New York City Department of Education, Impartial Hearing Decision

FINAL ORDER - DOE DEFAULT & INQUEST

Case Number: 188635

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

Date of Birth:

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 06/05/20

Actual Record Close Date: 07/13/20

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date DOE Representative DOE 06/05/20 (T) Advocate PARENT 06/05/20 (T)

Mother PARENT 06/05/20 (T)

On September 18, 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 June 5, 2020. A list of the persons who appeared at the hearing in person and via affidavits 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 advocate, and received at the Department of Education Impartial Hearing Office (““DOE-IHO”) on or about August 26, 2019. The DPC is carried under New York City (“NYC”) Case No. 188635. The Parent herein alleges that the student was denied a “free and appropriate public education” ( “FAPE”) for the 2019-2020 school year in that the student did not receive his mandated SETSS services. At the impartial hearing, the Parent request the following relief: (a) A finding that the failure of the DOE to deliver the mandated SETSS periods for the 2019-2020 school year constitutes a denial of a FAPE; and (b) An order that the DOE fund the mandated SETSS in for the 2019-2020 school year an enhanced rate.

FINAL ORDER

The Parents’ DPC having been duly filed 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; and Notice having been duly given to the DOE; and The matter having come on for an “impartial hearing” before this IHO on June 5, 2020, and which time the DOE did not object to any of the Parent’s testamentary or documentary submissions (T-7) and the parties agreed to have this decision/order made on submission of oral arguments and testamentary and documentary evidence; and Whereas a hearing on this matter is required only if there is a genuine issue of material fact to be decided. (See Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2TM Cir. 1985)

Whereas the Second Circuit addressed the issue of a hearing officer's authority to grant a summary judgment motion in an IDEA context in J.D. v. Pawlet Sch. Dist., 224 F.3d 60 (2d Cir. 2000); and Whereas after citing numerous examples wherein hearing officers granted summary judgment motions in IDEA cases in other jurisdictions, the Second Circuit stated that “while not dispositive, we find it persuasive that summary disposition procedures are frequently used to decide IDEA claims that involve no disputed issues of fact.” (Id. at 69); and Whereas the Court went on to state that in an IDEA hearing, “where the parties have had a meaningful opportunity to present evidence and the non-moving party is unable to identify any genuine issue of material fact, the use of a summary judgment procedure is entirely proper.” (Id. at 70); and Whereas the Parent having appeared with her advocate, and having provided testimony via affidavit pursuant to 8 NYCRR 200.5{j][3][xii][f] (P-F), and the DOE having failed to cross examine the affiant (T-7-8); and Whereas the Parent thus to agreeing to conduct an inquest regarding her damages and the relief she seeks, and this “Final Order” consented to by the parties based upon the Parent's testamentary and documentary submissions, having been presented to this IHO on the record as being in the best interest of the Parent; and Whereas under the IDEA, the burden of persuasion in an administrative hearing is placed upon the party seeking relief. (See Schaffer v. Weast, 546 U.S. at 59-62) On August 15, 2007, the New York State Legislature amended the Education Law to place the burden of proof upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement would continue to have the burden of proof regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended statute took effect for impartial hearings commenced on or after October 14, 2007. (SRO No. 08-016); and Whereas the DOE having failed to submit any testamentary or documentary evidence to meet it burden under the law (T-8); and Whereas the DOE failed to file and serve an answer or serve a “Prior Written Notice” in this case. (See 20 U.S.C. 1415(f)(3)(e) and Id.); and Whereas “Prior Written Notice’ meaning 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; and Whereas silence in a responsive pleading is an admission, or that 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) and additionally, as a general matter, the parties to an impartial hearing are obligated to comply with the reasonable directives of the Impartial Hearing Officer ( “IHO”) regarding the conduct of the impartial hearing. (SRO No. 05-026, 04-103 and 04-061); and Whereas the party who defaults, here the DOE, 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); and Whereas here, the DOE did not proffer any evidence that it has offered the student a FAPE, and specifically, that it is providing the student with SETSS services and related services as mandated by his IESP dated May 8, 2019 (P-C), this amounting to a tacit concession that the agency did not offer the student a FAPE; and Whereas as noted above, 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 the Parent with the relief sought; and Whereas as noted above, the DOE failed call any witnesses or to present a casein-chief, did not submit any documents in evidence and did not cross examine the Parent’s affiant witness (supra) and the DOE also failed to file and serve an answer or serve a “Prior Written Notice” in this case. (See 20 U.S.C. 1415(f)(3)(e); and Whereas as noted above, “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 and notifies the Parent of the agency’s rational for its position and recommendations; and Whereas as noted above, silence in a responsive pleading is an admission, or that 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); and Whereas I find the documentary and testamentary evidence submitted by the Parent in this case to be credible and completely uncontroverted and conclusive in this case; and Whereas 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 the Parent is entitled to the relief she seeks and 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 aFAPE. (SRO No. 17-033); and Whereas 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’"]); and Whereas 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; and Whereas the DOE has conceded liability by failing to present a case and meet its burden under the law because 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]; and Whereas 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 and 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 is entitled to the relief she has requested; and Whereas when turning 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); and Whereas there is no 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]); and Whereas 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]); and Whereas 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]); and Whereas the record in this case is completely uncontroverted by the DOE and supports a finding that the Parent is entitled to the relief sought as indicated below (Supra)

