New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION - DOE DEFAULT & INQUEST

Case Number: 189909

NYS Identifier Number N/A Student’s Name: [“Confidential”]

Date of Birth: [“Confidential”]

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 06/05/20

Actual Record Close Date: 10/30/20

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

[CONFIDENTIAL] DOE Representative DOE 06/05/20 (T)

[CONFIDENTIAL] Attorney PARENT 06/05/20 (T)

[CONFIDENTIAL] Mother PARENT 06/05/20 (T) [CONFIDENTIAL] Father PARENT 06/05/20 (T)

[CONFIDENTIAL] School Director PARENT 06/05/20 (T)

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For #of Pages

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

PARENT’S EXHIBITS

A. Exhibit Description Date Pages Notice of Unilateral Placement 8/21/201 2 pages

B. Due Process Complaint 10/3/201 6 pages

C. Auditory Processing Eval 5/19/201 9 pages

D. Parent's Letter to CSE 6/21/201 3 pages

E. Parent's IEE Request 10/2/202 3 pages

F. [PRIVATE SCHOOL NAME] Program description Undate 1 page

G. [PRIVATE SCHOOL NAME] Enrollment Contract 19-20 7 pages

H. [PRIVATE SCHOOL NAME] Progress Report 19-20 19 pages

J. | [PRIVATE SCHOOL NAME] Distance Learning Plan 19-20 2 [PRIVATE SCHOOL NAME] School Affidavit 5/28/202 11 pages

K. Parent Affidavit 5/28/202 6 pages

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

On October 7, 2019, I was appointed the Impartial Hearing Officer (“IHO”) to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act ( “IDEA”), 20 USC § 1415(f)(3), Article 89 of the New York State Education Law, Part 200 and of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973, concerning a dispute between the Parents of a ( ) year old student attending a private school and the New York City - Department of Education (“DOE”) - District: |, regarding the student’s special education program.

After having adjournments granted at the request of and with the consent of the parties, or for good cause, the impartial hearing was held on June 5, 2020. A list of the persons who appeared at the hearing and the documents entered into evidence is annexed hereto.

BACKGROUND

This case was initiated as the result of a written Due Process Complaint (“DPC”)

filed by the student’s Parents through their attorney(s), [CONFIDENTIAL] and received at the Department of Education Impartial Hearing Office (“DOE-IHO”) on or about October 3, 2019. The DPC is carried under New York City (“NYC”) .

Therein, the Parent alleges that the DOE has failed to provide the student with a “free and appropriate public education” (“FAPE”) for the 2019-2020 school year. At the impartial hearing, the Parent seeks the following relief: (a) A finding that the DOE deprived the student of a FAPE for the 2019-2020 school year; and (b) = An order directing the DOE to make direct payment to the private school for tuition owed and reimbursement to the parent for any monies paid for the 2019-2020 school year; and (c) An order for independent neuropsychological and speech-language evaluations with providers selected by the Parent at the providers normal and customary rate; and (d) An order providing the student with transportation to and from his school placement and reimburse the Parents for any costs incurred; and (e) Attorney's fees and expenses; and (f) Any and all other relief that may be warranted based upon the evidence adduced at hearing and as deemed appropriate by the IHO.

The parties executed a “pendency agreement’ that is retroactive to the date the Parents filed their DPC, October 3, 2019 and essentially covered the student’s tuition at the private school for the entirety of the student’s 10-month school year that ran from on or about September 6, 2019 to June 26, 2019. (T-14-5)

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-5-8 & 16) The DOE did not defend “FAPE” and did not challenge the presumption in the law that the Parent has cooperated with the agency.

(Id.) In sum, substance and relevant part, the testamentary and documentary evidence for and against the DOE’s case is incorporated in the decision below.

