New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION - DOE DEFAULT & INQUEST

Case Number: 186678

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

Date of Birth:

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 02/03/20

Actual Record Close Date: 07/06/20

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Title For Date DOE Representative DOE 02/03/20 Attorney PARENT 02/03/20

Mother PARENT 02/03/20 Assistant Principal PARENT 02/03/20

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 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973, concerning a dispute between the Parent of a (_ )

year old student attending a private school and the New York City - Department of Education (“DOE”) - District: |, regarding the student's special education program.

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 February ^[3], 2020. The parties opted to submit a written closing statements that were received on March 13, 2020. (D- (b) An order that the DOE fund compensatory OT, PT, and SLT, at market rates; and (c) An order that the DOE fund after-school one-on-one special education instruction by an ABA-trained provider, at market rates; and (d) Anorder that the DOE provide bus transportation; and (e) An order that the DOE directly fund the student’s placement at the private school for the 2019-2020 12-month school year; and (f) An order that the DOE fund PROMPT therapy after school (3x30 per week) for the 2019-2020 school year, by a provider of the Parent’s choice, at market rates; and (g) | Anorder for additional compensatory relief; and (hn) Payment of attorney's fees and expenses.

At the hearing, the Parent stated through counsel that she had arrived at an agreement with the DOE regarding “pendency.” (T-9) However, because it just happened, and the student did not get SEIT services after school, the Parent is seeking compensatory services. (T-10)

The DOE concedes that for the 2017-2018 school year, the student is owed approximately (35) sessions of speech language therapy, (15) sessions of physical therapy, and (15) sessions of occupational therapy to be provided via RSA's. (T-12)

For the 2019-2020 school year, the DOE concedes that that the student is entitled to (180) hours of compensatory SETSS services to be provided via a “P-4.” (T-13)

The Parent also stated through counsel that she was no longer seeking an

THE DOE’S CASE

The DOE did not call any witnesses to testify on its behalf, submitted (2) documents in evidence (T-6 & 34), and did not object to the Parent’s exhibits with the exception of one. (T-29) The testamentary and documentary evidence for and against the DOE’s case in default is incorporated in the decision below.

THE PARENT’S CASE

The Parents called (2) witnesses to testify on her behalf, who did not testify on direct examination via affidavit pursuant to 8 NYCRR 200.5{j][3][xii][f]. The DOE cross examined only one of the witnesses. (T-64) The Parent also submitted (30) documents in evidence. The DOE did not object to any of the Parent’s documents being received in evidence with the exception of one document. (T-29) The testamentary and documentary evidence for and against the Parent's case is incorporated in the decision below.

FINDINGS OF FACTS & DECISION - DOE DEFAULT & INQUEST

IDEA ensures that students with disabilities are afforded a free and appropriate public education (“FAPE”). (20 U.S.C. § 1400 & Schaffer v. Weast, 126 S.Ct. 528 [2005]) A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP. (20 U.S.C. 1401(8) & 141(d) and 34 C.F.R. § 300.13) The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. (Schaffer, 126 S.Ct. 528, 537)

The DOE may be required to reimburse Parents for their expenditures for private educational services obtained for a student, if the services offered by the DOE were inadequate or inappropriate, the services selected by the Parents are appropriate and equitable considerations support the parent’s claim. (Sch. Comm. Of Burlington v. Dept.

of Educ., 471 U.S. 359 (1985), Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2"° Cir. 2005])

The first step is to determine whether the DOE offered to provide the student a FAPE. (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2° Cir. 2000]) A FAPE is offered to a student when (a) the DOE complies with procedural requirements set forth in IDEA and (b) the IEP developed by the CSE through the procedures set forth in IDEA, is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. V. Rowley, 458 U.S. 176, 206-7 [1982]) The student’s recommended program must also be provided in the least restrictive environment (“LRE”). (20 U.S.C. § 1412(a)(5)(A), 34 C.F.R. § 300.550(b), 8 NYCRR §200.6(a)[1])

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

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

Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties’ compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties’ positions, and like matters” (Wolfe _v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a_ claim of _ tuition reimbursement. (Application of a Child with a Disability, Appeal No. 04-049).

