New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION - DOE DEFAULT & INQUEST

Case Number: 190214

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

Date of Birth:

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 05/07/20

Actual Record Close Date: 09/07/20

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date Attorney DOE 05/07/20 (T) Attorney PARENT 05/07/20 (T)

Mother PARENT 05/07/20 (T) Neuropsychologist PARENT 05/07/20 (T) Assistant Head PARENT 05/07/20 (T)

DOCUMENTATION ENTERED INTO RECORD

DOE EXHIBITS

EXHIBIT DATE DESCRIPTION NO. OF

NO. PAGES

1 1/08/2020 IEP 18

1/08/2020 Meeting Minutes 4

““DOE Exhibits “1” & “2”, Identified but not Formally Received in Evidence**

PARENT EXHIBITS

PARENT DATE DOCUMENT No. Of Pages

EXHIBIT

A. Impartial Hearing Request [PRIVATE SCHOOL NAME] 10/17/2019 5 pages

B. 2019-2020 Re-Enrollment Contract 04/16/2019 3 pages

C. Ten Day Notice 06/17/2019 1 page

D. [PRIVATE SCHOOL NAME] [PRIVATE SCHOOL NAME] Program Description N/A 5 pages

E. [PRIVATE SCHOOL NAME] 2019 Progress Report N/A 8 pages

F. [PRIVATE SCHOOL NAME] [PRIVATE SCHOOL NAME] Program Description N/A 5 pages

G. [PRIVATE SCHOOL NAME] School Progress Report 2019-2020 01/2020 20 pages

H. [PRIVATE SCHOOL NAME] Remote Learning Information N/A 4 pages

I. Dr. ’s CV N/A 2 pages

J. Dr. ’s Affidavit of Testimony 04/28/2020 3 pages

K. ’s Affidavit of Testimony 04/30/2020 10 pages

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 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. 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 May 7, 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 Parent through her attorney(s), the and received at the Department of Education Impartial Hearing Office (“DOE-IHO”) on or about October 17, 2019. The DPC is carried under New York City (“NYC”)

190214. 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 student was denied a FAPE for the 2019-2020 school year; and (b) A finding that the DOE failed to timely reevaluate the student; and (c) A final order requiring the DOE to: (1) Fund the student’s tuition at the private school for the 2019-2020 12-month school year; and (b) Provide door-to-door special education — transportation/suitable transportation to and from the private school; and (c) Fund $6,000.00 for an independent neuropsychological evaluation to be conducted by Dr.

(d) Costs and fees; and (e) Any additional relief such as the IHO determines is appropriate.

At the hearing, the Parent waived her request for a Cantonese Interpreter. (T-6)

The DOE conceded that the student was certified for special education services for the 2019-2020 school in a 12-month program according to his January 2020 IEP. (T-20)

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-8-12 & 27) 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 both of the Parent’s witnesses. (1-35-44 & 53-69) The Parent also submitted (11) documents in evidence. The DOE did not object to the Parent's documents being received in evidence. (T-25) 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-8-12 & 27) “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 testamentary and documentary evidence was not rebutted by the agency and the testamentary and documentary evidence is clearly relevant and material to the issues to be determined. I find the testamentary and documentary 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 she 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.”) \|n the instant case, the student has been denied FAPE for only (1) school year. (Supra) As such, I find that the DOE default and concession that is has failed to afford the student a FAPE does not constitute a gross violation of IDEA.

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])

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 200.5{j][5][v])

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

“We hold no more than we must to resolve the case at hand: The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. In this case, that party is Brian, as represented by his parents. But the rule applies with equal effect to school districts: If they seek to challenge an IEP, they will in turn bear the burden of persuasion before an ALJ. The judgment of the United States Court of Appeals for the Fourth Circuit is, therefore affirmed.” (Supra, Ill, 42) (See_Schaffer v. Weast, 546 U.S. 49, 58-62 [2005] (emphasis added)

In sum, substance and relevant part, the testamentary and documentary evidence in this case indicates the following: The Parent's first witness is a clinical psychologist. He testified as follows:

1. I am a Clinical Psychologist holding a doctorate degree in Clinical

Psychology. I am licensed in the State of New York as a psychologist (License # ).

