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FINDINGS OF FACTS & DECISION - DOE DEFAULT & INQUEST
Case Number: 187235
NYS Identifier Number N/A Student's Name: [“Confidential”]
Date of Birth:
District:
Hearing Requested By: Parent
Dates(s) of Hearing: 02/04/20
Actual Record Close Date: 05/18/20
Hearing Officer: Edgar De Leon
NAMES AND TITLES OF PERSONS WHO APPEARED
Title Date Attorney 02/04/20 Attorney 02/04/20 Attorney PARENT 02/04/20 Attorney PARENT 02/04/20
Mother PARENT 02/04/20
On September 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 Parent ofa(_)
year old student 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 February 4, 2020. The parties opted to submit written closing statements that were received on March 3, 2020. (D-35 & P-VV) 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’s attorney(s), the 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”)
187235. 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) Reimbursement of tuition for the 1 private school during the 2017-2018 school year; and.
(b) | Reimbursement of tuition for the 2"? private school during the 2017-2018, 2018-19 and 2019-2020 school years; and (c) Reimbursement for the aftercare program during the 2017-2018, 2018-2019 school years; and.
(d) Reimbursement for travel expenses to and from the private programs; and
(e) Reimbursement for the cost of the student’s private evaluation; and
(f) Costs and fees; and (g) | Any additional relief such as the IHO determines is appropriate.
At the impartial hearing, the parties stipulated that the student was designated to receive special education services for the three school years at issue on a 12-month and is classified as having an emotional disturbance. (T-24-5) The Parent stated that her claim for travel expenses is for her going back and forth, and the child's expenses of going back and forth from the residential placements, no for daily transportation. (T-26)
The parties also stipulated that “a residential” placement is appropriate for the student for the three school years at question. (T-45)
THE DOE’S CASE
The DOE did not call any witnesses to testify on its behalf, submitted (10) documents in evidence and did not file an answer in this case. (T-12 & 47) The DOE did not defend “FAPE”, did not challenge the presumption in the law that the Parent has cooperated with the agency and did not object to the majority of the Parents’ documents being received in evidence. (T-42-3) The testamentary and documentary evidence for and against the DOE’s case is incorporated in the decision below.
THE PARENT’S CASE
The Parents called (7) witnesses to testify on her behalf, all on direct examination via affidavit pursuant to 8 NYCRR 200.5{j][S][xii][f]. (P-G, P-BB, P-GG, P-RR, P-SS, PTT & P-UU) The DOE did not cross examine any of the Parent's affiants. (T-43) The DOE did ask the Parent a few questions on cross examination. (T-54-6) The Parent also submitted (39) documents in evidence that the DOE did not object to the majority of the Parent’s documents being received in evidence. (T-42-3) 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 [2°° Cir. 2005])
The first step is to determine whether the DOE offered to provide the student a FAPE. (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2° Cir. 2000]) A FAPE is offered to a student when (a) the DOE complies with procedural requirements set forth in IDEA and (b) the IEP developed by the CSE through the procedures set forth in IDEA, is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. V. Rowley, 458 U.S. 176, 206-7 [1982]) The student’s recommended program must also be provided in the least restrictive environment (“LRE”). (20 U.S.C. § 1412(a)(5)(A), 34 C.F.R. § 300.550(b), 8 NYCRR §200.6(a)[1])
The Parent bears the burden of showing that the private school placement selected is appropriate. (SRO Nos.: 95-57, 94-29 & 93-34) The Parents must show that the private school placement offers an educational program that meets the student’s special education needs. (Burlington, 471 U.S. at 370 & SRO No. 94-20) The private school need not be approved by the state educational agency to provide instruction to children with disabilities. (Florence County School District Four et. al. v. Carter, 510 U.S. 7 [1993]). It is also not required that the private school employ certified special education teachers or have its own IEP for the student. (SRO No. 94-20)
Finally, the IHO must consider whether equitable considerations favor the Parents’ request for tuition reimbursement. State Review Officer (“SRO”) Decision 06-004 holds: Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties’ compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties’ positions, and like matters” (Wolfe _v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a_ claim of _ tuition reimbursement. (Application of a Child with a Disability, Appeal No. 04-049).