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

(Burlington, 471 U.S. at 370-71, Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186 at 192 [2d Cir. 2005]) “Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance” had it offered the student a FAPE. (Burlington, 471 U.S. at 370-71, 20 U.S.C. § 1412[a][10][C]Iii] and 34 C.F.R. § 300.148)

The DOE failed to call any witnesses to testify on its behalf, failed to submit any documents in evidence, failed to file and serve an answer but did provide a “Prior Written Notice” in this case (received as P-D & P-E), and did not object to the Parent’s documentary evidence. (See 20 U.S.C. 1415(f)(3)(e) & T-6 & 34) “Prior Written Notice” means written statements developed in accordance with Section 200.5(a) of the Regulations of the Commissioner of Education, and provided to the parents of a student with a disability a reasonable time before the school district proposes to or refuses to initiate or change the identification, evaluation, or educational placement of the student or the provision of a free appropriate public education to the student.

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

The DOE has the burden of production and persuasion at an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement.

(See Educ. Law § 4404[1][c]) Here, the DOE did not proffer any evidence that it has offered the student a FAPE. (Supra) This amounts to a concession that the agency did not offer the student a FAPE. As previously noted, the DOE did not serve and file an answer in the case, nor did the agency serve the Parent with “Prior Written Notice’, which would provide either a denial of the Parent’s allegation, or some explanation for the agency’s failure to provide a FAPE. (See 20 U.S.C. 1415(f)(3)[e])

It would be fundamentally unfair to allow either party to rely solely on the submission of documents in meeting its burden under law, where those documents are rife with double, triple and even unidentified hearsay sources, that cannot be cross examined. While compliance with technical rules of evidence is not required in administrative hearings, under certain circumstances, the receipt of hearsay evidence may be so prejudicial as to have a tendency to deprive a party of fair hearing. (See Strain _v. Sarafan, 57 A.D.2d 525, 393 N.Y.S.2d 572, N.Y.A.D. (1977), where the hearsay testimony was of vital importance and should have been subjected to cross-examination by the petitioner...the petitioner was deprived of a meaningful hearing,_ Dukes v. New York City Housing Authority, 63 A.D.2d 690, 404 N.Y.S.2d 889, N.Y.A.D.

(1978), holding that the excessive reliance on hearsay evidence effectively denied petitioner the right to cross-examine adverse witnesses, Claim of Evans, 254 A.D.2d 564, 678 N.Y.S.2d 696, N.Y.A.D. (3 Dept. 1998), (where in an unemployment compensation proceedings, administrative law judge (‘ALJ’) properly exercised discretion to exclude hearsay evidence to protect employer's fundamental right of cross-examination, where claimant proffered written hearsay statement, authored by acquaintance of the employer’s president, which allegedly indicated that claimant did not resign but was fired, but the acquaintance failed to answer subpoena directing him to testify at hearing, thereby denying employer the opportunity to cross-examine him on the statement, and Alvarado v. State of New York, 110 A.D.2d 583, 488 N.Y.S.2d 177 (1*' Dept. 1985), holding that a license suspension hearing against a boxer and his managers was faulty because of a lack of an opportunity “to cross-examine certain witnesses whose reports were introduced into evidence without their testifying, in violation of SAPA Section 306, subd. (3).” (Id. at 585, 488 N.Y.S.2d at 179)

However, here the DOE did not present a case-in-chief and did not controvert the documentary evidence submitted by the Parent. (Supra) The credibility of the documentary evidence was not rebutted by the agency and the documentary evidence is clearly relevant and material to the issues to be determined. I find the documentary and testamentary evidence submitted by the Parent in this case to be credible and uncontroverted in this case.

