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FINAL ORDER - DOE DEFAULT “NO APPEARANCE” & INQUEST - PARENT
SUBMISSIONS
Case Number: 189922
NYS Identifier Number N/A
Student’s Name: - To be
Edited and Removed by the
NYC-DOE
Date of Birth:
District:
Hearing Requested By: Parent
Dates(s) of Hearing: 02/27/20
Actual Record Close Date: 10/30/20
Hearing Officer: Edgar De Leon
NAMES AND TITLES OF PERSONS WHO APPEARED
Name Title For Date
“No Appearance” N/A DOE 06/05/20 Attorney PARENT 06/05/20 (T)
Mother 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) 10-3-19 Impartial Hearing Request with Delivery Confirmation (5 pp.)
(B) 2-27-19 IEP (34 pp.)
(C) 7-17-15 Psychoeducational Evaluation Report (2 pp.)
(D) 8-20-19 Ten-Day Notice with Submission and Delivery Confirmation (4 pp.)
(E) 2019-2020 School Schedule (1 p.)
(F) Program Description (1 p.)
(G) 2019-2020 Attendance Record (1 p.)
(H) 9-5-19 Affidavit of with 2019-2020 Enrollment Agreement (4 pp.)
(I) February 2020 Teacher’s Progress Report (7 pp.)
(J) February 2020 Speech-Language Therapy Progress Report (4 pp.)
(K) February 2020 Occupational Therapy Progress Note (1 p.)
(L) 2-25-20 Art Therapy Progress Note (1 p.)
(M) November 2019 Teacher’s Progress Report (6 pp.)
(N) November 2019 Speech-Language Therapy Progress Report (4 pp.)
(O) November 2019 Occupational Therapy Progress Note (1 p.)
(P) 11-21-19 Art Therapy Progress Note (1 p.)
(Q) Information for the Summer 2019 program (6 pp.)
(R) 4/15/19 Form 1040 of the U.S. Individual Income Tax Return (2 pp.)
(S) August 2019 Progress Notes for Occupation Therapy and Speech Therapy (3 pp.)
(T) 6/3/20 Parent’s Affidavit (3 pp.)
(U) 6/3/20 Affidavit of (12 pp.)
(V) Closing Statement 07/06/20 PARENT 20
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 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 an year old student attending a private school and the New York City - Department of Education (“DOE”) - , regarding the student’s special education program.
After having adjournments granted at the request of and with the consent of the parties, or for good cause, the impartial hearing was held on June 5, 2020. The DOE did not appear at the hearing. (T-5-6) A list of the persons who appeared via affidavits 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’s attorney(s), on or about October 3, 2019, and carried under New York City (“NYC”) . The Parent herein alleges that the student was denied a “free and appropriate public education” (“FAPE”)
for the 2019-2020 school year. At the impartial hearing, the Parent request the following relief:
(a) A finding that the DOE deprived the student of a FAPE under the IDEA, Section 504, and the ADA; and
(b) A finding that the DOE significantly impeded the Parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE and caused a deprivation of educational benefits; and
(c) An order requiring the DOE to make direct payment to the private school for any amounts due for the student’s tuition as well as reimburse the Parent for any tuition payments made to the private school for the 10-month 2019-2020 school year; and
(d) An order that the DOE fund independent neuropsychological, speech-language, occupational therapy and physical therapy evaluations, by providers of the Parent’s choice, at the providers’ customary rates, by issuing payment directly to the providers promptly upon the submission of copies of the evaluations and invoices; and
(e) An order directing the DOE to reimburse the Parent for the cost of the student’s placement at the summer camp for the summer 2019 school session; and
(f) Compensatory relief for the denial of a FAPE in an amount and of a type that the IHO finds to be just and proper; and
(g) Payment of attorney’s fees and expenses.
FINAL ORDER - DOE’S DEFAULT - FAILURE TO APPEAR
The Parents’ DPC having been duly filed 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 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973; and
Notice having been duly given to the DOE; and
The matter having come on for an “impartial hearing” before this IHO on June 5, 2020, and which time the DOE did not appear at the hearing (T-5-6) and the Parent agreed to have this decision/order made on submission of oral arguments and testamentary and documentary evidence; and
The Parent having appeared with her attorney(s), , attorney assigned and having provided testimony via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f], and the DOE having failed to appear at the hearing (T-5-6, P-
H, P-T & P-U); and
The Parent thus to agreeing to conduct an inquest regarding her damages and the relief she seeks, and this “Final Order” consented to by the Parent based upon her testamentary and documentary submissions, having been presented to this IHO on the record as being in the best interest of the Parent; and
Whereas under the IDEA, the burden of persuasion in an administrative hearing is placed upon the party seeking relief. (See Schaffer v. Weast, 546 U.S. at 59-62) On August 15, 2007, the New York State Legislature amended the Education Law to place the burden of proof upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement would continue to have the burden of proof regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended statute took effect for impartial hearings commenced on or after October 14, 2007. (SRO No. 08-
016); and
Whereas the DOE having failed to appear and submit any testamentary or documentary evidence to meet it burden under the law (T-5-6); and
Whereas the DOE failed to appear for the impartial hearing as scheduled, 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) and T-5-6); and
Whereas “Prior Written Notice” meaning 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; and
Whereas silence in a responsive pleading is an admission, or that 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) and additionally, as a general matter, the parties to an impartial hearing are obligated to comply with the reasonable directives of the Impartial Hearing Officer (
“IHO”) regarding the conduct of the impartial hearing. (SRO No. 05-026, 04-103 and 04-
061); and
Whereas an IHO may require the parties to be present at the impartial hearing.