4. I have reviewed the following documents related to [STUDENT INITIALS]: (a) A “Comprehensive Psychological Evaluation” (dated October 8, 2013); (b) An Individualized Education Program (dated June 16, 2014); (c) A New York City Department of Education “Educational Evaluation Report” (dated June 13, 2014); (d) [PRIVATE SCHOOL NAME]

Progress Report for the 2018-2019 school year up through March 2019; and (e) [PRIVATE SCHOOL NAME] Progress Report for the 2019-2020 school year up through November 2019.

5. From my review of the aforementioned documents, [STUDENT INITIALS] appears to have a relatively complex profile. In my professional opinion, a comprehensive neuropsychological evaluation is needed for [STUDENT INITIALS] for a variety of reasons including, but not limited to: (a) There may have been a misdiagnosis of Mild Intellectual Impairment. [STUDENT INITIALS] may have been given this diagnosis based upon language delays and not actual intelligence. An intelligence test should be administered in order to confirm or debunk that diagnosis; (b) [STUDENT

INITIALS]’s executive functioning, attention, information processing speed, and visual spatial skills do not appear to have been assessed in the past; it is important that these areas be explored in order to ensure that an appropriate program is provided to [STUDENT INITIALS] as he gets older; (c) Updated achievement tests regarding [STUDENT INITIALS]’s current reading, writing, and math skills should be administered in order to rule out any learning disabilities; (d) [STUDENT INITIALS]’s language skills ought to be measured, as it is unclear what his current levels are in that area.; (e) The Autism Diagnostic Observation Schedule (“ADOS”) - the standard measure for diagnosing someone with Autism Spectrum Disorder (“ASD”) was not previously administered. The ADOS should be administered to [STUDENT INITIALS] to confirm his ASD diagnosis.

7. The rate that | charge for neuropsychological evaluations of students with profiles such as [STUDENT INITIALS] is $6,000, which is well within the normal market rate in New York City and, in fact, substantially less than what many similarly qualified evaluators charge. Namely, many similarly qualified evaluators in New York City charge up to (and on some occasions more than) $7,000 to conduct neuropsychological evaluations of students with profiles that are similar to [STUDENT INITIALS]’s.

8. The New York City Department of Education has been ordered to pay me $6,000 in the past for neuropsychological evaluations of students with profiles that are similar in complexity to [STUDENT INITIALS]. (P-J)

On cross examination, the witness conceded that he received assistance in drafting his affidavit. (T-36) He has not observed the student in a classroom setting. (T38) The student has not been evaluated for almost seven years and needs to have his overall cognitive functioning with regards to executive functioning, attention, information and processing speed assessed. (T-39) He estimates that it would take at least (10) to (12) over probably three days, to assess the student depending on his attention span and language abilities. (T-41) Then it would take another (10) to (12) hours to write it up, to score everything up and evaluate the findings, and go over the findings with the Parent. (Id.) There was no substantive testimony developed during the witness’ reredirect examination. (T-44-5) The was no re-cross examination of the witness. (T-45-6)

The Parent’s second and final witness is the Assistant Head at the private school.

He testified as follows:

1. I am currently employed as the Assistant Division Head of [PRIVATE SCHOOL NAME] , located at ,

[PRIVATE SCHOOL NAME] is a

division of the [PRIVATE SCHOOL NAME] (

“IPRIVATE SCHOOL NAME]”), a non-profit, independent special education school serving students ages 5-21. [PRIVATE SCHOOL NAME] is accredited by the New York State Association of Independent Schools. | submit this affidavit in the above-referenced proceeding regarding [STUDENT INITIALS], a student at [PRIVATE SCHOOL NAME] , based on my personal knowledge of the matters set forth herein.

8. [PRIVATE SCHOOL NAME] is an independent school for students with a broad range of developmental disabilities. The students have a variety of DOE disability classifications and typically have language-based learning disabilities, academic deficits, and/or deficits in adaptive daily living skills.

