Impartial Hearing Decision

FINAL ORDER - DOE DEFAULT & INQUEST - PARENT SUBMISSIONS

Case Number: 191078

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

Date of Birth: [“Confidential”]

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 04/08/20

Actual Record Close Date: 10/26/20

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

[CONFIDENTIAL] DOE Representative DOE 04/08/20 (T)

[CONFIDENTIAL] Attorney PARENT 04/08/20 (T)

[CONFIDENTIAL] Mother PARENT 04/08/20 (T)

[CONFIDENTIAL] Law Clerk PARENT 04/08/20 (T) [CONFIDENTIAL] Law Clerk PARENT 04/08/20 (T)

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For #of Pages

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

PARENT'S “PROPOSED” EXHIBITS

P-A. Impartial Hearing Request INDIVIDUALIZED EDUCATION PROGRAMS 11/22/19 10 pages

P-B. Individualized Education Program 03/31/17 15 pages

P-C. Individualized Education Program 01/16/18 15 pages

P-D. Individualized Education Program 01/15/19 15 pages

P-E. Individualized Education Program 03/14/19 15 pages

P-F. Individualized Education Program EVALUATIONS/PROGRESS REPORTS 07/16/19 19 pages

P-G. DOE Behavior Intervention Plan 06/28/17 7 pages

P-H. Psychological Evaluation 07/20/17 5 pages

P-J. P-] Autism Evaluation 09/05/17 5 Functional Behavior Analysis Undated 2 pages

P-K. Behavior Intervention Plan 05/14/19 2 pages

P-L. Progress Report 2018-2019 06/25/19 3 pages

P-M. DOE Educational Evaluation 06/27/19 3 pages

P-N. Progress Report 2019-2020 12/10/19 3 pages

P-O. Independent Speech-Language Evaluation 03/03/20 18 pages

P-P. Independent Neuropsychological Evaluation 03/13/20 29 pages

P-Q. Parent Letter Requesting Reevaluation 09/29/17 1 page

P-R. Parent Letter Requesting Independent Educational Evaluations with Fax Confirmations AFFIDAVITS 08/13/19 4 pages

P-S. Affidavit of [“Confidential”] 04/06/20 3 pages

P-T. Affidavit and Resume of [“Confidential”’] 04/07/20 10 pages

P-U. Affidavit and Resume of [“Confidential’’| 04/03/20 5 pages

P-V. Affidavit and Resume of [“Confidential’’| 03/31/20 4 pages

P-W. Affidavit of [“Confidential’’] 04/02/20 2 pages

P-X. Closing Statement 04/17/20 ***The Parent submitted testamentary and documentary evidence in multiple “PDF” documents and was directed to resubmit the exhibits in one PDF with the exhibit list as the first page, an email that copied the case manager and the DOE presentative, to which the DOE representative could acknowledge receipt and indicate whether or not the agency objected to the content of the affidavits and if it wished to cross-examine the Parent’s affiants. (T-11-2) The Parent never resubmitted her testamentary and documentary evidence.*** 14 pages

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

On November 27, 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 April 8, 2020. The Parent submitted a written closing statement that was received on April 17, 2020. (P-X) The DOE did not submit a written closing statement and did not object to the Parent’s written closing statement. 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), [CONFIDENTIAL] on or about November 22, 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 2017-2018, 2018-2019 and 2019-2020 school years. At the impartial hearing, the Parent request the following relief: (a) A neuropsychological evaluation to be conducted by [CONFIDENTIAL], a New York State licensed psychologist, at a rate not to exceed $4,000, an Applied Behavior Analysis Skills Assessment to be conducted by a Board Certified Behavior Analyst at [CONFIDENTIAL], at a rate not to exceed $3,375, a Functional Behavior Assessment to be conducted by [CONFIDENTIAL], at a rate not to exceed $3,375, a Behavior Intervention Plan to be conducted by [CONFIDENTIAL], at a rate not to exceed $1,125, and a speech language evaluation to be conducted by a New York State licensed speech therapist at [CONFIDENTIAL], at a rate not to exceed $1,800; and

(b) Specialized transportation with a 1:1 door-to-door transportation paraprofessional to and from the Student’s educational placement (c) Compensatory education services in areas that include, but are not limited to, behavior support services (such as ABA), speech-language therapy, counseling, and academic tutoring; and (d) | Compensatory parent counseling and training; and (e) — Any further relief that the IHO may deem just and proper.

