New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION - DOE DEFAULT & INQUEST

Case Number: 189872

NYS Identifier Number N/A

Student’s Name:

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 04/06/20

Actual Record Close Date: 09/21/20

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date Attorney DOE 04/06/20 (T) Attorney PARENT 04/06/20 (T)

Father PARENT 04/06/20 (T) Spec. Ed. Teacher PARENT 04/06/20 (T)

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For # of Pages

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

PARENT EXHIBITS

P-A Demand for Due Process Hearing 10/02/19 17

INDIVIDUALIZED EDUCATION PROGRAM

P-B IEP 04/03/19 14

P-C IEP 03/27/18 16

P-D IEP 03/27/17 17

COMMITTEE ON SPECIAL EDUCATION & SCHOOL CORRESPONDENCE

P-E Prior Written Notice 11/20/19 4 P-F IEE Request Letter 09/30/19 1 P-G Prior Written Notice 05/06/19 4 P-H Mandated Three Year Reevaluation 01/15/19 2 P-I Prior Written Notice 10/31/19 4 P-J Notice to Amend IEP 09/26/18 2

EVALUATIONS & REPORTS

P-K Speech-Language Evaluation 01/02/20 9 P-L Occupational Therapy Evaluation 11/27/19 9 P-M Neuropsychological Evaluation 04/25/19 24

REPORT CARDS & PROGRESS REPORTS

P-N Report Card MP 3 2018-2019 1

ADDITIONAL DOCUMENTATION

P-O Affidavit of , M.D. 03/24/20 1

P-P Affidavit of , M.S. ED., BCBA 04/02/20 4

P-Q The School Conditional 04/01/20 2

P-R Acceptance

Affidavit of 04/02/20 4

P-S Closing Statement 05/14/20 PARENT 29

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

On October 29, 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 Parent of a year old student attending a public 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 April 6, 2020. The Parent opted to submit written closing statement which was received on May 13, 2020. (P-S) 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 attorney(s), the and received at the Department of Education Impartial Hearing Office (

“DOE-IHO”) on or about October 2, 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 2017- 2018, 2018-2019 and 2019-2020 school years. At the impartial hearing, the Parent seeks the following relief:

(a) If the DOE cannot locate an approved school, then the hearing officer should order placement in a non-approved one at public expense as well as door to door transportation to and from the school; and

(b) Independent evaluations, consisting of an occupational therapy ($1,350), a speech-language ($1,350), an assistive technology ($1,850), an FBA/BIP by a BCBA, a transitional/vocational assessment ($1,200), and psychiatric evaluations ($5,000); and

(c) 1:1 individualized program developed by , or another specialized agency; and

(d) Compensatory, or make-up related services, including private social skills and transitional/vocational services at an enhanced rate; and

(e) Payment of attorney fees; and

(f) Any further relief that the Hearing Officer may deem just and proper.

At the impartial hearing, the Parent confirmed that the request for a nonpublic school placement had been resolved and that the student’s placement in the nonpublic school has resulted in the Parent withdrawing the request for an FBA and a BIP. (T-6)

The Parent stated that the student has been accepted to a New York State-approved nonpublic school, conditioned upon the issuance of a “Nickerson Letter” or a “P-3 letter.”

(T-15)

At the hearing, the Parent affirmed that she is seeking payment for a psychiatric in the amount of $5,000 from , (700) hours of tutoring from at the rate of $110 per hour, (60) hours of counseling, also by , at the rate of $150 per hour and placement in the New York State-approved nonpublic school of

. (T-31)

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-7-14 & 21) 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 (3) 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-O, P-P & P-R)

The DOE crossed examined one of the Parent’s witnesses. (T-27) The Parent also submitted (19) documents in evidence. The DOE did not object to the Parent’s documents being received in evidence. (T-13) 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-7-14 & 21) “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 efficiently ve 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 2017-2018, 2018-2019 and 2019-2020 school years and that the Parent may be entitled to the proven relief he has requested.

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.” In the instant case, the DOE’s default constitutes a denial of FAPE for three consecutive school years. As such, I find that the DOE concession that is has failed to afford the student a FAPE constitutes a gross violation of IDEA.