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

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

The DOE has conceded liability by failing to present a case and meet its burden under the law. New York State law has placed the burden of production and persuasion at an impartial hearing on the school district, unlike states which align the burden of production and persuasion consistent with Schaffer v. Weast, 546 U.S. 49, 58-62 [2005]. It is not an IHO's responsibility to craft the DOE’s position regarding the primary issue in the case, for the denial of FAPE. The undersigned finds that the DOE failed to adhere to the requirements of the law, has denied the student in this case a FAPE and that the Parent may be entitled to the proven relief she has requested. The DOE has defaulted on its statutory obligation and I find that the student was denied a FAPE for the 2017-2018, 2018-2019 and 2019-2020 school years.

The party who defaults in concedes only liability and not the amount of “damages.” (See CPLR § 3215, First Nat. Bank & Trust Co. v. Classic Collateral Corp., 44 A.D.2d 868, 355 N.Y.S.2d 504 (1974), James _v. Powell, 19 N.Y.2d 249, 279 N.Y.S.2d 10, 225 N.E.2d 741 (1967), McClelland v. Climax Hosiery Mills, 252 N.Y. 347, 169 N.E. 605 (1930) The DOE’s default constitutes an admission of liability, but not of damages, which remains the Parent's burden to prove. (See Fed. R. Civ. P. 55 & City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114 at 128 [2d Cir. 2011])

I now turn to the question of whether the DOE should be required to reimburse and/or pay for the private educational services and relief requested for the student, because the services offered by the DOE were inadequate or inappropriate, and the relief sought and services selected by the Parents are appropriate and equitable considerations support the Parents’ claim. (Burlington, Florence and Cerra, Supra) The Parent need only demonstrate that the requested services are specially designed to meet the unique needs of the student, supported by such services as are necessary to permit him to benefit from the instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65)

A private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs. (See Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129 and Matrejek, 471 F. Supp. 2d at 419)

A Parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (See Carter, 510 U.S. at 14) The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-014 and 01-105) Parents also need not show that the placement provides every special service necessary to maximize the student's potential. (See Frank G., 459 F.3d at 364-65) When determining whether the Parents’ unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]])

There is a 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 Il”), 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]jJ[5IIv])

Shaffer decision of the Supreme Court of the United States issued on November 14, 2005, held as follows:

“We hold no more than we must to resolve the case at hand: The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. In this case, that party as Brian, as represented by his parents. But the rule applies with equal effect to school districts: If they seek to challenge an IEP, they will in turn bear the burden of persuasion before an ALJ.

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

62 [2005] (emphasis added)

Here, for the reasons stated above, the DOE did not meet its burden under the law. (Supra) I find that the student has been denied a FAPE for the 2017-2018, 2018-2019 and 2019-2020 school years.

A gross violation of the IDEA may result from the denial of, or exclusion from, educational services for a substantial period of time. (See SRO No. 04-074, citing Mrs.

C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990), Burr v. Ambach, 863 F.2d 1071 (2d Cir.

1988) and SRO No. 02-047.) In Burr, exclusion from educational services for a substantial period of time was defined as “almost two years.” (See SRO No. 02-033 citing Burr “...after a severely disabled student's school was closed, prolonged delays in the administrative proceedings in obtaining a new placement resulted in a complete exclusion from any educational placement for the student for almost two years.” I find that the three-year violation in this case meets the standard of a “gross violation” of FAPE.

I now turn to the question of whether the relief sought by the Parent is appropriate. As noted above, the DOE may be required to reimburse and/or pay for the private educational services and relief requested for the student, because the services offered by the DOE were inadequate or inappropriate, and the relief sought and services selected by the Parents are appropriate and equitable considerations support the Parent’s claim. (Burlington, Florence & Cerra, Supra) As previously noted, the Parent need only demonstrate that the requested services are specially designed to meet the unique needs of the student, supported by such services as are necessary to permit her to benefit from the instruction. (Gagliardo & Frank G., Supra)