21. I am familiar with [STUDENT INITIALS] He has attended consistently since the 2014-2015 school year and is a student in one of our middle school cohorts for the current, 2019-2020 school year. | understand that [STUDENT INITIALS] made meaningful progress in each of the past five school years in which he attended [PRIVATE SCHOOL NAME], and I am happy to report (as explained in further detail below) that he has continued to make a great deal of progress during the current, 2019-2020 school year.

23. [STUDENT INITIALS] started the 12-month 2019-2020 school year by attending summer sessions at [PRIVATE SCHOOL NAME]

The summer program focused on improving [STUDENT INITIALS]’s reading comprehension, comparative thinking, speaking, and presentation skills. Math instruction focused on practicing skills learned during the 2018-2019 school year and previewing skills he would learn during the remaining portion of the 2019-2020 school year. Math instruction involved lots of repetition, use of manipulatives, scaffolded worksheets, and small group instruction. [STUDENT INITIALS]’s summer program also featured an adaptive physical education program, art therapy, and music.

24. During the summer sessions, [STUDENT INITIALS] received speech-language therapy three times/week. [STUDENT INITIALS] received group counseling once per week and also attended once per week in classroom centers with the school psychologist and occupational therapist. [STUDENT INITIALS] received occupational therapy through classroom “OT” centers and through daily sensory activities integrated into the classroom.

25. [STUDENT INITIALS] is in the eighth grade this year and for all academic classes he is in a class of 13 students, with one teacher, one assistant teacher, and three paraprofessionals (13:1:1:3).

26. [STUDENT INITIALS] participates in a middle school Technology program two days per week. The Technology program is taught by a technology integration specialist, with assistance and support from paraprofessionals from each middle school cohort. The students work on different skills throughout the school year such as how to use technology in a constructive, safe, and independent manner, and through their use of technology, developing their vocabulary, concept comprehension, sequential memory, speech, school and community citizenship, social awareness, and digital creativity.

27. [STUDENT INITIALS] participates in the middle school chorus twice per week. The middle school chorus is led by the head teacher. The students work on different skills throughout the school year such as participating in “call-and-response” using body percussion, fostering confidence and assertiveness, breath control and vocal range.

28. [STUDENT INITIALS] participates in a physical education program, Kids in the Game, at [PRIVATE SCHOOL NAME] . In this program, students work on different skills throughout the school year such as physical fitness, locomotor skills, non-manipulative and manipulative skills, spatial awareness, teamwork and sportsmanship.

29. [STUDENT INITIALS] participates in speech and language therapy three times per week in small groups. Two times per week [STUDENT INITIALS]’s speech and language therapy is provided at a speech and language center within his Humanities class and one time per week his speech and language therapy is provided in a_ pull-out session. [STUDENT INITIALS]’s speech and language therapy is provided by a speech-language pathologist.

30. [STUDENT INITIALS] participates in counseling one time per week in a small group. In counseling, [STUDENT INITIALS] works with his counselor on different skills throughout the year including building emotional vocabulary, building friendship skills, and ultimately developing social emotional skills.

31. [STUDENT INITIALS] participates in occupational therapy two times per week in the fitness center. One time per week [STUDENT INITIALS]’s occupational therapy is provided in a dyad with one peer and one time per week [STUDENT INITIALS]’s occupational therapy is provided in a group of four. [STUDENT INITIALS]’s occupational therapy is provided by an occupational therapist.

32. [STUDENT INITIALS] participates in art therapy two times per week in a group. [STUDENT INITIALS]’s art therapy is provided by a psychologist who is trained in art therapy, and two paraprofessionals. In art therapy, students work on different skills throughout the school year including artistic development, fostering self-awareness, managing behavior, developing social skills, and increasing self-esteem.

33. [STUDENT INITIALS] participates in an adaptive skills class one time per week in a large group. The adaptive skills class is co-taught by a school psychologist, and occupational and speech and language therapists. In the adaptive skills class, students work on different skills throughout the year including organizational skills, community safety, street crossing safety, subway travel, stranger danger awareness, puberty, clothing management, health food choices, leisure, shopping, and money management. The adaptive skills class reinforces the skills [STUDENT INITIALS] is learning in his counseling sessions as well as his occupational therapy sessions.