THE PARENT’S CASE

The Parent called (2) witnesses to testify on her behalf, who testified on direct testimony via affidavit pursuant to 8 NYCRR 200.5{j][3][xii][f]. (P-J & P-K) The DOE crossed examined only one of the Parent’s witnesses. (T-26-8 & P-K) The Parent also submitted (11) documents in evidence. The DOE did not object to the Parent's documents being received in evidence. (T-14) 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 [2" Cir. 2005])

The first step is to determine whether the DOE offered to provide the student a FAPE. (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2° Cir. 2000]) A FAPE is offered to a student when (a) the DOE complies with procedural requirements set forth in IDEA and (b) the IEP developed by the CSE through the procedures set forth in IDEA, is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. V. Rowley, 458 U.S. 176, 206-7 [1982]) The student’s recommended program must also be provided in the least restrictive environment (“LRE”). (20 U.S.C. § 1412(a)(5)(A), 34 C.F.R. § 300.550(b), 8 NYCRR §200.6(a)[1])

The Parent bears the burden of showing that the private school placement selected is appropriate. (SRO Nos.: 95-57, 94-29 & 93-34) The Parents must show that the private school placement offers an educational program that meets the student's special education needs. (Burlington, 471 U.S. at 370 & SRO No. 94-20) The private school need not be approved by the state educational agency to provide instruction to children with disabilities. (Florence County School District Four et. al. v. Carter, 510 U.S. 7 [1993]). It is also not required that the private school employ certified special education teachers or have its own IEP for the student. (SRO No. 94-20)

Finally, the IHO must consider whether equitable considerations favor the Parents’ request for tuition reimbursement. State Review Officer (“SRO”) Decision 06-004 holds: Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties’ compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties’ positions, and like matters” (Wolfe _v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a_ claim of _ tuition reimbursement. (Application of a Child with a Disability, Appeal No. 04-049).

In Burlington, the Court found that Congress intended retroactive reimbursement to Parents by school officials as an available remedy in a proper case under the IDEA.

(Burlington, 471 U.S. at 370-71, Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186 at 192 [2d Cir. 2005]) “Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance” had it offered the student a FAPE. (Burlington, 471 U.S. at 370-71, 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)

The DOE failed to call any witnesses to testify on its behalf, did not submit any documents in evidence, failed to file and serve an answer or serve a “Prior Written Notice” in this case, and did not even make an opening or a closing statement. (See 20 U.S.C. 1415(f)(3)(e) & T-5-8 & 16) “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 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 (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 was not rebutted by the agency and the documentary evidence is clearly relevant and material to the issues to be determined. I find the documentary and testamentary evidence submitted by the Parent in this case to be credible and uncontroverted in this case.

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

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

The DOE has conceded liability by failing to present a case and meet its burden under the law. New York State law has placed the burden of production and persuasion at an impartial hearing on the school district, unlike states which align the burden of production and persuasion consistent with Schaffer v. Weast, 546 U.S. 49, 58-62 [2005]. It is not an IHO's responsibility to craft the DOE’s position regarding the primary issue in the case, for the denial of FAPE. The undersigned finds that the DOE failed to adhere to the requirements of the law, has denied the student in this case a FAPE for the 2019-2020 school year and that the Parent may be entitled to the proven relief he has requested.

I now turn to the question of whether the DOE should be required to reimburse and/or pay for the private educational services and relief requested for the student, because the services offered by the DOE were inadequate or inappropriate, and the relief sought and services selected by the Parents are appropriate and equitable considerations support the Parent's claim. (Burlington, Florence and Cerra, Supra) The Parent need only demonstrate that the requested services are specially designed to meet the unique needs of the student, supported by such services as are necessary to permit her to benefit from the instruction. (See Gagliardo, 489 F.3d at 112; see Frank. G., 459 F.3d at 364-65)

Where sought as relief, a private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs.

(See Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129 and Matrejek, 471 F.

Supp. 2d at 419) A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (See Carter, 510 U.S. at 14)

The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-014 and 01-105) Parents also need not show that the placement provides every special service necessary to maximize the student's potential. (See Frank G., 459 F.3d at 364-65) When determining whether the parents’ unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"])

There is no request for compensatory educational services in this case and in either case, an IHO cannot determine the amount of compensatory education that a student requires unless the record provides him with sufficient “insight about the precise types of education services the student needs to progress.” (Mary McLeod Bethune Day Acad.

