New York City Department of Education, Impartial Hearing Decision

FINAL ORDER - DOE DEFAULT & INQUEST

Case Number: 187815

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

Date of Birth:

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 11/12/19

Actual Record Close Date: 01/10/20

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date DOE Representative DOE 11/12/19 Attorney PARENT 11/12/19

On September 12, 2019, I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1), Part 200 of the Regulations of the Commissioner of Education and Section 504 of the Rehabilitation Act of 1973, concerning a dispute between the Parent of a ( ) year old pre-school student and the New York City Department of Education (“DOE”) - District: |, regarding the student’s special education program. After adjournments were granted at the request of and with the consent of the parties or for cause, the pendency and impartial hearing was held on November 12, 2019. A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.

BACKGROUND

The Parent in this case alleges that the student was denied a “free and appropriate public education” (“FAPE”) for the 2019-2020 school year. At the impartial hearing, the Parent seeks the following relief: (a) An Order on Pendency based on the July 7. 2019 Findings of Fact and Decision of IHO ; and (b) A finding that the student was denied a FAPE for the 2019-2020 school year; and (c) A final order requiring the DOE to fund the private school tuition for the 2019-2020 school year; and (d) A _ provision for door-to-door special education transportation/suitable transportation to and from the private school; and (e) Costs and fees; and (f) Any additional relief such as the IHO determines is appropriate.

In the DPC and at the impartial hearing, the Parent requested an “Order on Pendency” after the “resolution period” had ended.

A pendency hearing held during a resolution period does not commence the impartial hearing timeline. (See NYSED Memo - Questions Relating to Impartial Hearing Procedure, Sept. 2016) As such, a hearing to discuss and determine the pendency placement of the student may occur during a resolution period but such a hearing held at that time does not commence the impartial hearing itself until the resolution period has expired. (Id.) However, an impartial hearing may commence with a “pendency hearing’ if it is the first hearing to take place within 14 days of (a) or (b) of section 200.5(j)(3)(ili) of the regulations, i.e., after the resolution period has expired.

(Id.)

THE PARENT’S PENDENCY REQUEST

The Parent request an “Order on Pendency” based upon the Findings of Facts & Decision of IHO in dated July 7, 2019, further stating the student had of the program identified in that decision and that he was currently attending the private school which is substantially similar. (T-9 & P-C)

THE DOE’S DEFAULT

The DOE did not contest the Parent's request for an “Order on Pendency” based upon the Findings of Facts & Decision of IHO in dated July 7, 2019. (T-1-12)

ORDER ON PENDENCY

Pendency is based on the student's “then-current educational placement,” which the Second Circuit has defined as “(1) ‘typically the placement described in the child's most recently implemented IEP,’ (Johnson v. Special Educ. Hearing Office, 287 F.3d 1176, 1180 [9th Cir. 2002]); (2) ‘the operative placement actually functioning at the time ... when the stay put provision of the IDEA was invoked,’ (Drinker v. Colonial Sch. Dist., 78 F.3d 859, 867 [3d Cir. 1996]); and (3) ‘[the placement at the time of] the previously implemented IEP,’ (Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618, 625 [6th Cir. 1990]); Mackey v. Bd. of Educ., 386 F.3d 158, 163 [2d Cir. 2004])

The then-current educational placement can be superseded by an agreement between the parties during the proceedings to change the student's placement or a final, unappealed decision on the merits by an impartial hearing officer, state review officer, or court. SRO Appeal No. 05-011; see also Bd. of Educ. v. Schutz, 290 F.3d 476, 483-84 (2d Cir. 2002); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 86 F. Supp. 2d 354, 366 (S.D.N.Y. 2000), aff'd, 297 F.3d 195 (2002); Application of a Student with a Disability, Appeal No. 08-107; Letter to Hampden, 49 IDELR 197 (OSEP 2007); Student

Xv. New York City Dep't of Educ., 2008 WL 4890440, at *23 (E.D.N.Y. Oct. 30, 2008) It is indisputable the Findings of Facts & Decision of IHO in dated July 7, 2019 constitute “pendency” in this case, retroactive to the date the Parent filed her instant DPC. I find that the student is entitled to those services under pendency, retroactive to the date the Parent filed her instant DPC.

THE DOE’S CASE ON THE MERITS

The DOE did not call any witnesses to testify on its behalf, did not submit any documents in evidence, did not cross examine the Parent's witness and did not object to the documentary evidence submitted by the Parent. (T-5-6 & 8)

THE PARENT’S CASE ON HE MERITS

The Parent called (1) witness to testify on her behalf who testified on direct examination via affidavit pursuant to 8 NYCRR 200.5{j][3]|[xii][f]. (P-F) The Parent also submitted (6) documents in evidence. In sum, substance and relevant part, the testimony and documentary evidence for and against the Parent’s case is incorporated in the decision below.

FINDINGS OF FACTS & DECISION

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 Parent’s request for relief in this case was not contested by the DOE and the testimonial and documentary evidence submitted on behalf of the Parent was credible and completely uncontroverted. The uncontroverted record need not be repeated here in its entirety as it has been annexed hereto for the benefit of the reader. The record unquestionably supports the Parent's request for relief.

Courts have repeatedly recognized the “broad discretion” that hearing officers and reviewing courts must employ under the IDEA when fashioning equitable relief, and as noted recently, courts have also “repeatedly rejected invitations to restrict the scope of remedial authority provided in Section 1415(i)(2)(C)(iii).”. (See, e.g., Mr. and Mrs. A V. New York City Dep't of Educ., 769 F. Supp. 2d 403, 422-23, 427-30 [S.D.N.Y. 2011] and Forest Grove v. T.A., 129 S.Ct. 2484 [2009])

There is nothing in the record that sustains a finding that the Parent has not cooperated with the CSE. For all of the reasons stated herein, the undersigned finds that the relief sought by the Parent, to the extent indicated below, is appropriate

NOW therefore, it is hereby

ORDERED that pursuant to the pendency provisions under the IDEA, the student shall immediately receive the placement and services provided under the Findings of Facts & Decision of IHO in dated July 7, 2019, retroactive to the date the Parent first invoked her right to “pendency” when she filed her instant DPC, the costs of which are to be paid by the DOE upon the agency’s receipt of reasonably satisfactory proof of said services having been rendered, retroactive to the date the Parent filed his instant DPC; and it is further

ORDERED that based upon the merits of the case, upon its receipt of reasonably satisfactory proof of services having been rendered, the DOE shall reimburse the Parent and/or directly pay the cost of the student’s private school tuition for the entirety of the student’s 2019-2020 school year thereat, as well as the costs of the student’s door-to door special education transportation/suitable transportation to and from the private school; and it is further

ORDERED that the DOE shall forthwith conduct a re-evaluation of the student in all areas of his suspected disabilities for the student's 2020-2021 school year; and it is further

ORDERED that the CSE shall forthwith reconvene and consider all of the student’s evaluations upon their completion and any other relevant information and produce a new IEP for the student's 2020-2021 school year; and it is further

ORDERED 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: January 20, 2020

New York, New York Cigar Ce Leon ~ GSA

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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

Number/Letter Title Dated For #of Pages

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

09/04/19 07

7TDMOWY

IHR PARENT

Neuropsychological Evaluation 12/27/17 PARENT 20

Findings of Facts & Decision 07/07/19 PARENT 09

Private School 08/06/19 PARENT 06

10-Day Notice 08/20/19 PARENT 03

Affidavit of 11/04/19 PARENT 03

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