In sum, substance and relevant part, the evidence in this case is completely uncontroverted and in favor of the Parent. The student started to sign more language after he started to receive after-school SEIT services. (P-DDD citing T-70-1) The student was entitled to bus transportation to school based upon both of his Spring of 2019 IEPs. (P-DDD citing T-72-3, D-1 & P-BB) There is extensive evidence in the record as to the programs and services that the private school offers which make it an appropriate placement for the student. (P-DDD citing T-47-67, P-H, P-l, P-k, P-L & PBBB) Additionally, the three-year denial of FAPE clearly evidences the student’s entitlement to compensatory services, supported by the testamentary and documentary evidence received at the hearing. (P-DDD) Accordingly, I find that the record above sufficiently establishes that the relief sought for the three-year denial of FAPE is appropriate. There is nothing in the record that supports a finding the Parents have not cooperated with the DOE. For all of the reasons stated herein, I find that the Parent is entitled to the relief sought.

NOW therefore, it is hereby

ORDERED upon the DOE’s DEFAULT and after INQUEST that upon its receipt of reasonably satisfactory proof of services having been rendered, the DOE shall either reimburse the Parent and/or direct pay the cost of the student’s tuition at the private school for the entirety of his 2019-2020 school year thereat; for his receipt of after school PROMPT therapy, 3x30, for the entirety of his 2019-2020 school year, at a rate not exceed the reasonable and fair market rate for such services in New York City; reimbursement for the Parent's provision of transportation service for the student's summer of 2019 school session in an amount not to exceed $4,600; (420) hours of 1:1 ABA instruction, at a rate not exceed the reasonable and fair market rate for such services in New York City; (84) thirty-minute sessions each of Speech, OT and PT, ata rate not exceed the reasonable and fair market rate for such services in New York City; (10) hours of 1:1 SEIT services per week at a rate not exceed the reasonable and fair market rate for such services in New York City, (10) hours of 1:1 after-school ABA instruction per week at a rate not exceed the reasonable and fair market rate for such services in New York City, all of these services to be calculated on the basis of having been, or should have been provided during the entirety of the time compromising the entirety of the student’s 2019-2020 school year; and it is further

ORDERED upon the DOE’s DEFAULT and after INQUEST that in so much as “pendency relief has been characterized by the Second Circuit as an "automatic injunction” that when invoked is to be immediately implemented by “operation of law” unless disputed, (see Zvi D., 694 F.2d at 906 (2d Cir. 1982), without the need for a “hearing” and/or an “order”, so as to continue services for a student through the pendency of the “impartial hearing” process, and so that he or she is not harmed by a break or a denial of services, and because in this case, the NYC-DOE refused to administratively recognize “pendency” as is customarily done throughout New York State, and because the NYC-DOE refusal to recognize “pendency” where, as here, there is no dispute as to what constitutes “pendency”, and, whereas here, the NYC-DOE refusal to administratively recognize “pendency” caused the student to suffer a break and/or denial in the receipt of services mandated by the parties’ “Pendency Agreement”

3 ot (P-CCC), and because the Second Circuit has repeatedly emphasized that a child is entitled to compensatory education when the district fails to implement pendency. (See

Toth v. N.Y.C. Dep't. of Educ., 720 Fed. Appx. at *51 (2d Cir. 2018); see also Doe v. E.

Lyme Bd. of Educ., 790 F.3d 440, 456 (2d Cir. 2015) (reversing district court award that would “undermine the [IDEA’s] stay-put provision by giving the [school district] an incentive to ignore the stay-put obligation.”), cert. denied, 136 S. Ct. 2022 (2016); Dervishi v. Stamford Bd. of Educ., 653 Fed. Appx. 55, 2016 WL 3548246, at *2 (2d Cir.