In Burlington, the Court found that Congress intended retroactive reimbursement to Parents by school officials as an available remedy in a proper case under the IDEA.
(Burlington, 471 U.S. at 370-71, Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186 at 192 [2d Cir. 2005]) “Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance” had it offered the student a FAPE. (Burlington, 471 U.S. at 370-71, 20 U.S.C. § 1412[a][10][C]ii] and 34 C.F.R. § 300.148)
The DOE failed to call any witnesses to testify on its behalf, submitted (10) documents evidence, and failed to file and serve an answer or a “Prior Written Notice” in this case. (See 20 U.S.C. 1415(f)(3)(e), T-12 & 47) “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 or “Prior Written Notice”, which provides 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] - D-7)
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.
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 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.” |n the instant case, I find that the DOE concession that is has failed to afford the student a FAPE in this case for multiple school years constitutes a gross violation of FAPE under the IDEA.
I now turn to the question of whether the DOE should be required to reimburse and/or pay for the private educational services and relief requested for the student, because the services offered by the DOE were inadequate or inappropriate, and the relief sought and services selected by the Parents are appropriate and equitable considerations support the Parent's claim. (Burlington, Florence and Cerra, Supra) The Parent need only demonstrate that the requested services are specially designed to meet the unique needs of the student, supported by such services as are necessary to permit her to benefit from the instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65).
Where sought as relief, a private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs.
(See Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129 and Matrejek, 471 F.
Supp. 2d at 419) A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (See Carter, 510 U.S. at 14)
The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-014 and 01-105) Parents also need not show that the placement provides every special service necessary to maximize the student's potential. (See Frank G., 459 F.3d at 364-65) When determining whether the parents’ unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]])
There is no request for compensatory educational services in this case and in either case, an IHO cannot determine the amount of compensatory education that a student requires unless the record provides him with sufficient “insight about the precise types of education services the student needs to progress.” (Mary McLeod Bethune Day Acad. Pub. Charter Sch., 555 F. Supp. 2d 130, 50 IDELR 134 [D.D.C. 2008] citing Branham v. District of Columbia, 427 F.3d 7, 44 IDELR 149 [D.C. Cir. 2005]) Pertinent findings to enable an IHO to tailor the ultimate award to the student’s unique needs should include the nature and severity of the student’s disability, the student’s specialized educational needs, the link between those needs and the services requested, and the student's current educational abilities. (See Branham v. District of Columbia, 427 F.3d 7, 44 IDELR 149 [D.C. Cir. 2005], see also Mary McLeod Bethune Day Acad. Pub. Charter Sch., 555 F.
Supp. 2d 130, 50 IDELR 134 [D.D.C. 2008]) The Parent has the burden of “propos[ing] a well-articulated plan that reflects the student’s current education abilities and needs and is supported by the record.” (See Phillips v. District of Columbia, 2010 WL 3563068, at *6, 55 IDELR 101 [D.D.C. Sept. 13, 2010] quoting Friendship Edison Pub. Charter Sch. Collegiate
Campus v. Nesbitt (“Nesbitt II”), 583 F. Supp. 2d 169, 172, 51 IDELR 125 [D.D.C. 2008])
State regulations provide in relevant part that "[t]he decision of the impartial hearing officer shall be based solely upon the record of the proceeding before the impartial hearing officer and shall set forth the reasons and the factual basis for the determination. (See 8 NYCRR 200.5{j][5][v])
Shaffer decision of the Supreme Court of the United States issued on November 14, 2005, held as follows:
“We hold no 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, Ill, 42) (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])
The Parent called (7) witness to testify on his behalf, one who testified on direct examination via affidavit. (P-G, P-BB, P-GG, P-RR, P-SS, P-TT & P-UU) The DOE only briefly cross examined the Parent. (T-54-6) In sum, substance and relevant part, the testamentary, documentary and parties’ arguments are as follows:
The DOE argues that the student's areas of weakness “according to her IEPs” were anxiety, depression, inability to engage with her peers, and emotional dysregulation and that Parent has not met her burden of showing that the 1* private school’s educational instruction was designed to meet the needs of the student's educational disability. (D-35 citing D-2 & D-24) The DOE further argues that the Parent did not submit any testimony or any affidavit from a school representative at the 1° private school. (D-35) There is no indication in the 1* private school’s schedule that the student received any counseling to address her socio-emotional needs, nor does her schedule contain any tutoring sessions, or that she progressed thereat. (ld.) Additionally, the DOE argues that the 1* private school’s academic profile shows that it is a small mainstream school in , not a school designed for students with disabilities. (D-35 citing D-33)
The DOE also argues that the aftercare program description indicates that its services were primarily provided to family members and residential staff at the boarding school, not in support of the student’s teachers at the 1° or 2 private schools. (D-[35] citing P-L) The aftercare services also included parent coaching sessions and studentmentor sessions over the phone, all of which are not transition services as defined by law. (Id.) Specifically, the DOE argues:
There are only two situations in which the IDEA requires transition services. "First, the IDEA requires ‘transition services’ not when a child transfers between schools, but when a child transitions from school to postschool activities, including post-secondary education, vocational, education, integrated employment (including supported employment), continuing and adult education, adult services, independent living or community population.” M.L. v. New York City Dept. of Educ. 2015 WL
1439698 (E.D.N.Y. 2015) (citing 20 U.S.C. 1401(34); See NYCRR
200.1 (fit).
