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FINDINGS OF FACTS & DECISION - DOE DEFAULT & INQUEST
Case Number: 189146
NYS Identifier Number N/A Student's Name: [“Confidential”]
Date of Birth:
Hearing Requested By: Parent
Dates(s) of Hearing: 12/06/19
Actual Record Close Date: 01/20/20
Hearing Officer: Edgar De Leon
NAMES AND TITLES OF PERSONS WHO APPEARED
Name Title For Date Attorney DOE 12/06/19 Attorney PARENT 12/06/19
Father PARENT 12/06/19
PARENT 12/06/19
On October 11, 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 student attending a private school and the New York City Department of Education (“DOE”) - , regarding the student’s special education program. I was appointed after the recusal of at least one other IHO. After adjournments were granted at the request of and with the consent of the parties, or for good cause, the pendency and impartial hearing was held on December 6, 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) A finding that the DOE deprived the student of a FAPE for the 2019-2020 school year; and (b) An order directing the DOE to make direct payments to the private school for tuition owed and reimbursement to the parent for any monies paid for the 2019-2020 school year; and (c) An order providing the student with transportation to and from the private school during the 2019-2020 school year and reimbursement to the Parents for any expenses incurred for same; and (d) An order directing the DOE to fund independent neuropsychological, speech-language, and sensory occupational therapy evaluations with providers selected by the Parent at market rate; and (e) An order to provide the student with compensatory services with providers selected by the Parent at market rate to be determined by the hearing officer based upon evidence presented of the DOE’s failure to provide a 12-month program and services; and (f) Attorney's fees and expenses; and (g) Any and all other relief that may be warranted based upon the evidence adduced at hearing and as deemed appropriate by the IHO.
At the DPC, the Parent requested an “Order on Pendency” the hearing of which was held 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)(iii) 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 unappealed “Findings of Fact & Decision” (“FOFD”) dated November 13, 2017 and issued by IHO
Ajello in Case No. 167850. (DPC)
THE DOE’S ARGUMENT AGAINST PENDENCY
The DOE argues that the student's private school was changed since the FOFD was issued and that the student’s new school is a unilateral placement for the 2019-2020 school year that is not substantially similar to the school in the FOFD. (T-12-3)
No other substantive argument against pendency was argued by the DOE. (ld.)
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)
Whether a student's educational placement has been maintained under the meaning of the pendency provision depends on whether the educational program is "substantially and materially the same" as the student's educational program for the prior school year. (See Letter to Fisher, 21 IDELR 992 [OSEP 1994] and SRO No. 16-020) The United States Department of Education's Office of Special Education Programs has identified a number of factors that must be considered in determining whether a move from one location to another constitutes a change in educational placement, including: whether the educational program in the student's IEP has been revised; whether the student will be educated with nondisabled peers to the same extent; whether the student will have the same opportunities to participate in nonacademic and extracurricular services; and whether the new placement is the same option on the continuum of alternative placements. (See Letter to Fisher, 21 IDELR 992)
The programs don't have to be exact, only have to be substantially similar. Here, both programs are special education classes with as many as eight or as little as four students and the FOFD recommended six students, which is substantially similar. (T-13
& P-A) Additionally, the DOE concedes that the student was attending the new private school at the time that the Parent invoked his right to “pendency.” (T-15) As such, the new school constitutes the “operative placement and services” at the time that pendency was invoked. (Id.)
At the student's previous school the student had six students in his class for the majority of his enrollment and for the last (9) months he had seven students. (T-25) At the new school, the student is one of eight students in his class. (T-25-6) The student’s academic grouping is similar at both schools. (T-26) At both schools he received occupational therapy and counseling. (T-26-8)
For all intents and purposes, the services between the two school are consistent and the new school is the student’s “operative placement’ at the time the Parent invoked his right to “pendency.” I find that the student is entitled to “pendency” at the new school, retroactive to the date the Parent filed his 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 cross examine that Parent's witnesses and objected only to the Parent’s exhibit “C” being received in evidence. (T-5, 8, 18-38 & 43) In sum, substance and relevant part, the testimony and documentary for and against the DOE’s case is incorporated in the decision below.
