady and the same recommendations and frequency of therapy remains the same for the 2020-2021 school year.

31. [STUDENT NAME] also received Counseling Therapy once weekly in a group of five for 45 minutes each session. The Counselor is a Licensed and Certified School Psychologist to address [STUDENT NAME]’s attention and stamina needs. He often engaged in tangential and off topic behaviors - he needed the refocusing and redirection of the school psychologist to stay on task. His progress has been slow, steady and positive for the 2019-2020 school year. [STUDENT NAME] has learned to work collaboratively and to identify and express his feelings via counseling. Progress has remained steady and the same recommendations and frequency of therapy remains the same for the 2020-2021 school year.

44. [STUDENT NAME]’s present program at [PRIVATE SCHOOL NAME]

is meeting his needs.

45. Overall, [STUDENT NAME] has made steady progress at the [PRIVATE SCHOOL NAME] School. This is an appropriate program for him and is meeting his needs across all domains including academic, social, and emotional. (P-W)

The DOE did not cross examine the Director of Academic Support at the private school. Accordingly, her testimony is completely uncontroverted.

The Parent’s final witness is the student’s father, who also testified on direct via affidavit. He stated as follows:

12. On or about June 14, 2019, we received confirmation from the DOE that they received our request for an IEP meeting and consent to evaluate.

13. The CSE requested that we provide a Child & Adolescent Health Examination Form. We provided this to the DOE on July 5, 2019.

14. On or about August 15, 2019, through our lawyer, we sent a ten-day notice letter to the CSE notifying the DOE of our intent to place [STUDENT NAME] at the [PRIVATE SCHOOL NAME] School and seek tuition reimbursement for the 2019-2020 school year.

20. The Committee on Special Education ("CSE") recommended a 12:1+1 classroom in a DOE public school. When I visited the public school recommended to us, PS [PUBLIC SCHOOL NUMBER], they did not have a 12:1+1 classroom. I communicated to the DOE that the recommendation was inappropriate and PS [PUBLIC SCHOOL NUMBER] could not implement the IEP. Accordingly, I rejected the IEP and the placement recommendation as it could not be implemented for [STUDENT NAME].

No other IEP or placement was offered to him.

23. My wife and I are seeking full funding from the DOE for full tuition at The [PRIVATE SCHOOL NAME] School for the 2019-2020 school year.

24. We are seeking reimbursement for the amounts we paid to the school and prospective funding to [PRIVATE SCHOOL NAME] for any outstanding amounts.

25. We are also seeking roundtrip air-conditioned transportation in a minibus to and from our home, with limited travel time (under one hour).

26. We are seeking reimbursement for out of pocket expenses incurred a result of securing placement at the [PRIVATE SCHOOL NAME] School including any admissions fees and school fees or transportation to and from school.

27. We are seeking reimbursement for the neuropsychological evaluation by Dr. [NAME] (January 2010 and June 2019) which we privately paid for.

28. We have always been and still remain open to working with the DOE to develop an appropriate IEP and find an appropriate school for

[STUDENT NAME]. (P-X)

The DOE did cross examine the Parent. On cross examination, the student’s father testified that prior to obtaining the private psycho-educational he did not inform the DOE that he was going to have it done. (T-22) None of his conversations with the DOE discussed reimbursement for a privately obtain evaluation and they were all centered around the specific wellbeing of the student and finding the best solution and exploring all the options for the best opportunity for his learning. (T-23)

On re-direct examination, the witness noted that his 10-Day notice dated August 15, 2019, gave the DOE notice of his intention to seek reimbursement for the private school, as well as reimbursement for any out-of-pocket expenses, including tutoring, or counseling, and private evaluations. (T-24-5 & P-B) However, it is noted that the private evaluation was obtained January 1, 2019, and updated June 12, 2019, (7) and

(2) months respectively from when the Parent’s “notice” was served. There was no re-cross examination of the witness. (T-25)

As noted above, 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 tuition reimbursement. (See SRO No. 04-049)

The Parent attended the IEP meeting and served the DOE with “10-Day Notice” of the student placement at the private school. (P-B) Accordingly, equitable considerations do not bar an award on behalf of the Parent.