At the hearing, the DOE agreed to consider a deferral to CBST, (125) hours of speech and language therapy, (300) hours of academic tutoring, and (50) hours of parent counseling and training, but not an enhanced rate for those services, but instead will offer an “RSA” for the related services and a P-3 for the academic tutoring. (T-7-8)

The Parent submitted testamentary and documentary evidence in multiple “PDF” documents and was directed to resubmit the exhibits in one PDF with the exhibit list as the first page, an email that copied the case manager and the DOE presentative, to which the DOE representative could acknowledge receipt and indicate whether or not the agency objected to the content of the affidavits and if it wished to cross-examine the Parent’s affiants. (T-11-2) The Parent never resubmitted her testamentary and documentary evidence.

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 April 8, 2020, and this decision being made on the basis of the submission of testamentary evidence pursuant to 8 NYCRR 200.5{j][3][xii][f] (P-S, P-T, P-U, P-V & P-W - not ultimately received in evidence - see above), which the DOE did not cross examine, and the Parent's unopposed documentary evidence (T-4-7); 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 an “inquest” on the Parent's request for relief and a proposed “Final Order” being based upon the Parent’s uncontroverted testamentary and documentary submissions (T-1-16, P-S, P-T, P-U, P-V & P-W - not ultimately received in evidence - see above); 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-4-7); 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 that sustains a finding that the Parent has not cooperated with the CSE; and Whereas the Parent has submitted the testimony of (5) witnesses on direct examination via affidavits pursuant to 8 NYCRR 200.5{j][3][xii][f], (P-S, P-T, P-U, P-V & P-W - not ultimately received in evidence - see above), and the DOE having declined to cross examine the witnesses (T-4-7); and Whereas the Parent's testamentary and documentary submissions are uncontroverted and need not be repeated herein as they are annexed hereto for the benefit of the reader (P-S, P-T, P-U, P-V & P-W - not ultimately received in evidence see above); 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 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 Parent's attorney has proffered that on August 13, 2019 he sent a letter to the CSE requesting independent evaluations (P-X); and Whereas the DOE did not object to the Parent's written closing statement; and Whereas, in the alternative, the undersigned would find that a holding that the Parent's “DPC” serves as notice of the Parent’s request for an IEE would undermine the 3 “ contemplated purpose and aim of the Regulations of the Commissioner of Education § 200.5(g). (See 8 NYCRR § 200.5 and specifically 8 NYCRR § 200.5(g)(iv); and Whereas I find that the Parent in this case did serve the DOE with proper notice of her request for an IEE as contemplated by the law, and I will also 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 evaluations of the student in all of his suspected areas of disability not evaluated within the last two years, which the Parent may subsequently agree or disagree with; 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, there is no admitted evidence as to the student's need for special transportation during the relevant school year or any admitted evidence that special transportation was previously requested; and Whereas 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 relevant school year; and Whereas accordingly, the hearing record does not support a finding that the district 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 should consider transportation of the student to his private school in accordance with the above; and Now, therefore, it is hereby

ORDERED that based upon the DOE default resulting in a finding of a (3) year denial of FAPE, amounting to a “gross violation” of FAPE, and its concessions, 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 receipt of a neuropsychological evaluation to be conducted by [CONFIDENTIAL], a New York State licensed psychologist, at a rate not to exceed $4,000, an Applied Behavior Analysis Skills Assessment to be conducted by a Board Certified Behavior Analyst at [CONFIDENTIAL], at a rate not to exceed $3,375, a Functional Behavior Assessment to be conducted by [CONFIDENTIAL], at a rate not to exceed $3,375, a Behavior Intervention Plan (only if recommended by the BIP) to be conducted by [CONFIDENTIAL], at a rate not to exceed $1,125, and a speech language evaluation to be conducted by a New York State licensed speech therapist at [CONFIDENTIAL], at a rate not to exceed $1,800, (125) hours of speech and language therapy, (300) hours of academic tutoring, and (50) hours of parent counseling and training, all at a rate not to exceed the reasonable and fair market rate cost for such services 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 identified above and not evaluated within the last two years, for his 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 also considers deferring the student’s case to the CBST, 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 2, 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)