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 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, 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: The first witness for the Parent is a licensed psychiatrist who testified:

I conduct psychiatric evaluations independently and as a contractor for the New York City Department of Education.

The cost for me to conduct an independent psychiatric evaluation is

$5,000. which is the customary rate in the New York City market.

I am available to conduct an independent psychiatric evaluation of this

Student. P-O)

The DOE did not exercise its right to cross examine the psychiatrist. As such, the psychiatrist testimony is uncontroverted.

The Parent’s second witness is a licensed BCBA. (P-P) She testified that she has never met the student but a review of his records indicate that the program she has been provided is wholly inappropriate. (Id.) The student requires (700) hours of tutoring at the cost of $110 per hour, not to exceed $77,000. (Id.)

On cross examination, the witness testified that if the student was awarded hours, baseline assessments would have to be conducted as far as curriculum, to see where she is functioning across academic domain. (T-28) The student could be taught remotely. (Id.) A certified special education teacher and certified psychologist or social worker would provide services to the student. (T-29)

The Parent’s third and final witness is the Director of Education and Admissions at a New York State approved non-public school. (P-R) Her testimony is as follows:

11. I am familiar with the subject of this hearing, I have reviewed all of her education records, comprehensive testing from hospital and her needs in every area are specifically what we support within our curriculum. She has a language disorder, learning disability in reading and math. She is completely appropriate for our program.

20. Following a review of the very detailed neuropsychological and her educational records as well as the application filled out by the family, we believe that we are able to support learning, language, and attentional needs. is an appropriate educational program to support academic and social emotional individual needs.

22. The acceptance of is contingent on her IEP designating placement at a New York State approved non-public school or a P1 letter also known as a Nickerson Letter. We have a spot for her starting on September 9, 2020. (P-R)

The DOE did not exercise its right to cross examine the witness and as such, her testimony is uncontroverted.

In his closing statement, the Parent concedes that on September 30, 2019, he sent the DOE a letter requesting independent occupational therapy and speech-language evaluations. (P-S citing P-F) September 30, 2019 was Monday. Two days later, on Wednesday, October 2, 2019, that Parent filed his DPC requesting IEEs. The

Parent allowed the DOE to complete the occupational therapy and speech-language evaluations pursuant to a partial resolution agreement. (P-S) In sum, substance and relevant part, the Parent sums up his request for “prospective” placement of the student at the New York State approved non-public school for the 2020-2021 school as either an award of “compensatory education” or:

A state-approved nonpublic school is a permissible placement for a school district to make on a student’s IEP. 8 N.Y.C.R.R. § 200.6(j ). In this case, the Parent has already located and secured an appropriate state approved non-public school. As discussed, there is no need to wait to see whether or not the District will develop the appropriate program providing for the non-public school, it can and should just be ordered.

In conclusion, the Hearing Officer has the power granted by the Act and the Courts to provide the relief that is being requested, ordering the District to provide with a non-public school, specifically , currently and for the upcoming school year that is just around the corner, ensuring a timely provision of FAPE. Such an order does not undermine the determinations by the Court that prevent the Hearing Officer to award a particular program now for years to come as more of a tort relief than a determination of ’s current needs. In this matter we know now what ’s current needs are that must be addressed, and we know that the program required to address those needs is available in a non-public school, namely for the upcoming school year, a program within the continuum of public school options, and therefore an award of a non-public school is well within the available remedies to enforce ’s right to FAPE under the IDEA.

In the instant case, the 2019-2020 school year is nearly over, making any order for the District to reconvene and consider a non-public school placement for the 2019-2020 school year futile. In a recent State Review Office (“SRO”) decision, the SRO modified this Impartial Hearing Officer’s decision awarding the cost of a non-public school but limiting it to the school year that had already ended. SRO 19-018 at 21. In SRO 19-018, the SRO acknowledged that it was counterintuitive to issue an award that essentially could not be implemented and which would lead to a student likely being placed back into the very program the Impartial Hearing Officer had already deemed inappropriate.