Pub. Charter Sch., 555 F. Supp. 2d 130, 50 IDELR 134 [D.D.C. 2008] citing Branham v. District of Columbia, 427 F.3d 7, 44 IDELR 149 [D.C. Cir. 2005]) Pertinent findings to enable an IHO to tailor the ultimate award to the student’s unique needs should include the nature and severity of the student’s disability, the student’s specialized educational needs, the link between those needs and the services requested, and the student's current educational abilities. (See Branham v. District of Columbia, 427 F.3d 7, 44 IDELR 149 [D.C. Cir. 2005], see also Mary McLeod Bethune Day Acad. Pub. Charter Sch., 555 F.

Supp. 2d 130, 50 IDELR 134 [D.D.C. 2008]) The Parent has the burden of “propos[ing] a well-articulated plan that reflects the student’s current education abilities and needs and is supported by the record.” (See Phillips v. District of Columbia, 2010 WL 3563068, at *6, 55 IDELR 101 [D.D.C. Sept. 13, 2010] quoting Friendship Edison Pub. Charter Sch. Collegiate

Campus v. Nesbitt (“Nesbitt II”), 583 F. Supp. 2d 169, 172, 51 IDELR 125 [D.D.C. 2008])

State regulations provide in relevant part that "[t]he decision of the impartial hearing officer shall be based solely upon the record of the proceeding before the impartial hearing officer and shall set forth the reasons and the factual basis for the determination. (See 8 NYCRR 200.5j[5IIv])

Shaffer decision of the Supreme Court of the United States issued on November 14, 2005, held as follows:

“We hold no more than we must to resolve the case at hand: The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. In this case, that party is Brian, as represented by his parents. But the rule applies with equal effect to school districts: If they seek to challenge an IEP, they will in turn bear the burden of persuasion before an ALJ. The judgment of the United States Court of Appeals for the Fourth Circuit is, therefore affirmed.” (Supra, Ill, 42) (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 Parents is the Director of the student's private school. (P-J) She testified as follows:

12. I have known [STUDENT NAME] since September 2018, am familiar with his learning disabilities though my daily interactions with him, team meetings, conversations with teachers and parents and review of school records. [STUDENT NAME] struggles with remaining on task and staying focused through class, task initiation and completion, working independently, reading fluency, writing independently, and learning and applying math skills at a grade level pace.

14. For the 2019-2020 school year, [STUDENT NAME] is enrolled in an 8th grade equivalent classroom at [PRIVATE SCHOOL NAME] and receives instruction in reading, math, writing, history, science, technology, arts and physical education. In addition, he receives speech-language therapy in a whole class setting, in small content area classes and was pulled out as needed.

15. The number of students in [STUDENT NAME] classes range from five to twelve. [STUDENT NAME]’ class placement is based on his needs and determined by teacher observations and informal assessments. He is grouped with students of similar learning profiles. All of his classrooms utilize smartboards as well as have FM systems which help to address his auditory processing needs.

16. [STUDENT NAME]’ advisory classroom has eleven students and one teacher, [TEACHER NAME]. [TEACHER NAME] has a Bachelor's degree in Communication Arts from and a Masters degree in Special Education from . He is certified in New York State to teach Special Education, grades K-12. Advisory meets twice a day and focuses on_ social emotional learning, student advocacy and student/academic skills. The advisory program provides students with social-emotional and academic instruction and support. Character education is the keystone of the advisory program. Advisory classes utilize ( ) from to help students manage their emotions throughout the school day to support their academic success. Vocabulary development is an essential part of the program, and speech and language pathologists focus on targeted emotional and academic language during whole advisory vocabulary lessons. Specific monthly themes are integrated into vocabulary and current events, such as indigenous cultures and veterans. Additionally, student advocacy continues from previous clusters, with a heightened focus on individual learning profiles, understanding and recognizing accommodations and strategies for success, and articulating those needs. Study skills are also explicitly taught advisory. These periods focus on organization for short and long-term assignments, how to effectively complete homework assignments, and how to prepare for exams.