and it is unfortunate that the agency forced the Parent in this case to bring the matter to a hearing, when it offered no evidence that it provided the student with a FAPE and then did not challenge the Parents’ assertion regarding the appropriateness of the relief sought; and Whereas the DOE did not initiate this impartial hearing (DPC); and Whereas to demonstrate the appropriateness of the relief sought, the Parent need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of the student, supported by such services as are necessary to permit the student to benefit from instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65); and Whereas in the absence of evidence demonstrating that the Parent has failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of the relief sought by the Parent, including but not limited to tuition reimbursement. (SRO No. 04-049); and Whereas there being nothing in the record consisting solely of the Parent’s testamentary and documentary submissions that sustains a finding that the Parents have not cooperated with the CSE; and Whereas the Parent has submitted the testimony of (1) witness on direct examination via affidavit pursuant to 8 NYCRR 200.5{j][3][xii][f] (P-F); and Whereas the DOE having waived its right to contest that testimony and/or cross examine the Parents’ witness by failing to appear at the hearing (supra); and Whereas the Parent's testamentary and documentary submissions are completely and unequivocally uncontroverted and need not be repeated herein in their entirety as they are annexed hereto for the benefit of the reader; and Whereas SETSS services are not defined in State or federal laws or regulations and are not identified on the State continuum of special education services (see SRO No. 16-044); and Whereas a reference to the service as "direct" is in keeping with the language used in State regulations for consultant teacher services (see 8 NYCRR 200.6[d]); and Whereas State regulations distinguish between "direct consultant teacher services," which consist of "specially designed individualized or group instruction provided by a certified special education teacher . . .to_a student with a disability,” from "indirect consultant teacher services,” which consist of "consultation provided by a certified special education teacher . . to regular education teachers" (8 NYCRR

200.1[m] [emphasis added]; see 8 NYCRR 200.6[d]); and Whereas the student's IESP date May 8, 2019 mandates that the student receive SETSS services in and related services (P-C); and Whereas the Parent submitted a one page handwritten “contract” dated August 26, 2019 (the date the Parent filed her instant DPC), wherein she allegedly agrees to pay the private SETSS provider $150 per hour, but no further terms are stated in the document (P-L); and Whereas the Parents DPC alleges that she attempted to locate a suitable

SETSS provider for the 2019-2020 school year, but was “unsuccessful” (DPC); and Whereas the Parent did not submit invoices in evidence from the Parent’s private SETSS provider for services asserted to have been rendered for the 2019-2020 school year; and Whereas the undersigned take notice that the “SETSS Authorization” form regularly provided by the DOE to Parent's with student's in private schools states: “If you need assistance locating a provider, or if you have any questions, please contact the DOE person listed in Section 1 of this form’; and Whereas the Parent is not contesting the sufficiency of the student's IESP dated May 8, 2019 (P-C); and Whereas it is well settled that IHOs and SROs do not have enforcement powers and that enforcement of an order or an agreement by the parties, such as an agreement to the provision of services in an IESP, can properly be sought by filing an administrative complaint with the State Education Department's Office of Vocational and Educational Services for Individuals with Disabilities (VESID) pursuant to applicable federal and state regulations, or in federal court under 42 U.S.C. § 1983. (See 34C.F.R.

§§ 300.151-300.153, 8 NYCRR 200.5[I], A.T. v. New York State Educ. Dep't., 1998 WL 765371, at *7(E.D.N.Y. 1998), Blazejewski v. Bd. of Educ., 560 F. Supp. 701 (W.D.N.Y.