We are only weeks away from the end of the 2019-2020 school year at the time of this submission. In the Covid-19 centered climate that we currently find ourselves, it is extremely unlikely that a meeting with the appropriate participants will be held in a timely manner and even if it were to be, the District has proven time and time again that they will not follow the recommendations of the Parent’s providers and will not make appropriate recommendations. As such, the Parent implores the Impartial Hearing Officer to award prospective placement at the Community School for this student. (P-S)

The record is sufficient for a finding that the New York State approved non-public school would be an appropriate placement for the student, but the Parent’s request that I do so “prospectively” for the 2020-2021 school year, requires that I speculate that the DOE will not offer the student a FAPE for the upcoming school year. What’s more, as a matter of policy we want the CSEs to do the job they are tasked with as the only entity empowered under the law to make recommendations regarding special education students’ IEPs. Their recommendations may be approved or disapproved of by the Parent, and an IHO may find them appropriate or inappropriate, but they are the CSE’s recommendations to make.

I do not believe that a Hearing Officer should replace a school district’s reasonable calculation with another possibly reasonable calculation; instead, the District’s determinations should actually be accorded deference. (See B.K. v. NYC

Dep’t. of Educ., 884 F.Supp.2d 39, 56 (S.D.N.Y. 2012) (“Deference is paid to the District, not a third party . . . it is not within a Court’s purview to upset the programming recommended by the CSE.”), Lessard v. Wilton-Lyndeborough Coop. Sch. Dist., 592 F.3d 267, 270 (1st Cir. 2010) (the underlying judgment of those having primary responsibility for formulating a student’s IEP is given considerable weight), Z.D. v.

Niskayuna Cent. Sch. Dist., 2009 WL 1748794, *6 (N.D.N.Y. 2009) (deference is given to the school district over the opinion of outside experts).

In the past, the State Review Officer determined that it would be improper to order placements that are not on a student’s IEP as it is improper to circumvent the CSE/IEP process (“To the extent that the parent requested that the district fund the costs of a future placement of the student in a nonpublic school…. it would be inappropriate in this instance to circumvent the statutory process, under which the CSE is tasked with reviewing information about the student's progress under current educational programming and periodically assessing a student's needs, by dictating a particular result, especially in the absence of adequate evidence regarding the annual review of the student's current needs conducted subsequent to the matters under review in this proceeding”.) (See SRO No. 15-077)

Yet, as with most issues, it is important to acknowledge that there are also SRO decisions to the contrary. (See SRO Nos.: 14-077, 11-046, 11-105, 06-017, 07-037, 09-

060 and 08-103. Pursuant to 8 NYCRR § 279.12, the decision of the State Review Officer shall be 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 shall not constitute binding precedent in any judicial action or proceeding or administrative appeal in any forum whatsoever.

To award “prospective” placement of the student at the New York State approved non-public school for the upcoming school, which was not contested in the Parent’s DPC, would further undermine the CSE’s authority and diminish its responsibility. The

DOE should be given the opportunity to offer the student a FAPE for the 2020-2021

school year.

Moreover, regarding the Parent’s request that the undersigned order the DOE to issue a “Nickerson Letter” for the upcoming school year, a “Nickerson letter” is a remedy for a systemic denial of a FAPE that was imposed by the U.S. District Court based upon a class action lawsuit, and this remedy is available to Parents and students who are class members in accordance with the terms of a consent order. (See R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 192, n.5 (2d Cir. 2012)) The Nickerson letter remedy authorizes a Parent to immediately place the student in an appropriate special education program in a State-approved nonpublic school at no cost to the Parent. (See Jose P. v. Ambach, 553 IDELR 298, No. 79 Civ. 270 (E.D.N.Y. Jan. 5, 1982)) The remedy provided by the Jose P. decision is intended to address those situations in which a student has not been evaluated within (30) days or placed within (60) days of referral to the CSE. (Id., R.E., 694 F.3d at 192, n.5, M.S. v. New York City Dep't of Educ., 734 F. Supp. 2d 271, 279 (E.D.N.Y. 2010), SRO Nos.: 03-110, 02-075 and 00-092)

