Impartial Hearing Decision

FINDINGS OF FACTS & DECISION DOE DEFAULT & INQUEST

Case Number: 189775

NYS Identifier Number N/A Student’s Name: .

Date of Birth:

Hearing Requested By: Parent

Dates(s) of Hearing: 11/18/21

Actual Record Close Date: 01/17/22

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date DOE Representative DOE 11/18/21 (T) Attorney PARENT 11/18/21 (T)

Father PARENT 11/18/21 (A) Chair & Teacher PARENT 11/18/21 (A)

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For #of Pages

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

PARENT EXHIBITS

D. 09/26/2019 | Due Process Complaint 8 2-9 08/21/2019 | Ten-Day Notice Letter with Proof of Delivery 3 10-12 07/03/2019 | Neuropsychoeducational Evaluation 18 13-30 Ed.M., Ph.D. | Email from Parent to CSE transmitting 1 Neuropsychological Report Aug 23 2019 08/23/2019 31 pages

E. | Email from CSE acknowledging receipt of 1 Neuropsychological Report 08/23/2019 32 pages

F. | Emails between Parent and Re 2 33-34 09/12/2019 | Scheduling CSE Meeting 08/23/2019

G. | Email from CSE Scheduling Oct 11 2019 IEP 1 Meeting 09/13/2019 35 pages

H. Teacher Report 4 36-39 10/02/2019

I. Report Card 1 AO 2019-20 SY

J. Class Schedule 1 Al 2019-20 SY

K. & Program Description 3 42-44 L 2019-20 SY Distance Learning Plan 10 45-54 M 04/04/2019 with Enrollment 4 55-58 Contract 2019-20 SY 2019-20 SY

N. | Tuition Affidavit 2019-20 SY 1 09/30/2019 59 pages

O. | Tuition Contribution Proof of Payment 2 60-61 P 2019 2019 Tax Returns 19 62-80 04/04/2019

Q. | Affidavit of 10 81-90 11/17/2021

R. | Affidavit of 3 91-93 S Closing Statement 12/02/21 PARENT 11/16/2021 06 pages

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

On October 1, 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), Article 89 of the New York State Education Law and Part 200 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973, concerning a dispute between the Parent of a year old student who attended a private school during the 2019-2020 school year and the New York City Department of Education (“DOE”) - , concerning the student’s special education program. After adjournments were granted at the request of and with the consent of the parties, or for good cause, the impartial hearing was held on November 18, 2021. The Parent submitted a written closing statements that was received on December 2, 2021. (P-S) The DOE did not submit a written closing statement. A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.

BACKGROUND

This case was initiated as the result of a written Due Process Complaint (“DPC”) filed by the student’s Parent through her attorney(s), and received at the New York City - Department of Education Impartial Hearing Office (“DOE”) on or about September 26, 2019. The DPC is carried under New York City (“NYC”) . A request to consolidate this case with NYC was denied on September 22, 2021. The DPC alleges that the DOE has failed to provide the student with 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 “Findings of Fact” in favor of each and every allegation pled herein; and (b) A declaration that the DOE has failed to offer the student a FAPE for the 2019-2020 school year; and (c) A declaration that the private school is an appropriate placement for the school year atissue; and (d) A declaration that the equities favor awarding the Parents full tuition fees for the 2019-2020 school year; and (e) An Order for the direct funding and/or reimbursement to the Parents of all the private school’s tuition fees for the 2019-2020 school year; and (f) An Order reimbursing the Parents for an independent neuropsychological evaluation at the chosen provider's reasonable market rate; and (g) | An Order for appropriate Assistive Technology services; and (n) An Order for door-to-door transportation services in an air-conditioned vehicle with limited (60 minutes) traveling time; and (i) Costs and fees; and (j) Any and such relief as the IHO determines is appropriate.

THE DOE’S CASE

The DOE did not call any witnesses to testify on its case in chief or submit any documents in evidence. (T-5-10 & 13) 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 Parents called (2) witnesses to testify on their behalf, via affidavit pursuant to 8 NYCRR 200.5{j][3][xii][f] and submitted (19) documents into evidence. (P-Q & P-R) The DOE only cross examined one of the Parents’ affiants. (T-21-4 & P-Q) The DOE did not object to the Parents’ documents being received in evidence. (T-10) 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

Two purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C.

§§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected. (See 20 U.S.C. § 1400[d][1][A]-[B] and Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982])

A FAPE is offered to a student when (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. (See Rowley, 458 U.S. at 206-07 and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA.

(See A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003] and Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007])

Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. (See 20 U.S.C. §

141 5[fI[3][EI[ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5{j][4] [ii]; v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008] and Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug.

