New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION - DOE DEFAULT & INQUEST

Case Number: 186460

NYS Identifier Number

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 03/10/20

Actual Record Close Date: 10/12/20

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

[CONFIDENTIAL] DOE Representative DOE 03/10/20

[CONFIDENTIAL] Attorney PARENT 03/10/20

[CONFIDENTIAL] Mother PARENT 03/10/20

[CONFIDENTIAL] Father PARENT 03/10/20

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For # of Pages

01 IEP 07/17/19 DOE 26

A Request for impartial

hearing, 9/3/19, three

pages

B Notice of unilateral

placement, 8/21/19, three pages

C Neuropsychological

evaluation, 7/1/19, 26

pages

D Private school tuition

agreement, 6/9/19, one

page

E Private school

schedule, 9/19/19, one

page

F Private school IEP with

Present Levels of

Performance report,

2019/2020, four pages

G Private school speech

report,2019/2020,three

pages

H Private school

occupational therapy report,

2019/2020, two pages

I Private school

counseling report,

2019/2020, three pages

J Affidavit of

[Confidential] 3/9/20, eight pages

K Affidavit of

[Confidential,

3/10/20, four pages

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

On October 16, 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”) - , 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 March 10, 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 Parents through their attorney(s), [CONFIDENTIAL] and received at the Department of Education Impartial Hearing Office (“DOE-IHO”) on or about September 3, 2019. The DPC is carried under New York City (“NYC”) Case No.

186460. 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) Payment of the cost of the student’s tuition and transportation to and from the private school for the 2019-2020 school year.

THE DOE’S CASE

The DOE did not call any witnesses to testify on its behalf and submitted (1)

document in evidence. (T-5-6 & 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 (2) witnesses to testify on her behalf, who testified on direct testimony via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f]. (P-J & P-K) The DOE crossed examined only one of the Parent’s witnesses. (T-20 & P-K) The Parent also submitted (1) documents in evidence. The DOE did not object to the Parent’s documents being received in evidence. (T-12) 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, and did not even make an opening or a closing statement. (See 20 U.S.C. 1415(f)(3)(e) & T-5-6 & 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 documentary evidence submitted by the Parent. (Supra) The credibility of the documentary evidence was not rebutted by the agency and the documentary evidence is clearly relevant and material to the issues to be determined. I find the documentary and testamentary evidence submitted by the Parent in this case to be credible and uncontroverted in this case.

As noted above, the DOE’s failure to present a case at the hearing is a concession that it denied the student a FAPE and that if the Parent meets her burden under Schaffer v. Weast, the Parent is entitled to the proven relief she seeks. This leaves, as the primary issue to be resolved through impartial hearing, what relief and/or compensatory education remedy, if any, is available and appropriate to remediate the denial of a FAPE. (SRO No. 17-033) It is noted that the DOE was required under the due process procedures set forth in New York State law, to address its burdens in the due process hearing context by describing its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate relief and/or compensatory education remedy that most reasonably and efficiently could place the student in the position that he would have been but for the denial of a FAPE. (See Doe v. E. Lyme Bd.

of Educ., 790 F.3d 440, 457 [2d Cir. 2015], cert. denied, 136 S. Ct. 2022 [2016], quoting Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [noting that the "'ultimate award [of compensatory education] must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place'"]) When, as here, the DOE does not present any case at the hearing, the hearing, the hearing process essentially becomes an “inquest” as to the appropriate relief.

The DOE has conceded liability by failing to present a case and meet its burden under the law. New York State law has placed the burden of production and persuasion at an impartial hearing on the school district, unlike states which align the burden of production and persuasion consistent with Schaffer v. Weast, 546 U.S. 49, 58-62 [2005]. It is not an IHO's responsibility to craft the DOE’s position regarding the primary issue in the case, for the denial of FAPE. The undersigned finds that the DOE failed to adhere to the requirements of the law, has denied the student in this case a FAPE for the 2019-2020 school year and that the Parent may be entitled to the proven relief he has requested.

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 more than we must to resolve the case at hand: The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. In this case, that party is Brian, as represented by his parents. But the rule applies with equal effect to school districts: If they seek to challenge an IEP, they will in turn bear the burden of persuasion before an ALJ. The judgment of the United States Court of Appeals for the Fourth Circuit is, therefore affirmed.” (Supra, 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 first witness for the Parents is the Clinical Director of the student’s private school. (P-J) She testified as follows:

5. is a New York State approved non-public day school. works with students of at least average intelligence who have a history of struggles in the areas of socialization, emotional fragility, self-regulation, or attention, in addition to some of them also having diagnosed learning disabilities. We are approved by the state to accept students with classifications of Learning Disabled, Emotionally Disturbed, and Other Health Impaired. Our students often have diagnoses of Attention Deficit-Hyperactivity Disorder, the "high functioning" part of the Autism spectrum formerly known as Asperger's Syndrome, anxiety, depression, or bi-polar disorders.

does not accept or work with students exhibiting aggressive behavioral tendencies.

