New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION - DOE DEFAULT & INQUEST

Case Number: 189516

NYS Identifier Number N/A

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

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

Actual Record Close Date: 08/24/20

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date DOE Representative DOE 02/03/20 Advocate PARENT 02/03/20

Mother PARENT 02/03/20 SETSS Provider PARENT 02/03/20

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For # of Pages

01 Authorization for SETSS 09/01/19 DOE 02

02 Authorization for SETSS 10/17/19 DOE 02

PARENT EXHIBITS

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

On October 3, 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 Parents of a year old 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 having adjournments granted at the request of and with the consent of the parties, or for good cause, the impartial hearing was held on February 3, 2020. 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 through her advocate, and received at the Department of Education Impartial Hearing Office (“DOE-IHO”) on or about September 22, 2019. The DPC is carried under New York City (“NYC”) . Therein, the Parent alleges that the DOE has failed to provide the student with a “free and appropriate public education” (“FAPE”) for the 2019-2020 school year by failing to implement the student’s mandated SETSS services. At the impartial hearing, the Parent seeks the following relief:

(a) The Parent hereby seeks enhanced-rate funding for the student's program of SETSS services for the 2019-2020 school year.

The Parent’s DPC also request an “Order on Pendency” based upon the last agreed upon program with the DOE, which is an “Individual Education Service Program”

(“IESP”) dated October 4, 2018, mandating that the student receive SETSS services for

(3) periods weekly.

At the hearing, the Parent altered her request for “pendency” arguing that in the interim between the date of filing her DPC and the hearing, there was a reconvened meeting, at which the student was mandated for an increase to (4) periods of SETSS weekly and now asserts that pendency rest with on the student’s IESP dated October 7, 2019. (T-9) The DOE concedes that there is no dispute over the IESP but argues that there are providers at DOE rate. (T-9-10)

The Parent concedes that we were all at the hearing for her to request a pendency order to enforce implementation, and then go forward in arguing the merits of her case. (T-14) Extending its argument, the DOE states that it did all it could to ensure that the Parent had a list of providers available to choose from, and that the Parent never signed the SETSS authorization forms. (T-16) The Parent counters that the SETSS authorization form is only there when a provider is ready and willing to work at the DOE rates. (T-17) Finally, the DOE stated that it would have no objection to the program of pendency based upon either of the student’s IESPs. (T-19)

THE DOE’S CASE

The DOE did not call any witnesses to testify on its behalf and did not submit any documents in evidence. (T-6 & 25) The DOE did not defend “FAPE” and did not challenge the presumption in the law that the Parent has cooperated with the agency. (Id.) In sum, substance and relevant part, the testamentary and documentary evidence for and against the DOE’s case is incorporated in the decision below.

THE PARENT’S CASE

The Parent called (2) witnesses to testify on her behalf, one of whom testified on direct testimony via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f]. (P-D) The DOE only crossed examined both of the Parent’s witnesses. (T-33 & 45) The Parent also submitted (5) documents in evidence. The DOE did not object to the Parent’s documents being received in evidence. (T-23) In sum, substance and relevant part, 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 [2nd 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 [2nd 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, failed to file and serve an answer or serve a “Prior Written Notice” in this case, and did not even make an opening or a closing statement. (See 20 U.S.C. 1415(f)(3)(e) & T-6 & 25) “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, 4th Edition §§223 & 224, citing Federal Rules of Civil Procedure, Rule 13(a) & Cummings v. Dresher, 18 N.Y.2d 105, 108, 271 N.Y.S.2d 976, 218 N.E.2d 688, 690 [1966])

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

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

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

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

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

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

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

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

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, III, ¶2) (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])

In sum, substance and relevant part, the testamentary and documentary evidence in this case indicates the following:

Federal Rule of Evidence Rule 201, “Judicial Notice of Adjudicative Facts” governs judicial notice of an adjudicative fact only, not a legislative fact and states that a Court may judicially notice a fact that is not subject to reasonable dispute because it: (a)

is generally known within the trial court’s territorial jurisdiction; or (b) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

The court (1) may take judicial notice on its own; or (2) must take judicial notice if a party requests it and the court is supplied with the necessary information. The court may take judicial notice at any stage of the proceeding. A party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard. In a civil case, the court must instruct the jury to accept the noticed fact as conclusive. In a criminal case, the court must instruct the jury that it may or may not accept the noticed fact as conclusive.