19, 2008))

The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. (See 20 U.S.C. § 1415/f][3][E][i]). Aschool district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." (See Rowley, 458 U.S. at 203) However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP." (See Walczak v. Florida Union Free Sch. Dist.,^[142] F.3d 119, 130 [2d Cir. 1998] and Rowley, 458 U.S. at 189) The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." (SeeWalczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted] and Grim, 346 F.3d at 379)

Additionally, school districts are not required to "maximize" the potential of students with disabilities. (See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379 and Walczak, 142 F.3d at 130 [citations omitted]; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008] and Perricelli, 2007 WL 465211, at *15) The IEP must be "reasonably calculated to provide some ‘meaningful’ benefit." (See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997] and Rowley, 458 U.S. at 192) The student's recommended program must also be provided in the least restrictive environment ( “LRE”). (See 20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009] and Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008])

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4{[d][2][iii]), and provides for the use of appropriate special education services. (See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; SRO No. 07-018; 06-059; 06-029; 04-046; 02-014; 01-095 and 93-09) Subsequent to its development, an IEP must be properly implemented. (See 8 NYCRR 200.4[e][7] and SRO No. 08-087)

The DOE may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]) 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. (See 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, 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. (See Burlington, 471 U.S. at 370-71; 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during 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], as amended by Ch. 583 of the Laws of 2007) The amended law took effect for impartial hearings commenced on or after October 14, 2007; therefore, it applies to the instant case. (See SRO No. 08-016)

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) 014 and 01-105) Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” (See Gagliardo, 489 F.3d at 112 and M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000])

"Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [dlistrict's placement is appropriate should be considered in determining the appropriateness of the parents’ placement...." (See Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]) Parents 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, "[uJltimately, 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"]]) A "private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child." (See Gagliardo, 489 F.3d at 115 [emphasis in original], citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 188-89)

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65).

The IDEA allows that tuition reimbursement may be reduced or denied if parents do not provide “notice” of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (See 20 U.S.C. §

1412[a][10][C][iii][l] and 34 C.F.R. § 300.148[d][1]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (See Greenland sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]) Although a reduction in reimbursement is discretionary, courts have upheld the denial of tuition reimbursement in cases where it was shown that parents failed to comply with this statutory provision.

(See Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); SRO No. 07-133; 07-120; 07-115; 07-098; 07-079; 07-075; 07-038; 07-032; 06-122; 06-069; 06-057; 06-042; 06-041; 06-035; 05-092 and 04-022)

The final criterion for a reimbursement award is that the parent's claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. (See Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000] and 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." (See 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, the IDEA provides that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, fail to engage with potential placements offered by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. (See 20 U.S.C. § 1412[a][10][C][iii]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181 at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir.

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. (SRO No. 04-049)

DOES’ DEFAULT

The DOE failed to call any witnesses to testify on its case-in-chief or submit any documents in evidence and failed to file and served an answer or “Prior Written Notice” in this case. (See 20 U.S.C. 1415(f)(3)(e) & T-5-10 & 13) “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 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 testamentary 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 a “Prior Written Notice,” which provides 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]) (D-3)

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 and did not controvert the documentary evidence submitted by the Parent. (Supra) The credibility of the documentary evidence submitted by the Parent was not rebutted by the DOE and the documentary evidence is clearly relevant and material to the issues to be determined. I find the documentary and the 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 ofaFAPE. (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 for the 2019-2020 school year and that the Parents may be entitled to the proven relief they have requested.

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])

GROSS VIOLATION OF “FAPE”’

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.” the instant case, the student has been denied a FAPE for only 2019-2020 school year.

(Supra) As such, I find that the DOE default and it tacit concession that is has failed to afford the student a FAPE does not constitute a gross violation of IDEA.

APPROPRIATENESS OF THE RELIEF SOUGHT

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) As noted above, 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"])

COMPENSATORY SERVICES

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{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, Ill, 42) (See_Schaffer v. Weast, 546 U.S. 49, 58-62 [2005] (emphasis added)

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

The DOE’s default herein supports a judgment in favor of the Parents and a finding that the student was denied a FAPE for the 2019-2020 school year. Regarding the appropriateness of the relief sought, the evidence is as follows:

On cross examination, the teacher that testified for the Parents stated that there is a separate application for students to enroll in her program at the private school. (T21) The contract including for her special education program is one contract and there is a different contract for students at the private school who are not in her program. (T22) They follow the support of whatever the teachers are teaching so that they can remediate the student's needs. (T-22) There is no pass or fail grade for her morning or evening sessions at the private school. (T-22-3) There is no requirement at the private school that the teachers in the general education part of the school have any special education credentials. (T-23)

The documentary evidence and witness testimony in this case establishes that the private school with the special education supports are integrated, provides a wholistic special education program designed specifically for students like the one in this case who are cognitively capable students that have learning challenges but are capable of participating in and accessing challenging, general education content with appropriate supports and modifications as needed. (P-S citing P-K & P-Q)

In SRO No. 14-003 it was held that the private school, in conjunction with its special education program, offered the student an individualized program, that the student benefited from, and therefore, the Parent had met his Prong II burden of proof. There is no basis in the uncontroverted record, annexed hereto for the benefit of the reader, to find otherwise in this case.