7. Classes operate with a staffing ratio of one head teacher as well as one and a half assistant teachers per class of no more than twelve students, or "12:1:1.5." The one-half designation means that for half the day the class has one assistant and for half the day it has two assistants. In addition to small classes, supports its students by providing counseling at 1:1 and 1:3 staffing ratios for all students; a schoolwide behavior management program; student support services; crisis intervention; contact maintained with outside providers and parents to ensure continuity of services; and a school nurse on site.

8. All head teachers are NYS Certified Special Education Teachers; some assistant teachers are certified special education teachers as well, or they have their New York State Assistant Teacher certification.

provides professional development and training to its teachers. During orientation and staff conference days, there are presenters that are brought into the school to cover topics regarding academic instruction and behavior management; in-house staff presentations on relevant topics such as anxiety management and crisis intervention; monthly faculty meetings and weekly teacher and assistant teacher meetings that provide updated information regarding New York State educational policies and how to meet mandates and monitor IEP goals.

12. I am aware of the admissions process for as a result of my conversations with , the admissions director at . was previously attending in Brooklyn in an ASD Nest Integrated CoTeaching classroom. After his application packet was reviewed, he and his parents came to the school for an interview and tour in the spring of 2019.

14. At the time of s enrollment, we knew that he had cognitive abilities in the average to superior range, but with notable deficits in his attention and executive functioning, as well as pragmatic language. While presented with very strong nonverbal reasoning capacities, he also presented with a weak ability to use language to reason and convey his thoughts. Tasks that required increased language processing and expressive demands were challenging for him as was the ability to sustain attention for complex language. In addition, he presented with an underdeveloped ability to understand rules for social conventions. His academic skills were also varied, with areas of strength but also weaknesses in several domains. In reading, presented with strong decoding and word recognition skills but was a very slow reader. While he understood literal material, he had difficulty with more complex reading passages. His spelling was at grade-level, but difficulties with mechanical and grammatical aspects of written expression were also present. His math abilities were at grade level in computation and problem solving. Lastly, he presented with weaknesses in receptive, expressive, and higher order language processing and executive functioning skills, difficulty with sustaining age-expected conversational skills, and perspective taking. His reading comprehension, at the time of his intake as determined by his testing, was around a 4th grade level with word reading at almost a 7th grade level. In writing, struggled with putting his thoughts down on paper and organizing them. His spelling was tested at a 4.9 grade level and his essay composition was found to be below 3rd grade. In math, his skills were found to be mid-sixth grade. While he was able to understand most grade level concepts, he had difficulty writing his answers out as required.

15. Our observation of s needs was very much in line with the June 2019 neuropsychological update we were provided as s social and pragmatic language skills continued to be an area of particular difficulty. has a tendency to interpret non-literal language at only a concrete level, missing the meaning. His slow processing speed negatively impacted his comprehension of lengthier and more linguistically complex language thereby negatively impacting his ability to access the academic curriculum, without modifications and maintaining age-appropriate social relationships, without adult support. often perseverates on the literal meanings in language, which when added to his rigidity, negatively impacts his ability to comprehend abstract language, such as metaphors and humor and to engage effectively with his peers. Pragmatically, struggles with understanding nonverbal communication, perspective taking, flexibility and conversational skills which all add to his difficulty in sustaining age-appropriate peer relationships and understanding his role as a student. He is a student who needs reminders to respect others' viewpoints and differences, as well as to self-monitor his own responses and learn to understand why many of his verbal responses to his peers where felt to be disrespectful by them. In addition, needs support with developing empathy as well as his perspective taking and to learn how to appropriately express his feelings. Lastly, s distractibility, which appears to be both internally and externally driven, requires constant adult monitoring to keep him on task and support his ability to complete his schoolwork as required and in a timely fashion.

16. At , spends most of his day in a 12:1:1.5 ungraded homeroom class of students that were grouped together based on the similarity of their cognitive, behavioral, and emotional needs. For reading and math he is placed in smaller groups with students who have similar strengths and weaknesses to his own in those areas, based on prior testing and teacher reports. These groupings are assessed throughout the year to ensure that they remain appropriate.

presently is in a group of 9 students for reading and 4 students for math. All other classes have 11 students in them at this time.