June 27, 2016)(summary order)(same; remanding to district court to award missed services under pendency); Student X. v. N.Y.C. Dep't. of Educ., 2008 WL 4890440, at *23-26; Burr v. Ambach, 863 F.2d at 1078 (2d Cir.1988) (awarding compensatory relief for delays in hearing process), vacated sub nom. Sobol v. Burr, 492 U.S. 902 (1989), aff'd on recon. sub nom, Burr by Burr v. Sobol, 888 F.2d 258 (2d Cir. 1989); see SRO No. 18-135, at 15, 18 (remanding to IHO to determine compensatory education for denial of FAPE and to calculate compensatory education for failure to implement pendency); it is ordered that the student in this case shall receive compensatory services in the amount of and in the nature of, those services the student did not receive since September 4, 2019 to the present, the cost of which shall be paid by the NYCDOE, upon its receipt of reasonably satisfactory proof of the student’s entitlement and denial of those services, and reasonably satisfactory proof of those compensatory services having been rendered; and it is further

ORDERED upon the DOE’s DEFAULT and after INQUEST that the DOE shall immediately conduct evaluations of the student in all areas of 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 and after INQUEST that the DOE shall forthwith reconvening the CSE after the completion of the student’s evaluations and consider those evaluations and any other relevant information and produce a new IEP for the student’s 2020-2021 school year; and it is further

ORDERED upon the DOE’s DEFAULT and after INQUEST that any of the other relief sought by the Parent not addressed by this decision is found to be either agreed upon by the parties, withdrawn by the Parent, outside the scope of the IHO’s authority or unsupported by the record.

DATED: July 16, 2020

New York, New York Edgar De Leon - IHO

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov. (Rev. 07/09/20)

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For #of Pages

IEP 04/02/19 DOE 17

Withdrawn / Not Received N/A DOE N/A Closing Statement 03/13/20 DOE 03

09/04/19 10

CTHAMTNAMDOIV7MOZVOHWACST

IHR PARENT

Partial Resolution Agreement 09/26/19 PARENT 02

Withdrawn / Not Received N/A PARENT N/A

PWN 04/04/19 PARENT 04

PWN 05/06/19 PARENT 05

Classroom Observation 02/25/19 PARENT 05

Social History 01/15/19 PARENT 04

Class Schedule 2019-2020 PARENT 02

Academic Review 09/20/19 PARENT 03

Speech Report 08/09/19 PARENT 02

OT Report 08/05/19 PARENT 02

PT Report 09/04/19 PARENT 02

FBA 11/11/19 PARENT 05

BIP 11/11/19 PARENT 07

Affidavit of Tuition 07/22/19 PARENT 03

Attendance Record 2019-2020 PARENT 03

Withdrawn / Not Received N/A PARENT N/A Proof of Payment 07/2019 PARENT 07

Email 08/26/19 PARENT 12

Tax Return 2018 PARENT 02

10-Day Notice 06/25/19 PARENT 05

Withdrawn / Not Received N/A N/A <m

5 PARENT

IEP 05/23/19 PARENT 21

CC-HH Withdrawn / Not Received N/A PARENT N/A T Letter of 03/18/19 PARENT 03

JJ Withdrawn / Not Received N/A PARENT N/A KK SEIT Report 08/09/19 PARENT 02

LL-MM Withdrawn / Not Received N/A PARENT N/A NN Speech Report 03/11/19 PARENT 07 ole Withdrawn / Not Received N/A PARENT N/A PP Educational Report 03/06/19 PARENT 04

QQ OT Report 01/2019 PARENT 02

RR OT Report 02/25/19 PARENT 04

Ss PT Report 03/11/19 PARENT 04 TT-AAA Withdrawn / Not Received N/A PARENT N/A BBB Brochure undated PARENT 02 CCC Pendency Agreement 01/30/20 PARENT (?) DDD Closing Statement 03/13/20 PARENT 23

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

Footnotes

[3] & P-DDD) A list of the persons appearing at the hearing and the documents received in evidence in annexed hereto. BACKGROUND This case was initiated as the result of a written Due Process Complaint (“DPC”) made by the student's Parent via her attorney(s), the , and received at the Department of Education Impartial Hearing Office (“DOE-IHO”) on or about September 4, 2019. The DPC is carried under New York City (“NYC”) Case No. 186678. The Parent in this case alleges that the student has been denied 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) An order that the DOE fund an independent assistive technology evaluation; and independent assistive technology evaluation because they were able to come to a partial resolution in the beginning of this case and the student received the assistive technology evaluation by the DOE and a communication device in the beginning of January. (T-16)