New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION - DOE DEFAULT & INQUEST

Case Number: 189606

NYS Identifier Number

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 06/02/20

Actual Record Close Date: 09/14/20

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date Attorney DOE 06/02/20 (T) Attorney PARENT 06/02/20 (T)

Mother PARENT 06/02/20 (T)

Father PARENT 06/02/20 (T)

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

A September 24, 2019 Impartial Hearing Request 6

B May 19, 2020; Corrected Copy:

September 24, 2019 Impartial Hearing Request 4

2018 - 2019 SCHOOL YEAR

C April 9, 2018 2018-2019 Enrollment Contract 3

D June 18, 2018 June 2018 TDN 4

E June 2018 Progress Report 22

F June 27, 2018 DOE Response Letter 1

G August 17, 2018 August 2018 TDN 4

H Undated Summer

Program Description

2018-2019 and 2019-2020 SYS 2

I Undated Summer 2018 2

Schedule

J Undated Summer 2018

Progress Report 7

K Undated

Program Description

2018-2019 and 2019-2020 SYS 7

L Undated 2018-2019 Program 1

Schedule

M November 2018 Progress Report 25 N March 2019 Progress Report 24

O April 17, 2019 2019-2020 Enrollment Contract 2

P June 14, 2019 June 2019 TDN w/

June 2019 Progress Report 24

Q May 29, 2020 Affidavit 4

R Undated Summer 2019

Schedule 1

S Undated Summer 2019 6

Progress Report

T Undated CV 4

U Undated 2019-2020

Program Schedule 1

V January 2020 2019-2020 24

Progress Report

W February 4, 2020 IEE Request Letter 4

X Undated Remote

Learning Information 4

Y Undated Remote 1

Learning Schedule

Z June 1, 2020 Parent Affidavit 5

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

On or about October 4, 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 an year old student attending a private school and the New York City - Department of Education (“DOE”) - , 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 2, 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 Parents through their attorney(s), , and received at the Department of Education Impartial Hearing Office (

“DOE-IHO”) on or about September 24, 2019 and “corrected” on May 19, 2020. 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 2018-2019 and 2019-2020 school years. At the impartial hearing, the Parent seeks the following relief:

(a) A Neuropsychological Evaluation by , an independent provider, of Integrative Neuropsychological Services, located at , at an enhanced rate of $4,500; and

(b) Tuition payment of $77,625.00 for the student’s 2018-2019 school year at the private school, and $71,500.00 for the student’s 2019-2020 school year at the private school; and

(c) Any other relief that the IHO deems appropriate.

At the hearing, the Parents conceded that they served notice about a request for an “independent educational evaluation” (“IEE”), subsequent to the filing of their DPC.

(T-23)

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-7-11 & 24) 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, who testified on direct testimony via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f]. (P-Q & P-Z) The DOE crossed examined both of the Parent’s witnesses. (T-32 & 59-61) The Parent also submitted (26) documents in evidence. The DOE did not object to the Parent’s documents being received in evidence. (T-22) 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. (See 20 U.S.C. 1415(f)(3)(e) & T-7-11 & 24) “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:

2. I have been employed as the Division Head of the , a private special education high school, since 2014. The is a division of the and Institute (hereinafter " "), a non-profit special education school for students from Kindergarten through age

21. is accredited by the New York State Association of Independent Schools.

7. The is a twelve-month high school program for students with moderate to severe developmental or cognitive disabilities; our program provides modified academic instruction, programming, vocational training and integrated related services to students working towards their individual goals. 2019-2020 school year objectives as his most recent school progress report exhibits. See Exhibits P; V.

24. Over the course of the 2018-2019 school year, improved in his ability to participate ingroup learning, his reading comprehension and writing skills as is indicated in his progress reports. Moreover, he improved in the areas of computation, problem solving and applying math concepts to real world situations, such as currency, learning to budget funds. For although required support and strategies to use his own words, he displayed improvement in his self-expression. Equally, increased his social skills, making and keeping friends. Not only did learn about categorizing and organizing, but he was able to read store and aisle signs with minimal assistance. In general, increased his speech and language skills, social goals, and self-regulation aims as his clinicians attested.

25. Thus far, for the 2019-2020 school year, has continued to work on his self-advocacy skills, identifying and expressing feelings of frustration and annoyance, thus articulating his thoughts and internalizations.