(8 NYCRR 200.5(j)(3)(xiii) and an IHO’s order to the Parent (here the DOE) to attend the impartial hearing in order to be questioned is a reasonable directive that obligates the agency to comply. (SRO No. 09-073); and
Whereas the parties’ appearance is integral to the administration of an impartial hearing and at an impartial hearing, the IHO is authorized to administer oaths and to issue subpoenas in connection with the administrative proceeding (8 NYCRR
200.5[j][3][iv]) and the IHO may ask questions of attorneys or witnesses for the purposes of clarification or completeness of the hearing record. (8 NYCRR
200.5[j][3][vii]); and
Whereas the Parents, school authorities, and their respective attorneys or representatives, have an opportunity to present evidence, compel the attendance of witnesses, and to confront and question all witnesses at the impartial hearing. (8 NYCRR 200.5[j][3][xii]) and the IHO may take direct testimony by affidavit in lieu of in-hearing testimony, provided that the witness giving such testimony shall be made available for cross-examination (8 NYCRR 200.5[j][3][xii][f]) and none of these processes can occur without the participation of the parties; and
Whereas an IHO’s dismissal of a DPC with prejudice, based on the failure of the party to prosecute and comply with reasonable directives issued during the proceeding, has been held appropriate under the circumstances of the case. (SRO No. 04-061); and
Whereas 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]); and
Whereas under New York law, a party’s failure to show up at the scheduled time for trial may entitle the opposing party to a default judgment. (CPLR § 3215(a); and
Whereas here, the DOE did not appear at the hearing or proffer any evidence that it has offered the student a FAPE, this amounting to a tacit concession that the agency did not offer the student a FAPE; and
Whereas although 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; and
Whereas 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. .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. .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. .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); and
Whereas here the DOE did not appear at the hearing, did not present a case-in-chief and made no substantive effort to controvert the testamentary and documentary evidence submitted by the Parent and the credibility of the testamentary and documentary evidence was not rebutted by the agency and the documentary evidence is clearly relevant and material to the issues to be determined; and
Whereas I find the documentary and testamentary evidence submitted by the Parent in this case to be credible, completely uncontroverted and conclusive in this case; and
Whereas 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 the Parent is entitled to the relief she seeks and 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); and
Whereas 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'"]); and
Whereas when, as here, the DOE does not appear and present any case at the hearing, the hearing process essentially becomes an “inquest” as to the appropriate relief; and
Whereas the DOE has conceded liability by failing to present a case and meet its burden under the law because 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]; and
Whereas 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 and the undersigned finds that the DOE failed to adhere to the requirements of the law, has denied the student in this case a FAPE and that the Parent is entitled to the relief she has requested; and
Whereas when turning 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); and
Whereas 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); and
Whereas 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); and
Whereas 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); and
Whereas the 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) and 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"]]); and
Whereas 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]); and
Whereas 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]); and
Whereas 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]); and
Whereas the record in this case is completely uncontroverted by the DOE and supports a finding that the Parent is entitled to the relief sought as indicated below (supra)
and it is unfortunate that the agency forced the Parent in this case to bring the matter to a hearing, when it offered no evidence that it provided the student with a FAPE and then did not challenge the Parents’ assertion regarding the appropriateness of the relief sought; and
Whereas the DOE did not initiate this impartial hearing (DPC); and
Whereas to demonstrate the appropriateness of the relief sought, the Parent need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of the student, supported by such services as are necessary to permit the student to benefit from instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65); and
Whereas in the absence of evidence demonstrating that the Parent has 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 the relief sought by the Parent, including but not limited to tuition reimbursement. (SRO No. 04-049); and
Whereas there being nothing in the record consisting solely of the Parent’s uncontroverted testamentary and documentary submissions that sustains a finding that the Parents have not cooperated with the CSE; and
Whereas the Parent has submitted the testimony of (3) witnesses on direct examination via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f] (P-H, P-T & P-U); and
Whereas the DOE having failed to appear waived its right to contest that testimony and/or cross examine the Parents’ witness by failing to appear at the hearing
(T-5-6); and
Whereas the Parent’s testamentary and documentary submissions are completely and unequivocally uncontroverted and need not be repeated herein in their entirety as they are annexed hereto for the benefit of the reader; and
INDEPENDENT EDUCATIONAL EVALUATION - “IEE”
Whereas if the Parent request an evaluation or disagrees with an evaluation obtained by the school district, the Parent has a right to obtain an IEE at public expense.