In a recent decision in NYC Case No. 187551, the following testimony was received form a SETSS provider on the DOE approved list:

During voir dire, the witness conceded that she does not have a written agreement with the Parent to provide to services for the student, but the DOE has been ordered in the past to pay her via a “P-4” form. (T-21-2)

She is on the vendor list to provide services, the SETSS services, and the Parent contacted her. (T-23) She denied agreeing to any certain fee for her services with the DOE, although she has been on the list for a couple of years. (T-24) Later she conceded that she has agreed to a fee with the DOE of $41 to $42 dollars per hour. (T-24-5) The witness conceded that years ago, she agreed to go on the DOE approved provider list, she agreed to accept $41 or $42 per hour and that the Parent found her through that DOE list. (T-26)

SETSS are not defined in State or federal laws or regulations and are not identified on the State continuum of special education services. (SRO No. 16-044) 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])

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]).

At the hearing, the student’s mother testified that she thinks the student started to receive SETSS services in October of 2019, but that she does not exactly remember.

(T-30) She acknowledged receiving a “P-4 Form” (SETSS Authorization Form) from the DOE. (Id.) She called the numbers and could not find anybody until the private school recommended “ ” that they helped her find someone. (T-31)

On cross examination, the witness testified that she did not make any calls to the DOE requesting help to secure a SETSS provider. (T-34 & P-E) She never spoke to anyone on the call list that she submitted in evidence. (T-35-6 & P-E) However, in relevant part, the call log indicates the following:

917-671-7703 8/22/19 Moved to Florida, USA

718-644-9385 8/28/19 no longer living in the USA

917-815-5419 8/29/19 moved out of the city; name should have been removed from the DOE list

646-496-6406 9/1/19 only early childhood

certification (P-E)

The witness’ testimony does not explain how she received the above noted specific information regarding these providers, if she never spoke to anyone she called and only got “voicemail.” (T-35-6 & P-E) The call indicates that calls were made to (18)

DOE providers from August 20, 2019 to September 2, 2019. (P-E) There was no re-direct examination of the witness. (T-37)

The Parent’s second and final witness is the student’s private SETSS provider.

He testified on direct examination via affidavit as follows:

I, , Director of , hereby verify that is currently providing Special Education Teacher Support Services ("SETSS") for for school year 2019- 2020 at a rate of $135 per Hour. The breakdown of service is SETSS four periods per week. The SETSS services began on September 18, 2019 and will continue through June 30, 2020.

SETSS Services will be billed for hours performed by our providers. The total estimated number of periods of SETSS services to be provided for this student during the 19-20 School Year is 153 periods. The estimated total cost of the services is $20,655. (P-D)

During further direct testimony, the witness testified that the rate he is seeking is

$110 for the hour, prorated for this case because the provider is actually providing the services for (40) minutes, as opposed to (60) minutes. (T-44)

On cross examination, the witness testified that he started to provide services for the student in September of 2019. (T-46) The services are being provided at the student’s private school. (T-48) There was no re-direct examination of the witness. (T-49)

There is no evidence in the hearing record to establish that the Parent has incurred any financial obligation to pay the difference between the enhanced rate and the DOE rate. There is no evidence of a written agreement or an enforceable agreement between the private provider and the Parent to provide to services for the student. The student's mother did not make an enforceable specific arrangement or otherwise enter into a viable written contract or an actual enforceable agreement with the SETSS provider to pay the provider if the impartial hearing process did not result in an award of the enhanced rate. Therefore, 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 agreement with the Parent or the DOE, beyond the established agency rate of

$41 or $42 the agency has agreed to pay.

In any event, it is unnecessary to speculate on this state of affairs 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.

