New York City Department of Education, Impartial Hearing Decision

FINAL ORDER - DOE DEFAULT & INQUEST - PARENT SUBMISSIONS

Case Number: 190003

NYS Identifier Number N/A Student's Name: - To be Edited and Removed by the NYC-DOE

Date of Birth: [‘Confidential”]

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 06/30/20

Actual Record Close Date: 11/02/20

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

[CONFIDENTIAL] DOE Representative DOE 06/30/20 (T)

[CONFIDENTIAL] Attorney PARENT 06/30/20 (T)

[CONFIDENTIAL] Mother PARENT 06/30/20 (T)

DOCUMENTATION ENTERED INTO RECORD

DOE EXHIBITS

1. Number Date Document Number of 1-8-2019 Individualized Education Program (IEP) 25 pages DOE

2. 1-17-2019 Documents Related to IEP -PT 2 pages DOE

3. 1-29-2019 Prior Notice Package for Placement 3 pages DOE

4. 6-3-2019 Teachers Progress Report 2 pages DOE

5. 9-16-2019 Speech Progress Report 2 pages DOE

6. 10-3-2019 OT Progress Report 2 pages DOE

7. 1-17-2020 Individualized Education Program (IEP) 25 pages DOE

8. 1-29-2020 Prior Notice Package for Placement 4 pages DOE

PARENT EXHIBITS

A. Exhibit | Date Description # of Individualized Education Program (IEP) 3/26/2018 26 pages

B. Individualized Education Program (IEP) Amendment 5/22/2018 24 pages

C. Individualized Education Program (IEP) 1/18/2019 25 pages

D. Parent Request for reevaluation 5/16/2019 1 page

E. Jan-Jun 2019 | Correspondence between Parents and District 18 pages

F. Report Card 6/24/2019 2 pages

G. Neuropsychological Evaluation 8/16/2019 15 pages

H. Evaluation Raw Data 9/3/2019 4 pages

I. Letter from regarding Evaluation 9/5/2019 1 page

J. Individualized Education Program (IEP) 1/13/2020 23 pages

K. Second Semester Report Card 1/24/2020 1 page

L. Promotion in Doubt Letter 1/24/2020 1 page

M. Affidavit of Dr. [Confidential] 4/8/2020 3 pages

N. Affidavit of Parent, 6/23/2020 8 pages

O. Affidavit of ABA Therapist, [Confidential| 6/23/2020 5 pages

P. Request for Impartial Hearing 10/7/2019 6 pages

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

On October 8, 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 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 30, 2020. A list of the persons who appeared 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), [CONFIDENTIAL] on or about October 7, 2019. The DPC is carried under New York City (“NYC”) . The Parent herein alleges that the student was denied a “free and appropriate public education” ( “FAPE”) for the 2018-2019 and 2019-2020 school years. At the impartial hearing, the Parent request the following relief: (a) | Anorder that the NYC-DOE conduct a FBA; and (b) An order that the NYC-DOE provide at least (400) hours of compensatory tutoring services at the enhanced rate; and (c) An order that the NYC-DOE shall provide at least (500) hours of compensatory ABA services at the enhanced rate; and (d) An order that he NYC-DOE provide at least (80) hours of compensatory related services each for OT, PT, counseling and SLT at the enhanced rate; and (e) An award of all attorneys’ fees incurred by the Parent in his case; and (f) Any other relief that the IHO deems appropriate.

FINAL ORDER

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 a final “impartial hearing” before this IHO on June 30, 2020, at which time the DOE did not call any witnesses and submitted (8) documents in evidence, defaulted on its statutory burden of production and persuasion, did not object to the Parent’s testamentary and documentary submissions and declined to cross examine the Parent's witnesses (T-6-14); and Whereas the parties agreed to have this decision/order made on the basis of the submission of testamentary evidence pursuant to 8 NYCRR 200.5|j][3][xii][f], (P-M, P-N

& P-O), which the DOE does not oppose and waives its right to challenge via cross examination and the Parent’s unopposed documentary evidence (T-6-14); and Whereas the Parent appeared with her attorney(s), [CONFIDENTIAL], attorney [CONFIDENTIAL] assigned, and the DOE by its representative, [CONFIDENTIAL]; and Whereas the parties thus to agreeing to waive a hearing on the merits; and a proposed “Final Order’ consented to by all the parties based upon the Parent’s uncontroverted testamentary and documentary submissions, having been presented to this IHO on the record as being in the best interest of both parties (T-15-6); 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 submit any testamentary or documentary evidence to meet it burden under the law (T-6-14); 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); and Whereas 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 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 testamentary and documentary submissions that sustains a finding that the Parent has 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-M, P-N & P-O) and the DOE having declined it right to contest that testimony and/or cross examine the Parent’s witnesses (T-13-4); and Whereas the Parent's submissions are completely and unequivocally uncontroverted and need not be repeated herein as they are annexed hereto for the benefit of the reader; and Whereas the DOE has failed to meet its burden under the law and the Parent's submission clearly reflects that the relief sought meets the unique needs of the student, supported by such services as are necessary that permits the student to benefit from that relief. (Gagliardo & Frank G., supra); and Whereas there is no evidence that the Parent has not cooperated with the DOE; and Whereas this IHO having determined that the parties’ consent to the manner of determining this “Final Order’ was made knowingly, intelligently and voluntarily; and Whereas the parties’ oral arguments, discussions, concessions testamentary and documentary evidence and this order having been recorded and annexed hereto; and 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[al], [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 Parent in this case has not requested special education transportation services, but the student's latest IEP dated January 13, 2020 recommends that the student needs special transportation accommodations/services (D

7); and Whereas this does 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, must provide transportation of the student to his private school and tutoring service ordered below in accordance with the above; and Whereas the proposed private tutor has comprehensively evaluated the student and recommends (400) hours of academic tutoring, at the rate of $125 per hour (P-M); and Whereas the student's mother reported in an unsworn affidavit that she enrolled the student in ABA therapy around August 2019 and that he improved with his aggression and sensory needs (P-N); and Whereas in an unsworn affidavit, the Parent reported that the Neuropsychological evaluation, dated July 15-21, 2019 diagnosed the student with Autism Spectrum Disorder; Unspecified Attention Deficit Hyperactivity Disorder; and Adjustment Disorder with disturbance of conduct, and recommended that a FBA be conducted and a Behavioral Intervention Plan (“BIP”) be created for the student and that he also receive SLT, OT, PT, counseling and ABA services as related services (Id.); and Whereas the student’s mother also acknowledged that the student's IEP dated January 10, 2020 mandates that the student receive OT, PT, SLT, and Parent Counseling and Training (Id.); and Whereas the Board-Certified Behavior Analyst (“BCBA”), evaluated the student and recommends that that the student receive at least (15) hours of ABA therapy to make meaningful progress (P-O); and Whereas the testimony and the documentary evidence submitted by the Parent is found credible and completely uncontroverted.

Now, therefore, it is hereby

ORDERED 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 pay the cost of the student’s receipt of (400) hours of tutoring by the private tutor at a rate not to exceed $125.00 per hour, and (15) hours of compensatory ABA services per week for the entirety of the student’ 2019-2020 school year, at a rate not to exceed the reasonable and fair costs for such service in New York City, and for the Parent to receive an independent “FBA’” and a “BIP”, at a rate not to exceed the reasonable and fair costs for such evaluations in New York City; and it is further

ORDERED that the DOE shall conduct evaluations 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 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 2020-2021 school year; and it is further

ORDERED 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 10, 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 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)