In this case, the Student [STUDENT INITIALS] merely transferred schools from [AFTERCARE PROGRAM NAME] Academy to the , and then to the , which as states, is not included under transition services. Id. Further, [STUDENT INITIALS] was not transitioning to post-secondary education or vocational education or any type of employment. (D-35)
What’s more, the student was not diagnosed with autism, but instead with an emotional disturbance, which the Parent's psychologist agreed with and Parent did not submit any evidence that the student had autism, which would make her eligible for transition services under NYCRR 200.1 (ddd). (D-35 citing D-2 & D-19) Additionally, the Parent never signed a binding contract with the aftercare program for services. (D-
35 citing P-X) There is also no payment affidavit submitted into evidence from the 2"° private school for the 2017-2018 school year. (D-35) Regarding the 2” private school, the DOE argues as follows:
There is no indication from the student's class schedule that the student was in a special education program. During the 2018-2019 school year, [STUDENT INITIALS] took Honors English, Advanced Placement U.S. History, Honors Pre-Calculus and Honors physics with the remaining classes largely being non-academic consisting of field hockey, photography and evening study hall. Ex. DD-1. Her grades in those classes were all "A"s and "B"s as she performed well academically. [STUDENT INITIALS] took similar honors and advanced placement classes for her 2017-2018 and 2019-2020 school years. See Ex. HH-1.
Her schedule did not contain any weekly counseling services to address her anxiety, depression or other socio-emotional needs. There are no progress reports or any other documentary evidence to show whether [STUDENT INITIALS] met the socio-emotional goals set forth for her in the school's special education plan. Ex. 0-1. (D-35) Regarding the Parent’s request for payment on an “independent educational evaluation” (“IEE”), the DOE argues that although a copy of the IEE is in evidence, the Parent did not submit any documentary evidence or testimony as to the cost of the evaluation, whether the Parent paid for the evaluation, or that the Parent is financially obligated to pay for the IEE. (D-35 citing P-J) The same is true of the Parent's request for travel expenses to and from the private programs, as the Parent fails to state with specificity which unilateral program the Parent is referring to for travel, as the student attended three different schools during three school years in three different states, and did not present any evidence as to the cost of the transportation, whether the Parent paid for the transportation, and whether the Parent had any financial obligation to pay for the transportation services. (D-35 citing P-A)
The Parent's arguments for reimbursement for the student’s aftercare program are as follows: [AFTERCARE PROGRAM NAME] is an intensive therapeutic residential school that serves girls ages 10-15 who require intensive daily support and full-time care (Ex. SS). [STUDENT NAME] attended [AFTERCARE PROGRAM NAME] during the 2017-2018 school year. After she graduated [AFTERCARE PROGRAM NAME] and was ready for a less restrictive, but still therapeutic environment, she received transitional services from [AFTERCARE PROGRAM NAME]’s Aftercare Program. When students and families are ready to leave [AFTERCARE PROGRAM NAME], the aftercare helps them establish all of the supports they need for their next step, whether it be another residential school or a return home (Id.). [AFTERCARE PROGRAM NAME]’s aftercare team will talk with family members, and faculty and staff at the new school, to establish a plan for the student’s success. Aftercare will also make sure the student is attending an appropriate school, where they will receive appropriate services, and consider if the student has an applicable IEP. Aftercare will utilize all of these strategies to ensure the student’s needs are met at their new school (Id.). [STUDENT NAME] received Aftercare services at both the [18° PRIVATE SCHOOL NAME] and [28° PRIVATE SCHOOL NAME], after she left [AFTERCARE PROGRAM NAME] (Id.). (P-VV)
The Parent further argues that the student benefitted from the aftercare program.