The teacher that testified for the Parent did not give any testimony in support of the student’s need for assistive technology services, and IEE or special transportation services. (P-Q) Neither does the student’s father’s testimony. (P-R) An independent Neuropsychological Evaluation dated June and July of 2019 was submitted in evidence by the Parent. (P-C) It states: “Consideration should be given to assistive technology as a support for learning needs.” However, it does not indicate what the nature of the assistive technology recommended should be. There was no assistive technology evaluation submitted in evidence. There was also no IEP submitted in evidence that recommends special transportation for the student.

The law does not require that the Parents’ placement be perfect, it only requires that the Parents’ placement be appropriate. (See Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 (3d Cir.1999) (holding that “the test for the parents’ private placement is that it is appropriate, and not that it is perfect’) (P-GG)

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]) (emphasis added) This standard is well below those other standards of review in the law such as “beyond a reasonable doubt’, “clear and convincing

LE] “ LE] “

evidence’, preponderance of the evidence’, “substantial evidence” or even “rational basis.” While the Endrew_ F case speaks of the student receiving more than a “di minimis,” it soeaks of that standard in regards the to DOE, not the Parent, and does not compare it to the law's well-established standards of review referenced above. The record, as accurately summarized by the Parent above and adopted in this decision and order, supports a finding that the private school meets the “reasonable” standard for a finding that it was an appropriate placement for the student’s 2019-2020 school year.

For all of the reason stated above, I find that the Parent’s uncontroverted testamentary and documentary evidence establishes that the private school was an appropriate placement for the student’ 2019-2020 school year. I further find that the denial of FAPE in this case for one school year, does not constitutes a “gross” violation of FAPE.

There is nothing in the record that sustains a finding that the Parent has not cooperated with the CSE. Therefore, I find that equitable considerations do not bar an award of tuition reimbursement to the Parent.

TRANSPORTATION SERVICES

The IDEA specifically includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services. (See 20 U.S.C. § 1401[26], see also 34 CFR 300.34/a], [c][16]) In addition, State law defines special education as “specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability,” and requires school districts to provide disabled students with “suitable transportation to and from special classes or programs.” (See Educ. Law §§ 4401[1], 4402/[4][a], see also Educ. Law § 4401[2] and 8 NYCRR 200.1[ww]) Specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education. (SRO No. 03-053) If a CSE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the district must ensure that the student receives the necessary transportation at public expense. (See Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; see 8 NYCRR 200.1 [ww])

The State Education Department has indicated that a CSE should consider a student's mobility, behavior, communication, physical, and health needs when determining whether or not a student requires transportation as a related service, and that an IEP “must include specific transportation recommendations to address each of the student's needs, as appropriate.” (See “Special Transportation for Students with Disabilities,” VESID Mem. [Mar. 2005]) Other relevant considerations may include the student's age, ability to follow directions, ability to function without special transportation, the distance to be traveled, the nature of the area, and the availability of private or public assistance. (See Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1375 [11th Cir. 1997] and Malehorn v. Hill City Sch. Dist., 987 F. Supp. 772, 775 [D.S.D. 1997])

When reviewing the transportation provisions made for a student by a district, the relevant question is whether the transportation arrangements are appropriate to meet the student's needs. (SRO No. 03-054)

In this case, there is no indication in the hearing record as to the student's need for special transportation during the 2019-2020 school year orany indication that special transportation was previously requested. Additionally, there is no evidence in the hearing record as to how the student received “special transportation” to and from the private school each day during the 2019-2020 school year. Accordingly, the hearing record does not support a finding that the DOE denied the student a FAPE due to the lack of provision for special transportation.

However, this does not constitute a determination regarding the student's entitlement to transportation as available to regular education students or suitable transportation as available to students attending nonpublic schools “for the purpose of receiving services or programs similar to special education programs recommended” by the CSE. (See Educ. Law 3635; 4402[4][[d]) If the DOE has not done so already, it must consider reimbursement to the Parent for transportation and provision of the same for the student to the private school during the 2019-2020 school year and going forward in accordance with Educ. Law 3635; 4402[4][[d].