1983), SRO Nos.: 06-130, 04-085 & 99-004), see also A.R. v. New York City Dep't of Educ., 407 F.3d 65, 78 n.13 (2 Cir. 2005) (noting that IHOs have no enforcement mechanism of their own), SRO Nos.: 04-100 & 04-007 (recognizing that enforcement of prior orders of an IHO and/or a SRO are not properly determined by a SRO), SRO No.: 03-071 (holding that petitioner's enforcement remedies include judicial enforcement pursuant to CPLR Article 78, an action in federal court, or VESID administrative complaint procedure), SRO No. 01-086 (holding that petitioner's enforcement request was not properly before a SRO; petitioner's remedy was to seek judicial enforcement of the IHO's tuition reimbursement award), SRO No. 99-4, (holding that respondent's remedy was to seek enforcement in state or federal court, citing Blazejewski, 560 F.

Supp. 701, A.T., 1998 WL 765371) and SRO Nos.: 06-044, 02-086, 04-006, 02-011 & 97-64); and Whereas the Parent asserts that the private SETSS provider request payment of a rate of a $150 an hour, and there is no evidence of any payments having been made by the Parent to the provider, or any request for payment made by the provider throughout the year submitted in evidence; and Whereas no enforceable contract, or enforceable agreement reflecting that the Parent is financially obligated to pay for the services has been received in evidence; and Whereas the one page, one sentence “contract” submitted by the Parent is dated August 26, 2019, the same date the Parent filed her instant DPC, thus having been found to be created for the purpose of this litigation; and Whereas said “contract” is not notarized and the countersigning by the SETSS provider is illegible, thus not sufficiently evidencing that it is binding upon the SETSS provider; and Whereas the record above does not evidence that the Parent has actually incurred any financial obligation to pay the difference between the enhanced rate and the DOE rate; and Whereas the record does not indicate the Parent made a specific undisputable and enforceable arrangement or otherwise entered into an enforceable contract with the provider to pay if the impartial hearing process did not result in an award of the enhanced rate; and Whereas even if the Parent prevailed on the merits of her claim, it would be unclear at this juncture whether or not any relief would be warranted absent evidence that the provider was owed additional compensation based on an enforceable agreement with the Parent or the DOE; and Whereas it is unnecessary to speculate on this case since the evidence in the hearing record does not support a finding that the DOE failed to make available to the student special education programs and services on an equitable basis since there is no evidence that the Parent or the private agency contacted the DOE as commonly instructed in the SETSS Authorization form (see Educ. Law § 3602-c[2][b][1]); and Whereas the DOE has failed to meet its burden under the law and the Parent’s submission clearly reflects that the SETSS services and related services meets the unique needs of the student, supported by such services as are necessary that permits the student to benefit from that relief, as the DOE admits the same in the IESP it created for the student on May 8, 2019 (P-C) (see Gagliardo & Frank G., supra); and Whereas this IHO having determined that the parties’ consent to the manner of determining this “Final Order’ was made knowingly, intelligently and voluntarily (T-8); and Whereas the Parents’ oral arguments, discussions, concessions, testamentary and documentary evidence and this order having been recorded and annexed hereto; NOW therefore, it is hereby

ORDERED on 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 receipt of the SETSS services and related services at the same frequency as detailed on his IESP dated May 8, 2019 (P-C), at the DOE’s established rate for such services, for the entirety of the student’s 2019-2020 school year; and it is further

ORDERED on the DOE’s DEFAULT and after INQUEST that a copy of the student’s IESP dated May 8, 2019 shall accompany this order for reference; and it is further

ORDERED on the DOE’s DEFAULT and after INQUEST that the DOE shall forthwith conduct a re-evaluation of the student in all areas of his suspected disabilities not evaluated within the last two years; and it is further

ORDERED on the DOE’s DEFAULT and after INQUEST 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 on 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 21, 2020

New York, New York Edgar De Leon - |.H.O.

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

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

DPC 09/18/19 PARENT 02

~ACTOTMVOWY

Notice of Appearance 08/26/19 PARENT 01

IESP 05/08/19 PARENT 08

IEP 08/13/18 PARENT 16

Provider's Call List 09/01/19 PARENT 01

Affidavit from Provider 03/01/20 PARENT 01

Teacher Certificate 11/24/14 PARENT 01

Special Education License 12/09/14 PARENT 01

General Education License12/09/14 PARENT 01

Early Childhood License 09/01/13 PARENT 01

Withdrawn / Not Received N/A PARENT N/A Contract 08/26/19 PARENT 02

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