(P-VV citing P-SS) The student's mother testified credibly that the aftercare program caused a “dramatic improvement in [STUDENT'S NAME]’s social and emotional functioning” and helped make the transition to the 1* private school and ultimately the 2TM private school, where she is graduating and going on to college. (P-VV citing P-UU)
The 1st private school was recommended to the Parent by her private school that offers the aftercare program and an educational consultant. (Id.) Crucially, the 1* private school allowed the student to take her emotional support animal with her, which was a vital support for the student, and where she received the support of a program called , where she received daily individualized support from an adult. (Id.)
As for the 2TM private school, the Parent argues that the student received the VV citing P-RR) She has also progressed academically. (Id.)
As for the Parent’s request for travel expenses, the family’s ability to visit the student and work on repairing their relationship is integral to her success, thus entitling them to reimbursement for reasonable travel expenses. (P-VV) As for the Parent’s request for reimbursement of an IEE, the argument is as follows: Without a neuropsychological evaluation the parents would not have been able to have [STUDENT NAME] admitted to a school that addresses her unique special educational needs. But for the failure of the DOE to provide this child with a FAPE, the cost of the evaluation would not have been borne by the parent. (Id.)
The parties stipulated that “a residential” placement is appropriate for the student for the three school years at question. (T-45) The Parent need only demonstrate that the private schools provided educational instruction specially designed to meet the unique needs of the student, supported by such services as are necessary to permit her to benefit from instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65) Taken as a whole, the Parent’s uncontroverted testimonial and documentary evidence annexed hereto supports a finding that the private school placements were appropriate.
For all of the reasons stated above, I do not find that the “aftercare program” qualifies as a “transition service” allowing for the Parent to receive reimbursement.
As for the Parent’s request for travel expenses, 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 school years at issue. What’s more, the student did not need to travel daily as she attended “residential schools” and there is no evidence in the hearing record as to how the student was transported to and from the residential schools, when and if necessary, or as to its cost. (Supra) Accordingly, the hearing record does not support a finding that the district denied the student a FAPE due to the lack of provision for special transportation. However, this does not constitute 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 should consider transportation of the student to the residential school in accordance with the above.
Regarding the Parent's request for reimbursement for an IEE. The law states that if the Parent disagrees with an evaluation obtained by the DOE, the Parent has a right to obtain an IEE at public expense. (See Regulations of the Commissioner of Education § 200.5(g) - “NYCRR § 200.5”) If the Parent request an IEE at public expense, the DOE must, without unnecessary delay, either ensure an IEE 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.
(See 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 IEE as part of a hearing, the cost of the evaluation must be at public expense.
Here, the Parent’s support for an IEE is based upon an assertion that without the same, the student would not have been admitted to a school that addresses her unique special educational needs, and that but for the failure of the DOE to provide the student with a FAPE, the cost of the evaluation would not have been borne by the Parent. (P-
VV) This does not meet the standard cited above for the Parent’s receipt of reimbursement for the student's IEE.
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 directly pay the cost of the student's tuition and receipt of related services at the private schools for the entirety of the student’s 2017-2018, 2018
2019 and 2019-2020 school years thereat; and it is further
ORDERED upon the DOE’s DEFAULT and after INQUEST that the DOE shall also conduct a re-evaluation of the student in all areas of her suspected disabilities, not evaluated within the last two years, for the 2020-2021 school year; and it is further
ORDERED upon the DOE’s DEFAULT 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 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: May 25, 2020
New York, New York Edgar De Leon - |.H.O.