17. [STUDENT NAME] needs one-to-one support in beginning assigned work and staying attentive during class instruction, especially when the lesson is on new and challenging material. Making sure that homework assignments are written down and flagged in his binder with a post-it note, helps [STUDENT NAME] find and independently complete assignments. When learning new material, [STUDENT NAME] benefits from direct instruction and teacher modeling before independently completing work. It is important that previously taught material is consistently referenced and reviewed. [STUDENT NAME] needs individualized support with executive functioning and organization (breaking down assignments, organizing papers, time management, bringing all needed materials to class, etc.). He also needs support throughout the writing process, beginning with modeled brainstorming, outlining, sentence starters, checklists and frequent teacher check ins with specific feedback.

18. Some of the teaching strategies used to support [STUDENT NAME]’ learning are previewing and repetition, visual supports that match auditory information to support processing and attention, chunked assignments and directions to ensure understanding of task, multisensory techniques for the instruction and practice of information.

19. [TEACHER NAME], [STUDENT NAME]’ literature teacher has a Masters in Educational Psychology/Special Education from . She is also certified in New York State to teach K-12 Special Education. [STUDENT NAME)’ literature instruction took place daily in a small group of six other students. The literature group utilizes the Orton-Gillingham approach to help strengthen [STUDENT NAME]’s fluency, build vocabulary and develop critical comprehension skills. [STUDENT NAME] ended the school year in June 2019 on a low Sth grade level and is presently at a high 5th grade level.

21. [TEACHER NAME], [STUDENT NAME]’ math teacher has a Masters in Elementary and Special Education from . She is also certified in New York State to teach 1 - 6 Special Education.

24. [TEACHER NAME], [STUDENT NAME]’ writing teacher has a BS in Arts Administration from . He is closely supervised by [SCHOOL DIRECTOR NAME] (NYS Certification is Special Education, Reading, Building Leader and Superintendent) and [TEACHER NAME] (Master of Arts - General and Special Education, >NYS Certification in Childhood and Special Education) He has received significant professional development here at the school including Orton Gillingham, and Writing Revolution and receives feedback and coaching from the reading department and speech and language department.

29. At [PRIVATE SCHOOL NAME], [STUDENT NAME]’s progress is measured through formal and informal observations and assessments. In order to assess his progress, his teachers engage in classroom discussions and provide [STUDENT NAME] with projects, worksheets, homework, informal assessments and content area tests. Progress reports are produced twice a year in January and June. [STUDENT NAME] mid-term report card contains accurate descriptions of his educational program and progress through December 2019. His June 2020 report card has not been competed yet.

32. [STUDENT NAME]’ remote learning schedule replicates the same number and structure of classes as the in-school schedule. Each school day includes a synchronous advisory class focused on community connectivity, social emotional support, and executive _ function development (i.e., planning, study skills). Reading, writing, and math lessons are taught daily in small groups to support meaningful skill development and academic progress. Attendance and assignments for both synchronous and asynchronous lessons are closely monitored by teachers and families and documented in the student information system.

Additionally, online parent workshops, student social groups, and after school enrichment provide the community-based support to him and his family during this unprecedented time.

34. Based on my professional opinion, experience, interactions and observations of [STUDENT NAME], I believe [PRIVATE SCHOOL NAME]

Is an appropriate placement for him. [STUDENT NAME] requires an explicit multi-sensory, language-based program within a small group setting to make academic, social, and emotional progress. The services and support he receives at [PRIVATE SCHOOL NAME] are designed to meet his needs. (P-J)

There was no substantive testimony developed during the witness's cross examination and her direct testimony remained completely uncontroverted. (T-26-8)

The Parent's second and final witness is the student's mother. (P-K) In sum, substance and relevant part, she testified as follows:

7. [STUDENT NAME] has attended the [PRIVATE SCHOOL NAME] school since September 2016. He is now in the equivalent of an eighthgrade class. He has made educational progress despite his learning challenges due to his placement in small classes of 10-11 students, even smaller group ELA and math instruction, and specialized teachers who utilize direct, explicit research based multisensory teaching methods.