18. To support s specific needs in the classroom, he is provided with the following individualized accommodations and modifications during the day he is allowed to use his headphones to block noises that he finds uncomfortable, he is able to dismiss from the

Principal's office if the noise level at dismissal becomes problematic for him, he is able to work outside the classroom in a 1:1 situation should he become anxious about his abilities and/or his distractibility necessitates more individualized instruction, he is able to ask to see his clinician when feeling overwhelmed or misunderstood. In addition, is able to have his head on the desk during a class lesson. Life-space interviews occur on a regular basis and are as-needed.

19. is making steady progress in each of his academic courses so far, as a result of the supports being provided by the program.

His teachers report that s improvement can be seen in his assessments and in the frequency and quality of his participation in class. To be clear, still presents with a number of issues that continue to require the support he is receiving. We continue to work with on his attentional struggles and rigidity in class in order to help him attend better to instruction. (P-J)

At the private school, the student also receives related services of speech and language therapy, occupational therapy and counseling. (Id.) The DOE did not cross examine the witness. (Supra)

The Parent’s second and final witness is the student’s mother. (P-K) She testified as follows:

5. Seeing no meaningful recourse available within

, we began to research other school programs that might be able to meet s needs, and soon learned about the School. This appeared to us to be the type of program that could meet s needs, and when we submitted an application and engaged with the admissions staff, they agreed. Once we learned there was a seat open that was being offered to , we signed a contract to reserve it on June 9, 2019, while we determined how to proceed.

6. In order to better understand s needs, we also during this time arranged for him to be seen by the neuropsychologist who had tested him previously for an update in mid-June of 2019. The recommendations from that evaluation were to move him out of the ASD

Nest program and into a small class program with therapeutic supports within a small school. This recommendation was directly in line with the types of supports offered by .

7. We reached out to to discuss these developments and to request an IEP meeting to address the recommendations from the evaluation. We met with an IEP team on June

25,2019. At that time I shared with the team our concerns regarding s disastrous sixth grade year and to request that the team consider a recommendation to place him in a state-approved non-public school setting such as .

8. s teachers at the meeting were in agreement that he needed more support, and agreed that appeared to be an appropriate setting for him, but the district representative at the meeting did not believe she had authorization to recommend that type of setting, and instead allowed his program to remain substantially unchanged. We left the meeting in disagreement with the team, which we shared with them. We never received an IEP from this meeting.

9. Soon thereafter we received a notice scheduling another IEP meeting for , this time with a team of DOE employees we did not know and who had never worked with . We attended this meeting as well, on July 17, 2019, and discussed the same issues and concerns with this team. They too agreed that clearly required a different setting than he was in for the sixth grade, but they again did not believe they had the authority to recommend a non-public school program, especially since he had not ever tried a DOE self-contained class.

11. Upon receiving a Prior Written Notice stating the 12: 1 recommendation, we reached out to to ask about their 12: 1 classes but were informed that the school does not operate any such classes. We were not directed to any other school for implementation of this program either.

14. To date we have paid tuition to in accordance with our enrollment contract.

15. is being brought to school on a school bus provided by the DOE with accommodations of an air-conditioned vehicle, use of a mini-bus, door to door travel, and limited travel time of no more than 60 minutes, all through agreement with the DOE on the July 17,2019

IEP. We need these services to continue in order for to get to school and be in an appropriate frame of mind to be available for instruction. (P-K)

On cross examination, the witness testified that she would have broken the contract with the private school that she signed on June 9, 2019, if she had an appropriate placement for the student. (T-26) She sent the private neuropsychological evaluation she obtained to the DOE as soon as she got it. (T-26-7) There was no school listed in the “Prior Written Notice” (“PWN”) that she received. (T-34)

During voir dire, the witness testified that the private school is a New York State approved non-public school. (T-38)

The DOE’s default is a tacit concession that the student was denied a FAPE for the 2019-2020 school year. (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)

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, the uncontroverted record indicates that the student is being brought to school on a school bus provided by the DOE with accommodations of an air-conditioned vehicle, use of a mini-bus, door to door travel, and limited travel time of no more than 60 minutes, all through agreement with the DOE on the July 17,2019 IEP. (P-

K) Accordingly, there is an indication in the hearing record as to the student's need for special transportation during the 2019-2020 school year and a verifiable indication that special transportation was previously requested. Accordingly, the hearing record does supports 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 recommended” by the CSE. (See Educ. Law 3635; 4402[4][[d]) If the DOE has not done so already, it must continue transportation of the student to the private school in accordance with the above.

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 upon its receipt of reasonably satisfactory proof of services having been rendered, the DOE shall reimburse the Parent for the cost of the student’s tuition and transportation to and from the private school, for the entirety of the student’s 2019-2020 school year thereat; 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 2020-2021 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 2020-2021 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: October 19, 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)