(See Educ. Law § 3602-c[2][b][1]) First there is no evidence that the Parent complied with the DOE’s SETSS Authorization Form instructions that state in relevant part: “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.” (D-1, D-2 & P-E) in fact, the Parent testified that she did not make any calls to the DOE requesting help to secure a SETSS provider. (T-34 & P-E) Secondly, I do not find the Parent’s testimony regarding efforts to secure a DOE provider credible. Her testimony is contradictory in that she did not explain how she received specific information about certain DOE providers, if she never spoke to anyone she called and only got “voicemail.” (T-35-6 & P-E)

The uncontroverted record makes clear that the student was denied a FAPE for the 2019-2020 school year based upon the DOE’s default, and that the parties agree that the student IESP dated October 7, 2019 constitutes “pendency” in this case and mandates that the student receive (4) hours of SETSS period for the 2019-2020 school year.

In order to invoke the pendency provisions of the IDEA, a due process proceeding must be pending. (See SRO No. 07-136) The Parent here commenced this due process proceeding until September 22, 2019, the date that their due process complaint notice was filed. However, the Second Circuit has repeatedly emphasized that a child is entitled to compensatory education when the district fails to implement pendency. (See Toth v. N.Y.C. Dep’t. of Educ., 720 Fed. Appx. at *51 (2d Cir. 2018); see also Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 456 (2d Cir. 2015) (reversing district court award that would “undermine the [IDEA’s] stay-put provision by giving the [school district] an incentive to ignore the stay-put obligation.”), cert. denied, 136 S. Ct.

2022 (2016); Dervishi v. Stamford Bd. of Educ., 653 Fed. Appx. 55, 2016 WL 3548246, at *2 (2d Cir. June 27, 2016)(summary order)(same; remanding to district court to award missed services under pendency); Student X. v. N.Y.C. Dep't. of Educ., 2008 WL 4890440, at *23–26; Burr v. Ambach, 863 F.2d at 1078 (2d Cir.1988) (awarding compensatory relief for delays in hearing process), vacated sub nom. Sobol v. Burr, 492

U.S. 902 (1989), aff’d on recon. sub nom, Burr by Burr v. Sobol, 888 F.2d 258 (2d Cir.

1989); see SRO No. 18-135, at 15, 18 (remanding to IHO to determine compensatory education for denial of FAPE and to calculate compensatory education for failure to implement pendency); SRO 15-123, at 7–8 (reversing and remanding; “The parent asserts that the IHO erred in dismissing the entirety of the parent's claims regarding the 2013-14 school year as moot. I agree… it is generally accepted that a claim for compensatory education or additional services presents a live controversy…”) For the DOE’s failure to implement “pendency” in this case, I will award compensatory service to the student from the beginning on the 2019-2020 school year, to the date that the Parent filed her DPC. Like the Parents in Mackey v. Bd. of Educ., 386 F.3d 158 (2d Cir.

2004), and Bd. of Educ. v. O'Shea, 353 F.Supp.2d 449 (S.D.N.Y. 2005), the Parent’s request for “pendency” in this case was not timely resolved by the DOE. Thus, I find that equitable considerations for a retroactive pendency award are present in this case.

The “pendency” agreed to between the parties as the undisputed fact covers the entirety of the student's 2019-2020 school year which ended on June 26, 2020.

Additionally, current prevailing case law prohibits a district from recouping payments made pursuant to pendency. (See New York City Dep't of Educ. v. S.S., 2010 WL 983719, at *11 [S.D.N.Y. Mar. 17, 2010]). I find that he Parent in this case is entitled to receive under pendency (4) periods of SETSS services weekly for the entirety of the student’s 2019-2020 school year at issue that has since expired. However, the record does not support an award of $110. Accordingly, I find that the Parent is entitled to the relief sought as indicated below.

NOW therefore, it is hereby

ORDERED upon the DOE’s DEFAULT and after INQUEST that the DOE’s default constitutes a denial of FAPE for the student’s 2019-2020 school year and that under “pendency” and on the merits, 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 (4) periods of SETSS per week for the entirety of the student’s 2019-2020 school year, at the DOE rate of either $41 or $42 per hour; 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: August 31, 2020 _____________________________

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

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the PublicSchool 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)