To show the appropriateness of the private school placement, 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 him to benefit from instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65) The evidence above is clear and undisputable. I need not repeat it. The DOE’s default is a tacit concession that the student was denied a FAPE for the 2017-2018, 2018-2019 and 2019-2020 school years, which amounts to a “gross violation” of FAPE. (Supra) Based on the record, I find that the private school was an appropriate placement for the student for the 2019-2020 school year in that it is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., Gagliardo, and Berger, supra)

PARENT’S REQUEST FOR COMPENSATORY SERVICES

The Parent request an award of compensatory services. As noted above 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]) What’s more, 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])

Here, a finding of a “gross violation” of FAPE could easily result in an award of compensatory services, but the Parent testimony and documentary evidence has not drawn the undersigned the undersigned’s attention to any “well-articulated plan”, the nature of the specific compensatory services sought, the identification of any provider or the amount of and the cost of the compensatory services sought. Accordingly, the undersigned does not award compensatory services in this case.

PARENT’S REQUEST FOR SPECIAL TRANSPORTATION SERVICES

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]) 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]) 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) 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])

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]) 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]) 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)

In this case, there is no indication in the hearing record as to the student's need for special transportation during the 2019-2020 school year and no verifiable indication that special transportation was previously requested. The student’s “medical form” dated June 28, 2019 does not recommend transportation services for the student, has no referrals and recommends him for “full physical activity.” Accordingly, the hearing record does not support a finding that the student would be denied a FAPE if there was a lack of provision for special transportation.

However, this does not 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 recommend ed” by the CSE. (See Educ. Law 3635; 4402[4][[d]) If the DOE has not done so already, it may consider transportation of the student to the private school in accordance with the above.

PARENT’S REQUEST FOR REIMBURSEMENT FOR PRIVATE EVALUATION

If the parent disagrees with an evaluation obtained by the school district, the parent has a right to obtain an independent evaluation at public expense. Regulations of the Commissioner of Education § 200.5(g). (“NYCRR § 200.5”) If the parent request an independent educational evaluation 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. 8 NYCRR § 200.5(g)(iv). 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.

The statute as written contemplates that the Parent will give the DOE fair notice of his or her request, so that the DOE’s option to “either ensure an independent evaluation is provided at public expense or initiate an impartial hearing.” Here, the Parent testified that his “10-Day Notice”, requesting reimbursement for a privately obtained evaluation, is sufficient notice under the statute, for a privately obtained evaluation her received (7) months prior on January 31, 2019, and which was updated

(2) prior, on June 12, 2019. (P-B, P-D & P-E) I do not find this notice to be fair, or equitable, in that it denies the DOE the opportunity to comply with the statute’s requirements, before being obligated to pay for the cost of the private/independent evaluation. It is important to note that the Parent testified he did not inform the DOE that he was going to have the private evaluation conducted and that none of his conversations with the DOE discussed reimbursement for a privately obtain evaluation and that they were all centered around the specific wellbeing of the student and finding the best solution and exploring all the options for the best opportunity for his learning.

(T-22-3)

It is also important to note that 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"]).

Additionally, 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 reimbursement for the cost of the student’s independent evaluation. However, I will exercise my discretion and order the DOE to conduct evaluations of the student of the student in any areas of his suspected disabilities that have not been evaluated in the last (2) years, which the Parent may or may not agree with, and if she does not agree with the evaluation, the Parent may invoke their right to an IEE at that time.

For all of the reasons stated herein, I find that the Burlington/Carter test is satisfied in favor of the Parent and that he has met his burden under Schaffer to prevail in his request for tuition reimbursement.

There is nothing in the record that support a finding that the Parent has not cooperated with the DOE.

NOW therefore, it is hereby

ORDERED upon the DOE’s DEFAULT, Its CONCESSION and after INQUEST that based upon the DOE’s default and concession of a denial of a “gross violation” of FAPE for the 2019-2020 school year, 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 tuition at the private school, as well as for cost and fees, counseling services the student received threat for the entirety of his 2019- 2020 school year; 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 his 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: November 28, 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)