INDEPENDENT EDUCATION EVALUATIONS

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 record does not evidence that there was a request for an IEE or its reimbursement. Accordingly, said request must be denied as it was never actually requested and there is no legal basis for reimbursement. There is recent Second Circuit case law, and SRO decisions that fall on both sides of the issue, but recently indicate that the Parent cannot received funding for an IEE if the request for the sameis first raised ina DPC. However, said request may still be granted on an “equitable” basis if there are “extraordinary circumstances.”

Pursuant to 8 NYCRR § 279.12, the decisions of the SRO are binding upon the parties and the State Education Department with respect to the provision of special education to the student with a disability involved, but do not constitute binding precedent in any judicial action or proceeding or administrative appeal in any forum whatsoever. Indeed, one can find SRO decisions on both sides of any issue, as the SRO is not compromised of an adjudicative body that speaks with one voice, but instead is comprised of individuals with individual perspectives and opinions on the law.

The recent Second Circuit decisions do set binding precedent. I do not find that the Parent gave the DOE proper and fair notice of its objection to a DOE evaluation, or request for an IEE. The question under the recent Second Circuit case law, is whether the Parent is entitled to reimbursement under “equitable considerations” because “extraordinary circumstances” exist in this case. The Court in People of the State of New_York, Plaintiff, v. J.P., Defendant., 63 Misc. 3d 635 (N.Y. Sup. Ct. 2019), 95 N.Y.S.3d 731, 2019 N.Y. Slip Op. 29059, summarized the various definitions of “extraordinary circumstances” identified by the New York State courts, including the New York State Court of Appeals:

In People v. Andujar, supra, the Court of Appeals when presented with "a discrete statutory construction question regarding” the meaning of the word "equips" in the context of a prosecution for a misdemeanor under the Vehicle and Traffic Law, referenced the dictionary definitions as contained in the Merriam-Webster Collegiate Dictionary [10th edition 1997], The Random House Dictionary of the English Language (2d edition 1987), Webster's Third New International Dictionary (1981) and Black's Law

Dictionary (10th edition 2014) ( id. at pgs. 163-164, 66 N.Y.S.3d 151, 88

N.E.3d 309 ). The method of analysis employed by the New York Court of Appeals in People v. Andujar, supra, is consistent with the terms of McKinney's Statutes, sections 232 and 234 which provide, respectively, "

"[Wjords of ordinary import used in a statute are to be given their usual and commonly understood meaning, unless it is plain from the statute that a different meaning is intended” and "Dictionary definitions may be useful as guide posts in determining the sense with which a word was used in a Statute, but they are not controlling."

In furtherance of an analysis similar to that undertaken by the New York Court of Appeals, and with the objective of ascribing to the statutory term

"extraordinary circumstances" a working definition which will lend itself to an objective application to the case at hand, I have referenced the dictionary definition of that term as defined in certain dictionary resources previously cited and relied upon by the New York Court of Appeals (People v. Andujar, supra at pgs. 163-164, 66 N.Y.S.3d 151, 88 N.E.3d 309 ; see People v. Respress, 140 A.D.3d 1324, 34 N.Y.S.3d 652 [8rd Department 2016], lv denied 28 N.Y.3d 936, 40 N.Y.S.3d 363, 63 N.E.3d 83). The term "extraordinary" is defined in the Merriam-Webster Collegiate Dictionary, 11th Edition, in different ways depending upon the word's intended use. To the extent pertinent to the instant case, the term is defined in the Merriam-Webster Collegiate Dictionary as "7a : going beyond what is usual, regular or customary b : exceptional to a very marked extent" (Merriam-Webster Collegiate Dictionary, 11th Edition, pg. 444). Black's Law Dictionary (10th edition 2014), defines the term "extraordinary circumstances" as "[A] highly unusual set of facts that are not commonly associated with a particular thing or event’. Webster's Third New International Dictionary, also cited in People v. Andujar, supra, as a resource, defines the word "extraordinary" as "1a : more than ordinary: not of the ordinary order or pattern: going beyond what is usual, regular, common or customary : not following the general pattern or norm.” In subdivision b(1) of that definition, Webster's Third New International Dictionary echoes the Merriam-Webster Dictionary in further defining the word "extraordinary" as "exceptional to a very marked extent’ and adds the following language, "most unusual : far from common: very outstanding: very remarkable: rarely equaled: singular, phenomenal: arresting" and under subdivision b (2), Webster's Third New International Dictionary states further, "having little or no precedent and usually totally unexpectea".