(See Regulations of the Commissioner of Education § 200.5(g). (“NYCRR § 200.5”);
and
Whereas if the Parent request an IEE 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.
(See 8 NYCRR § 200.5(g)(iv); and
Whereas, the statute as written contemplates that the school district will be given notice of the Parent’s request for an evaluation or disagreement with the school district’s evaluation so that it may invoke its right to conduct an evaluation, pay for the Parent’s IEE or file a DPC to defend it position to the contrary; and
Whereas additionally, 34 C.F.R. 300.502(d) and 8 NYCRR 200.5(i)(3)(vi) provide that if a hearing officer requests an IEE as part of a hearing, the cost of the evaluation must be at public expense; and
Whereas the record in this case evidence that the the DOE has not evaluated the student since August 2015 and has therefore failed to complete a mandated triennial reevaluation as required by 8 N.Y.C.R.R. §200.4 (b)(4) (P-V citing P-B & P-C); and
Whereas, accordingly, I find that the Parent is entitled to the independent evaluations requested; and I will exercise my discretion under 34 C.F.R. 300.502(d) and 8 NYCRR 200.5(i)(3)(vi) and order the DOE to conduct its own evaluations regarding any areas of suspected disabilities that the student may have; and, which the Parent may subsequently agree or disagree with; and
SUMMER CAMP REQUEST
Whereas the student’s IEP date May 10, 2018 recommends that the student receives services on a 12-month basis and that he will receive the same special education program/services as recommended in the IEP (P-B); and
Whereas the uncontroverted testamentary and documentary evidence indicates that the student’s summer camp was appropriate under the law (P-T, P-S & P-Q); and
SPECIAL TRANSPORTATION SERVICES
Whereas 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]); and
Whereas 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]); and
Whereas 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); and
Whereas 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]); and
Whereas 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]); and
Whereas 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]); and
Whereas 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); and
Whereas in this case, the student’s IEP dated May 10, 2018, recommends that the student receive special education transportation services (P-B); and
Whereas there is no evidence in the hearing record as to how the student was transported to and from the private school each day during the relevant school year, the DOE has nevertheless committed itself and mandated that the student must receive the service; and
Whereas accordingly, the hearing record supports a finding that the DOE denied the student a FAPE due to the lack of provision for special transportation; and
Whereas 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]); and
Whereas if the DOE has not done so already, it may also consider transportation of the student to his private school in accordance with the above; and
Whereas the DOE’s failure to appear at the hearing and its default constitutes a concession of a denial of FAPE and the uncontroverted testamentary and documentary evidence submitted by the Parent and annexed hereto supports the Parent’s request for relief as detailed below.
Now, therefore, it is hereby
ORDERED upon the DOE’s DEFAULT for its FAILURE TO APPEAR and after INQUEST that upon the DOE’s receipt of reasonably satisfactory proof of said services having been rendered, the DOE shall either reimburse the Parent and/or directly pay the cost of the student’s tuition at the private school in the amount of
$120,000 for the entirety of the student’s 2019-2020 school year, $1,500 to the Parent for the student’s summer camp, and for the cost of the student’s receipt of an independent neuropsychological, speech-language evaluation and an occupational therapy evaluations, the evaluations to be conducted at a rate not to exceed the reasonable and fair market rate cost for such evaluations in New York City; and it is further
ORDERED upon the DOE’s DEFAULT for its FAILURE TO APPEAR and after INQUEST that the DOE shall conduct evaluations of the student in all areas of his suspected disabilities, not identified above and not evaluated within the last two years, for his 2021-2022 school year; and it is further
ORDERED upon the DOE’s DEFAULT for its FAILURE TO APPEAR and after INQUEST that the CSE shall forthwith reconvene to produce a new IEP for the student that considers all of the student’s available evaluations and any related information and produce a new IEP for the student’s 2021-2022 school year; and it is further
ORDERED upon the DOE’s DEFAULT for its FAILURE TO APPEAR and after INQUEST that any of the other relief sought by the Parent not addressed by this “Final Order” is found to be either resolved by the parties, withdrawn by the Parent, outside the scope of the IHO’s authority or unsupported by the record.
DATED: November 24, 2020 _______________________
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 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)