PLEASE TAKE NOTICE
The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. Directions and forms can be found on the Office of State Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview.html
DOCUMENTATION ENTERED INTO RECORD
02. Number/Letter Title Dated For #of Pages 01 Withdrawn / Not Received N/A DOE N/A IEP 05/30/19 DOE 20 pages DOE
08. 03-07 Withdrawn / Not Received N/A DOE N/A Counselor Report 05/29/19 DOE 01 pages DOE
16. 09-15 Withdrawn / Not Received N/A DOE N/A Report Card 11/20/18 DOE 04 pages DOE
19. 17-18 Withdrawn / Not Received N/A DOE N/A Psychological Evaluation 05/22/18 DOE 03 pages DOE
24. 20 Therapist Assessment 05/23/18 DOE 02 21 Discharge Summary 09/08/17 DOE 02 22-23 Withdrawn / Not Received N/A DOE N/A IEP 05/24/18 DOE 25-32 Withdrawn / Not Received N/A DOE Program & Schedule 10/09/17 DOE 05 Invoice undated DOE 01 Closing Statement 03/03/20 DOE 12 DPC 09/03/19 N/A 16 pages DOE
<TKAXSO<CHANDOVOTZS
PARENT 14
LI
Tl Withdrawn / Not Received N/A PARENT N/A
IEP 05/24/18 PARENT 17
Withdrawn / Not Received N/A PARENT N/A Letter from Dr. 05/22/18 PARENT 03
Neuropsychological Evaluation 08/01/18 PARENT 16
Aftercare Agreement 2017-2018 PARENT 04
Aftercare Transition 2017-2018 PARENT 03
Withdrawn / Not Received N/A PARENT N/A Discharge Summary 09/21/17 PARENT 08
PSAT Score undated PARENT 02
Enrollment Contract 2017-2018 PARENT 15
Affidavit of Tuition 10/10/17 PARENT 02
Withdrawn / Not Received N/A PARENT N/A School Description 2017-2018 PARENT 04
Class Schedule 2017-2018 PARENT 01
Letter of Enrollment 10/09/17 PARENT 01
Report Card 2017-2018 PARENT 03
Letter of Acceptance 01/11/18 PARENT 03
Enrollment Contract 2017-2018 PARENT 02
Welcome for School 2017-2018 PARENT 01
Medical Forms 2017-2018 PARENT 05
Enrollment Contract 2018-2019 PARENT 05 BB Affidavit of Tuition 2018-2019 PARENT 01 CC School Description 2018-2019 PARENT 02 DD School Schedule 2018-2019 PARENT 03 EE Attendance Report 2018-2019 PARENT 01 FF Enrollment Contract 2018-2019 PARENT 05 GG Affidavit of Tuition 2019-2020 PARENT 01 HH School Schedule 2019-2020 PARENT 02 T Attendance Report 2019-2020 PARENT 01 JJ Report Card 201902020 PARENT 02 KK Report Card 2019-2020 PARENT 02 LL Report Card 2019-2020 PARENT 02 MM School Ledger 2017-2018 PARENT 02 NN Final Transcript undated PARENT 01 00 Special Ed. Plan 04/05/18 PARENT 09 PP Withdrawn / Not Received N/A PARENT N/A QQ Report Card 2017-2018 PARENT 04 RR Affidavit of 01/30/20 PARENT 04 Ss Affidavit of 02/30/20 PARENT 04 TT Affidavit of 01/30/20 PARENT 05 UU Affidavit of 02/04/20 PARENT 12
Closing Statement 03/03/20 PARENT 13
N/A N/A N/A IHO N/A
Footnotes
[35] citing P-K) The evidence also shows that there are signed contracts for 2TM private school with the parent for the 2018-2019 and 2019-2020 school year, but the 2017-2018 contract in evidence was never signed by the Parent or the second private school. (D- appropriate social and emotional supports thereat, including counseling services. (P-VV citing P-TT) The student has made considerable progress at the 2TM private school, own financial risk. (See Burlington, 471 U.S. at 373-74) However, here, as noted by managing her anxiety while there to where she is now able to address large groups. (P (Supra) It is well settled that parents who choose to unilaterally place their child at a private school without consent or referral by the local educational agency do so at their the DOE, the Parent has not provided evidence that there is an enforceable contract or obligation to pay for the aftercare program. (Supra)