Similarly, has learned flexibility in listening to his peers, remaining attentive when his classmates discuss various topics of interest. What's more, has worked on his activities of daily living, focusing on personal hygiene, meal preparation, and travelling independently when utilizing a fixed route. Academically, by way of graphic organizers, daily reviews, and moderate teacher support, is able to make inferences and comprehend the text. Likewise, can now compare numbers using<,>, and= signs, and complete some single digit multiplication problems, improving in his multiplication fluency. learned about his own cultural identify and used google maps to identify various neighborhoods that shared in his heritage, he produced a slideshow, and even used the internet for his formal class project. Overall, I am confident that 's

2019-2020 scholastic aims are appropriate and well suited given his present success. (P-Q)

On cross examination, the witness testified that she has never formally assessed the student or provided him with direct instruction but has formally observed him. (T-32)

At the private school, they group students by age, by their academic functioning levels to make sure that they have a peer group, and then also their social emotional functioning. (T-35) There was no other substantive testimony developed during the witness’ cross examination. (T-35-51)

The Parent’s second and final witness is the student’s mother. (P-Z) She testified as follows:

2. has been diagnosed with Attention Deficit Hyperactivity Disorder, Moderate Intellectual Disability, Speech Impairment and Separation

Anxiety Disorder. ’ disabilities are due to a Genetic Disorder. The

DOE is aware of ’ diagnoses and disabilities.

3. Regrettably, the DOE failed to provide my son with an IEP or school site placement for his 2018-2019 and 2019-2020 school years. My husband and I wrote to the DOE through our attorney for each of the aforementioned school years, notifying the Department of their failure to provide a program and placement. In addition, we noted our willingness to participate in any future meetings, providing further reports for the DOE’s review and consideration. We notified the DOE of our plan to send to the for Learning and Development’s

Academy, and seek tuition funding, should we fail to receive an appropriate plan and school site location. Nonetheless, at no point in time did we receive such information from the DOE for the school years in question.

5. For ’s 2018-2019 and 2019-2020 school years, he continues to attend the Academy, located at receives an intimate classroom ratio, a head teacher, and assistant teacher for his classes, and integrated related services throughout his school day. Also, his program is highly individualized, providing the level of special education support he requires, while enabling him to gain increased awareness and independence, not only of himself, but also of the surrounding community. is not only challenged academically, but also socially and emotionally. For his 2018- 2019 and 2019-2020 school years, has flourished at the , and we are confident that it has and continues to meet our son’s unique special education needs. (P-Z)

The DOE declined to cross examine the student’s mother. (T-51)

The DOE has defaulted resulting in finding that the student has been denied a FAPE. There is nothing in the record indicating that the Parent has not cooperated with the DOE and the testamentary and documentary submitted by the Parent is wholly uncontroverted and supports a finding that the student’s private school is appropriate for him.

If the parent disagrees with an evaluation obtained by the school district, the parent has a right to obtain an independent evaluation at public expense. Regulations of the Commissioner of Education § 200.5(g). (“NYCRR § 200.5”) If the parent request an independent educational evaluation at public expense, the school district must, without unnecessary delay, either ensure an independent evaluation is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. 8 NYCRR § 200.5(g)(iv). Additionally, 34 C.F.R. 300.502(d) and 8 NYCRR 200.5(i)(3)(vi)

provide that if a hearing officer requests an independent educational evaluation as part of a hearing, the cost of the evaluation must be at public expense.

The statute as written contemplates that the Parent will give the DOE fair notice of his or her request, so that the DOE’s option to “either ensure an independent evaluation is provided at public expense or initiate an impartial hearing.” Here, the Parents concedes that they served notice about a request for an “independent educational evaluation” (“IEE”), subsequent to the filing of their DPC. (T-23) (emphasis added) Accordingly, I find that the lack of notice in this case is an equitable considerations that bars the Parents’ request for an IEE. However, I will exercise my discretion and order the DOE to conduct a Neuropsychological Evaluation of the student, which the Parents may or may not agree with, and if they do not agree with the evaluation, the Parents may invoke their right to an IEE at that time.

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 2018-2019 and 2019-2020 school years and 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

$77,625.00 for the student’s tuition at the private school for his 2018-2019 school year thereat, and $71,500.00 for the student’s tuition at the private school for his 2019-2020 school year thereat; and it is further

ORDERED upon the DOE’s DEFAULT and after INQUEST that the DOE shall also conduct a re-evaluation of the student in all areas of his suspected disabilities not evaluated within the last two years, including but not limited to a Neuropsychological Evaluation, 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: September 21, 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)