THE PARENT’S CASE ON THE MERITS
The Parent called (2) witness to testify on his behalf, one of whom testified on direct testimony via affidavit pursuant to 8 NYCRR 200.5{j][3][xii][f]. (P-J) The Parent also submitted (9) 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 - 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][ii] and 34 C.F.R. § 300.148)
The DOE failed to call any witnesses to testify on its behalf, did not submit any documents in evidence, did not object to the Parent’s documentary submissions with the exception of Parent’s exhibit “C”, did not serve a “Prior Written Notice” in this case did cross examine the Parent’s witnesses. (See 20 U.S.C. 1415(f)(3)[e] & T-5, 8, 18-38 &
43) “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 did not file a responsive pleading in this case.
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 testimonial evidence that it has offered the student a FAPE and did not rebut the presumption in the law that the Parent has cooperated with the agency. 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 but did serve the Parent with “Prior Written Notice’, which provides either a denial of the Parent’s allegations, or some explanation for the agency’s failure to provide a FAPE. (See 20 U.S.C. 1415(f)(3)[e] & D-14)
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, did not object to the Parent’s documentary submissions, with the exception of Parent's exhibit “C” but did cross examine the Parent’s witnesses. (T-5, 8, 18-38 & 43) The credibility of the documentary and testamentary evidence was not controverted by the DOE and the evidence is relevant and material to the issues to be determined. (Id.) I find that the testamentary and documentary evidence on behalf of the Parent credible and persuasive in favor of the Parent.
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 Parents meet their 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 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 Parents may be entitled to the proven relief they have requested.
I now turn to the question of whether the DOE should be required to reimburse and/or pay for the private educational services and relief requested for the student, because the services offered by the DOE were inadequate or inappropriate, and the relief sought and services selected by the Parents are appropriate and equitable considerations support the 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 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]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 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, [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 2016-2017, 2017-2018 and 2018-2019 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 violation in this case does not meet 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)
Here, also as previously noted, the DOE did not controvert the testamentary and documentary evidence submitted by the Parent although it did cross examine the Parent’s witnesses. (T-5, 8, 18-38 & 43) The uncontroverted evidence need not be restated in its entirety here as the transcript of the proceeding and the direct testimony by affidavit of the Parent’s witness is annexed hereto and available for the benefit of the reader. (P-J) In sum, substance and relevant part, the evidence in this case is credible, completely uncontroverted and clearly favors the Parents request for relief. The student’s father testified as to his request for an independent neuropsychological evaluation, a speech language evaluation, and sensory occupational therapy evaluation in May or September of this year. (T-43) The Parent withdrew his request for transportation services and compensatory educational services at the hearing. (T-45)
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 pursuant to the “Findings of Fact & Decision” (“FOFD”) dated November 13, 2017 and issued by IHO Ajello in Case No. 167850 (P-A), at the student's new private school, 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 upon the DOE DEFAULT and after INQUEST 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 tuition at the new private school for the entirety of the student’s 2019-2020 school year thereat and for the student's receipt of an independent neuropsychological, speech-language, and sensory occupational therapy evaluations with providers selected by the Parent at a costs not to exceed the reasonable and fair market rate for such evaluations in New York City; and it is further
ORDERED upon the DOE DEFAULT and after INQUEST that a copy of the “Findings of Fact & Decision” (“FOFD”) dated November 13, 2017 and issued by IHO
Ajello in Case No. 167850 (P-A), shall accompany this decision and order for reference; and it is further
ORDERED upon the DOE DEFAULT and after INQUEST that the DOE shall forthwith conduct a re-evaluation of the student in all areas of his suspected disabilities not covered by the independent evaluations ordered above, for the student’s 2020-2021 school year; and it is further
ORDERED upon the DOE 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 upon the DOE DEFAULT and after INQUEST that any of the other relief sought by the Parent not addressed by this decision is 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 29, 2020
New York, New York Cigar Ce Leon ~ GSA
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
Number/Letter Title Dated For #of Pages
N/A N/A N/A DOE N/A
A FOFD 11/13/17 PARENT 10
B DPC 09/16/19 PARENT 05
C E-Mail 05/10/19 PARENT 02
D Parent Letter 05/28/19 PARENT 02
E 10-Day Notice 08/22/19 PARENT 02
F Program Description undated PARENT 01
G Enrollment Contract 2019-2020 PARENT 06
H Schedule 2019-2020 PARENT 03
| Progress Report 2019-2020 PARENT 05
J Affidavit of 12/04/19 PARENT 06
N/A N/A N/A IHO N/A