The Random House Dictionary of English Language, cited as well, by the New York Court of Appeals in People v. Andujar, supra at pg. 164, 66 N.Y.S.3d 151, 88 N.E.3d 309, defines "extraordinary" as "1. Beyond what is usual, ordinary or established. 2. exceptional in character, degree, etc.; noteworthy; remarkable."

Further, upon undertaking a judicial determination of the meaning of the words or terms of a given statute, as stated in McKinney's Statutes, section 230, "/T]/he words and phrases used in a statute should be given the meaning intended by the lawmakers." To similar effect is section 92 of McKinney's statutes which provides, "/TJ/he primary consideration of the courts in the construction of statutes is to ascertain and give effect to the intention of the Legislature." As concisely stated by the New York Court of Appeals in People v. Finley, 10 N.Y.3d 647, 862 N.Y.S.2d 1, 891 N.E.2d 1165, "/LJegislative intent drives judicial interpretations in matters of statutory construction" (id. at pg. 655, 862 N.Y.S.2d 1, 891 N.E.2d 1165, quoting People v. Santi , 3 N.Y.3d 234, 243, 785 N.Y.S.2d 405, 818 N.E.2d 1146; see People v. Eulo, 63 N.Y.2d 341, 482 N.Y.S.2d 436, 472 N.E.2d 286; see also, People v. Jones, 26 N.Y.3d 730, 27 N.Y.S.3d 431, 47 N.E.3d 710). In pursuit of a determination of the "meaning intended by the lawmakers" McKinney's Statutes section 125 provides, in pertinent part, "/f the interpretation to be attached to a statute is doubtful, the courts may utilize legislative proceedings to ascertain the legislative intent." As stated in People v. Kozlow, 8 N.Y.3d 554, 838 N.Y.S.2d 800, 870 N.E.2d 118, "/TJurning to legislative intent, the purpose of the New York State Legislature in enacting [the "Raise the Age" Statute] may be discerned from the range of concerns expressed by its proponents and sponsors" (id. at pg. 558, 838 N.Y.S.2d 800, 870 N.E.2d 118). In consideration of the volume of cases to be analyzed pursuant to the extraordinary circumstances standard over time, | would not include for purposes of this definition, the additional language in the Webster's 3rd New International Dictionary, that being, "rarely equaled, singular, phenomenal: arresting: or, (2): having little or no precedent and usually totally unexpected." Accordingly, I will use the foregoing definitions of "extraordinary" as defined in the Merriam-Webster Collegiate Dictionary 11th Edition and the Webster's New International Dictionary in conjunction in applying the extraordinary circumstances standard to the case at hand.

As recognized in People v. T.R. (Youth Part Erie County, Carter, J. dated December 21, 2018), the application of this standard must necessarily be on a case-by-case basis.

....On balance and in the final analysis, taking the record before me in its entirety, I do not find the combination of factors reflected in this record to be "exceptional to a very marked extent, most unusual and far from common." Sadly, the lack of a finding of a gross violation of FAPE and the lack of a comprehensive and valid evaluation of the student submitted in evidence for the relevant school years, with the exception of the Neuropsychological Evaluation dated February of 2019, for which the Parent seeks reimbursement, are not extraordinary occurrences in NYC. (P-C) Indeed, these occurrences happen all to often regarding the NYC-DOE.

For all of the reasons stated herein, I find that the Burlington/Carter test is satisfied in favor of the Parent and that she has met her burden under Schaffer to prevail in her request for tuition reimbursement.

NOW therefore, it is hereby

ORDERED that the DOE has denied the student a FAPE for the 2019-2020 school year, 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 the student's tuition, cost, expenses and related services at the private school for the entirety of the student’s 2019-2020 school years thereat; and it is further

ORDERED that the DOE shall also conduct a re-evaluation of the student in all areas of her suspected disabilities, not identified above and not evaluated within the last two years, for the 2022-2023 school year; and it is further

ORDERED 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 2022-2023 school year; and it is further

ORDERED that any of the other relief sought by the Parent not addressed by this decision is found to be either agreed upon by the parties, withdrawn by the Parent, outside the scope of the IHO’s authority or unsupported by the record.

DATED: January 27, 2022

New York, New York Edgar De Leon - IHO

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov. (Rev. 07/09/20)

Footnotes

[142] F.3d at 132) Nonetheless, a school district must provide "an IEP that is ‘likely to produce progress, not regression,’ and . . . affords the student with an opportunity greater than mere ‘trivial advancement.” (See Cerra, 427 F.3d at 195, quoting Walczak, (See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993] and Sch. Comm. of student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02- 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 Aug. 9, 2006] and Voluntown, 226 F.3d at n.9)