10. On January 31, 2019, | participated in social history and vocational assessment interviews with a DOE social worker. On the same date, we consented to have [STUDENT NAME] evaluated by a DOE school psychologist. His testing lasted about an hour and a half.

11. On July 18, 2019, [STUDENT NAME] father and | attended his IEP meeting. The district representative, [NAME], reviewed the results of the psychoeducational evaluation conducted by the DOE in January 2019.

The person who conducted the evaluation, [NAME], was not present for the meeting. The testing results indicated average cognitive scores and varied greatly from his previous testing scores in the areas of working memory and processing speed. We explained that [STUDENT NAME] requires extended time to process information, needs repeated exposures to material and struggles to meet grade level expectations, particularly in the areas of reading and math fluency. His school administrator shared that [STUDENT NAME] has difficulty focusing on multiple tasks, struggles with timed assessments and needs consistent teacher redirection and prompts to remain on task. We also discussed his difficulties with attention, impulsivity, executive functioning, distractibility and need for a small class. The DOE psychoeducational evaluation did not address these issues, it did not adequately describe [STUDENT NAME] learning needs or how they should be addressed, it did not indicate any specific diagnosis or make any programming recommendations. During the meeting, we also expressed concern about the evaluation being conducted without a class observation, teacher input or adequate review and consideration of [STUDENT NAME] classwork. | subsequently wrote a letter to the district to requesting an independent evaluation but did not receive aresponse. (P-K)

The DOE did not dross examine the Parent and her testimony remains completely uncontroverted.

During voir dire, the witness testified that the private school is a New York State approved non-public school. (T-38)

The DOE’s default is a tacit concession that the student was denied a FAPE for the 2019-2020 school year. (Supra) Based on the record, I find that the private school was an appropriate placement for the student for the 2019-2020 school year in that it is "reasonably calculated to enable the child to receive educational benefits." (See Frank. G., Gagliardo, and Berger, supra)

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 and no verifiable indication that special transportation was previously requested. There is no IEP in evidence indicating that the DOE has agreed to provide the student with special transportation services. Accordingly, the hearing record does supports a finding that the student would be denied a FAPE if there was a lack of provision for special transportation.

However, this does not preclude 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 may consider transportation of the student to the private school in accordance with the above.

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.”

The Parent testified that subsequent to the July 18, 2019 IEP meeting, she wrote a letter to the district to requesting an independent evaluation but did not receive a response. (P-K) No date for when the letter was written was provided and no such letter was entered into evidence. The Parent did submit an undated letter requesting an IEE, with a fax receipt indicating that it was sent on October 2, 2019, one day before she filed her instant DPC on October 3, 2019. (P-E) I do not find this to constitute fair notice for the Parent’s request for an IEE.

Equitable considerations are relevant to fashioning relief under the IDEA. (See Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194, M.C. v. Voluntown Bd. of Educ.., 226 F.3d 60, 68 [2d Cir. 2000], and Carter, 510 U.S. at 16 [noting that "[cJourts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"])

The IDEA also provides that 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, 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], 34 CFR 300.148[d], E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school] and C.L., 744 F.3d at 840 [noting that "[ilmportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA").

Under the facts and circumstances as cited above, I find that the Parent's actions regarding her request for an IEE are unreasonable. I further find that the lack of fair notice in this case is an equitable considerations that bars the Parents’ request for an IEE. However, I will exercise my discretion and order the DOE to conduct evaluations of the student of the student in any areas of his suspected disabilities that have not been evaluated in the last (2) years, which the Parents may or may not agree with, and if they do not agree with the evaluation, the Parents may invoke their right to an IEE at that time.

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 for the cost of the student’s tuition at the private school, for the entirety of the student’s 2019-2020 school year thereat; 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 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: November 3, 2020

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

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)