34. [STUDENT INITIALS] participates in the program four times per week in a large group. The program is co-taught by the school psychologist and occupational and speech and language therapists. In the program, students work on different skills throughout the year including functional independent daily living skills such as personal hygiene routine, leisure, community safety, and executive function, communication, and social-emotional skills. The program reinforces the skills [STUDENT INITIALS] is learning in his counseling sessions as well as his occupational therapy sessions.

35. [STUDENT INITIALS] participates in the Mind Body Move class, which is co-taught by the physical therapist and the occupational therapist in a group. In this group, students work on different skills throughout the year including body awareness, self-confidence, sequencing, motor planning skills, strength, endurance, balance, and_ bilateral coordination. Additionally, the Mind Body Move class reinforces the skills [STUDENT INITIALS] is addressing in his occupational therapy sessions.

37. At [PRIVATE SCHOOL NAME] , we assess student progress in reading and math using a variety of formal assessments, including Fountas and Pinnell benchmark reading assessments and STAR 360 online assessments in reading and math.

39. It is my understanding that [STUDENT INITIALS] has continued to make academic as well as social-emotional progress during the 2019-2020 school year. [STUDENT INITIALS] has made progress in the areas of decoding and reading fluency, and he is developing higher order thinking skills such as making inferences and connections in stories. [STUDENT INITIALS] is able to write basic sentences, and he is learning to add details to his writing and expand on thoughts about a single topic. In math, [STUDENT INITIALS] has made progress in connecting math skills to real life experiences and working with money. He is learning to read numbers of greater complexity, write numbers in multiple forms, and identify numerical values with the use of place value. With respect to his related services, [STUDENT INITIALS] has improved in_ on-topic socialization with peers, storytelling in speech-language therapy, and writing in occupational therapy. (P-K)

On cross examination, the witness testified that he wrote the affidavit himself and reviewed the student's progress reports prior to writing his affidavit. (T-54) The student's teachers are New York State certified special education teachers. (T-56) All of the students at the private school have some form of educational disability. (T-64)

The private school uses the “Common Core.” (T-65)

There was no substantive testimony developed during the witness’ re-redirect examination. (T-69-70) There was no re-cross examination of the witness. (T-70)

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 or any indication that special transportation was requested at an IEP meeting or included in the student's 2019-2020

IEP. Additionally, 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 2019-2020 school year.

Accordingly, the hearing record does not support a finding that the DOE denied the student a FAPE due to the lack of provision for special transportation for the 2019-2020 school year.

However, this does not constitute a determination regarding the student's entitlement to transportation as available to regular education students or suitable transportation as available to students attending nonpublic schools “for the purpose of receiving services or programs similar to special education programs recommended” by the CSE. (See Educ. Law 3635; 4402/4]|[d]) If the district has not done so already, it should consider transportation of the student to and from the private school in accordance with the above.

I find that the testamentary and documentary evidence submitted by the Parent is credible and uncontroverted. The DOE has defaulted on its statutory obligation in this case, and the record above clearly evidences the appropriateness of the private school.

In fact, the student has been attending the privates school for years now and the record does not evidence a good faith basis for the DOE to assert otherwise. (Supra) The student has not had a comprehensive evaluation in years. (Id.) All in all, it is a shame the DOE forced the Parent to bring this case to a hearing, and then made no effort to show it had provided a FAPE. The record supports a finding that the relief sought is appropriate. Finally, there is nothing in the record to support a finding that the Parent has not cooperated with the agency.

NOW therefore, it is hereby

ORDERED upon the DOE’s DEFAULT 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 the student's receipt tuition at the private school for the student's 12-month 2019-2020 school year thereat, and for his receipt of an independent neuropsychological evaluation to be conducted by Dr.

, at a cost not to exceed $6,000; and it is further

ORDERED upon the DOE’s DEFAULT 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 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 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 14, 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)