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FINAL ORDER - DOE DEFAULT & INQUEST - PARENT SUBMISSIONS
Case Number: 191646
NYS Identifier Number
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Dates(s) of Hearing: 04/15/20
Actual Record Close Date: 10/12/20
Hearing Officer: Edgar De Leon
NAMES AND TITLES OF PERSONS WHO APPEARED
Name Title For Date DOE Representative DOE 04/15/20 (T) Attorney PARENT 04/15/20 (T)
Mother PARENT 04/15/20 (T)
DOCUMENTATION ENTERED INTO RECORD
Number/Letter Title Dated For # of Pages
N/A N/A N/A DOE N/A
PARENT’S EXHIBITS
Exh. A-1 to A-4 Impartial Hearing Complaint (12-18-19) 4 pages
Exh. B-1 to B-6 Psychoeducational Evaluation (05-01-18) 6 pages
Exh. C-1 to C-4 Educational Observation & Evaluation (05-14-18) 4 pages
Exh. D-1 to D-4 Speech & Language Evaluation (05-11-18) 4 pages
Exh. E-1 to E-3 OT Evaluation (06-07-18) 3 pages
Exh. F-1 to F-3 Preschool OT Clinical Guide (01-24-19) 3 pages
Exh. G-1 to G-16 IEP (06-28-18) 16 pages
Exh. H-1 to H-12 IEP (06-28-19) 12 pages
Exh. I-1 to I-4 Prior Written Notice (06-26-19) 4 pages
Exh. J-1 to J-19 IEP (06-25-19) 19 pages
Exh. K-1 [“Confidential”] letter for Para. (06-10-19) 1 page
Exh. L-1 to L-2 Social History Update (04-30-19) 2 pages
Exh. M-1 to M-2 Teacher Interview/Results of PES Scale (05-22-19) 2 pages
Exh. N-1 to N-3 Classroom Observation (05-22-19) 3 pages
Exh. O-1 Parent Email to OT Provider (07-17-19) 1 page
Exh. P-1 to P-2 Parent Email to CPSE Admin. (03-19 to 03-21-19) 2 pages
Exh. Q-1 to Q-9 Student SEIT Progress Report (12-02-18 to 02-22-19)
9 pages
Exh. R-1 to R-51 Emails for ’s SEIT and Speech 01-08 to 03-11-19)
51 pages
Exh. S-1 to S-2 Emails from Provider Regarding OT Services (08-16-19)
Exh. T-1 to T-4 Parent Affidavit (04-08-20) 4 pages
Exh. U-1 to U.3 Affidavit (04-23-20) 3 pages
N/A N/A N/A IHO N/A
On December 20, 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 public school and the New York City - Department of Education (
“DOE”) - , 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 April 15, 2020. 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 December 18, 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) An order awarding compensatory education/SEIT services to the student at the enhanced rate at the expense of the DOE; and
(b) A speech and language evaluation at the enhanced rate at the expense of the DOE;
(c) Speech and language services for the student; and
(d) Compensatory speech and language services for the student due to the CPSE’s failure to provide speech and language as a related service;
(e) Compensatory occupational therapy for the student due to the CPSE’s failure to timely implement the June 28, 2019 IEP.
At the impartial hearing, the Parent withdrew her request for a speech and language evaluation. (T-8) The DOE conceded that there had been a denial of FAPE for at least two out of the three years identified above. (T-7-8)
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 15, 2020, the parties agreed to have this decision/order made on the basis of the Parent’s documentary submissions, which include testamentary evidence pursuant to 8 NYCRR 200.5[j][3][xii][f] (P-T & P-U), which the DOE does not oppose and waives its right to challenge via cross examination and the Parent’s unopposed documentary evidence (T-6-8); and
Whereas the Parent appeared with her attorney(s), , attorney assigned and the DOE by its representative, assigned; 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-1-15); 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-1-15); 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 submissions that sustains a finding that the Parent has not cooperated with the CSE; and
Whereas the Parent has submitted the testimony of (2) witnesses on direct examination via affidavits pursuant to 8 NYCRR 200.5[j][3][xii][f], (P-T & P-U) and the DOE having declined it right to contest that testimony and/or cross examine the Parent’s witnesses (T-6-8); 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’ testamentary and documentary evidence, oral arguments, discussions, concessions 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[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, there is no request, and no indication in the hearing record as to the student's need for special transportation during the relevant school years or any indication that special transportation was previously requested; and
Whereas there is no IEP in evidence providing for the student to receive special education transportation services (P-G & P-H); and
Whereas additionally, there is no evidence in the hearing record as to how the student was transported to and from the public school each day during the relevant school years; 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 tutoring service ordered below in accordance with the above; and
Whereas the relief sought in this case, consisting of (84) hours of compensatory SEIT services and (46) hours of compensatory speech therapy (P-U); 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 in this case has withdrawn her request for a speech and language evaluation (T-8); and
Whereas the undersigned held that a request that a Parent’s “DPC” serve as notice of the Parent’s request for an IEE would undermine the 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 in this case, I need not determine whether the Parent did serve the DOE with proper notice of her request for an IEE as contemplated by the law, but 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 evaluations in all areas of the student’s suspected disabilities not evaluated within the last two years, which the Parent may subsequently agree or disagree with; and
Whereas the DOE’s 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.
Whereas the completely uncontroverted testamentary and documentary evidence submitted by the Parent need not be repeated here as it is annexed hereto for the benefit of the reader.
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 directly pay the cost of the student’s receipt of (84) hours of compensatory SEIT services, at a rate not to exceed the reasonable and fair market rate cost for such services in New York City, and (46) hours of compensatory speech and language services, at a rate not to exceed the reasonable and fair market rate cost for such services in New York City, and compensatory occupational therapy services on a one-for-one basis for any occupational therapy services the student was entitled to receive under his IEP dated June 28, 2019, which according to the NYC-DOE attendance records, the student did not receive due to the DOE’s failure to timely implement said IEP, during the student’s 2019-2020 school year, 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 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 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: October 20, 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)