The facts in this case, as detailed above, do not fit the parameters for a “Nickerson Letter.” What’s more, jurisdiction over class action suits and consent orders (and by extension, stipulations containing injunctive relief) issued by the lower federal courts rests with the district courts and circuit courts of appeals. (See 28 U.S.C. §

1292[a][1], Fed. R. Civ. P. 65; see, e.g., Weight Watchers Intern., Inc. v. Luigino's, Inc., 423 F.3d 137, 141-42 [2d Cir. 2005], Wilder v. Bernstein, 49 F.3d 69 [2d Cir. 1995], Pediatric Specialty Care, Inc. v. Arkansas Dept. of Human Services, 364 F.3d 925 [8th Cir. 2004], M.S. v. New York City Dep't of Educ., 734 F. Supp. 2d 271, 279 [E.D.N.Y.

2010] and E.Z.-L. v. New York City Dep't of Educ., 763 F. Supp. 2d 584, 594 [S.D.N.Y.

2011])

No provision of the IDEA or the Education Law confers jurisdiction upon a state educational agency or a local educational agency to sit in review of or resolve disputes over injunctions or consent orders issued by a judicial tribunal. Consequently, neither the IHO, nor the SRO, have jurisdiction to resolve a dispute regarding whether the student is a member of the class in the Jose P. stipulation, the extent to which the DOE may be bound or may have violated the consent order issued by a district court, or the appropriate remedy for the alleged violation of the order. (See R.K., 2011 WL 1131492, at *17 n.29 ; W.T., 716 F. Supp. 2d at 289–90 n.15, see M.S., 734 F. Supp. 2d at 279

[addressing the applicability and parents’ rights to enforce the Jose P. consent order],

Levine v. Greece Cent. School Dist., 2009 WL 261470, *9 [W.D.N.Y. 2009] [noting that the Second Circuit has consistently distinguished systemic violations such as those in

Handberry v. Thompson (436 F.3d 52 [2d Cir. 2006]) and Jose P. to be addressed by the federal courts, from technical questions of how to define and treat individual students' learning disabilities, which are best addressed by administrators], SRO No. 10-

115, R.E., 2011 WL 924895, at *12; E.Z.-L., 763 F. Supp. 2d at 594 and Dean v. School

Dist. of City of Niagara Falls, 615 F. Supp. 2d 63, 70 [W.D.N.Y. 2009])

Therefore, for all of the reasons stated above, I find that an order for non-public school placement, for the 2020-2012 school year that was not contested by the Parent in the DPC, would be an improper form of relief in this case. To the extent that the Parent seeks the issuance of a Nickerson letter to prospectively fund a non-public school placement, I will direct the DOE to convene a CSE meeting to create a new program and placement for the student 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, that Parent’s request for special transportation services is based upon the Parent’s request that the student be placed in a New York State approved non-public school for the 2020-2012 school year, which I decline to order for the reasons stated above. There is no indication in the hearing record as to the student's need for special transportation during the 2020-2021 school year or any verifiable indication that special transportation was previously requested. 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 or receiving private services “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 should consider transportation of the student to the compensatory services ordered below, in accordance with the above.

There is nothing in the record that support a finding that the Parent has not cooperated with the DOE.

NOW therefore, it is hereby

ORDERED upon the DOE’s DEFAULT, Its CONCESSION and after INQUEST that upon its receipt of reasonably satisfactory proof of services having been rendered, the DOE shall either reimburse the Parent and/or directly pay the cost of a psychiatric evaluation in the amount of $5,000 from , (700) hours of tutoring from at the rate of $110 per hour and (60) hours of counseling, also by , at the rate of $150 per hour; and it is further

ORDERED upon the DOE’s DEFAULT, It’s CONCESSION and after INQUEST that the DOE shall also conduct a re-evaluation of the student in all areas of his suspected disabilities, not identified above and not evaluated within the last two years, for the 2020-2021 school year; and it is further

ORDERED upon the DOE’s DEFAULT, It’s CONCESSION 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, It’s CONCESSION 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 28, 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)