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NYSED # 550894 / NYC # 207168
FINAL ORDER - DOE DEFAULT & INQUEST - PARENT SUBMISSIONS
Case Number: 207168
NYS Identifier Number N/A
Student’s Name: REDACTED
Date of Birth: [“Confidential”]
District: REDACTED
Hearing Requested By: Parent
Dates(s) of Hearing: 03/23/22 & 05/18/22
Actual Record Close Date: 05/26/2022
Hearing Officer: Sharifa Milena Nasser
NAMES AND TITLES OF PERSONS WHO APPEARED
Name Title For Date
[CONFIDENTIAL] Attorney PARENT 02/04/22
[CONFIDENTIAL] District Representative DOE 02/04/22
[CONFIDENTIAL] Attorney PARENT 03/23/22
[CONFIDENTIAL] Mother PARENT 03/23/22
[CONFIDENTIAL] REDACTED Interpreter PARENT 03/23/22
[CONFIDENTIAL] District Representative DOE 03/23/22
[CONFIDENTIAL] Attorney PARENT 05/18/22
[CONFIDENTIAL] Mother PARENT 05/18/22
[CONFIDENTIAL] REDACTED Interpreter PARENT 05/18/22
DOCUMENTATION ENTERED INTO RECORD
Number/Letter Title Dated For # of Pages
A DPC 03/09/21 PARENT 09
B IEP 07/21/16 PARENT 25
C IEP 06/07/17 PARENT 17
D IEP 01/29/18 PARENT 16
E Unidentified Document N/A PARENT N/A
F IEP 01/23/19 PARENT 32
G IEP 11/13/19 PARENT 23
H IEP 12/15/20 PARENT 28
I Occupational Therapy 01/03/18 PARENT 04
CSE Report
J 12-Month Rationale 01/26/18 PARENT 01
K Social History Update 01/23/18 PARENT 02
L REDACTED N/A PARENT 25
M Classroom Observation 03/16/18 PARENT 01
N Child Outcome Summary Form 05/07/18 PARENT 02
O Psychological Evaluation Report 05/08/18 PARENT 01
P Speech-Language Referral 12/21/18 PARENT 01
Q Speech-Language Referral 09/26/19 PARENT 01
R Confidential Psychological 11/01/19 PARENT 03
S Psychological Evaluation 09/24/20 PARENT 04
T Speech-Language Progress 01/04/18 PARENT 04
Report
U Physical Therapy Progress 01/06/18 PARENT 03
Report
V Educational Progress Report 01/26/18 PARENT 04
W Authorization of the IEP 01/29/18 PARENT 01
X School Location Letter 08/29/18 PARENT 01
Y New York City DOE Signed 09/20/19 PARENT 01
Letter Regarding Mandated
Reevaluation
Z IEE Request Letter 10/13/20 PARENT 01
AA Affidavit of REDACTED 02/18/20 PARENT 02
BB Affidavit of REDACTED 03/21/22 PARENT 01
CC Partial Resolution Agreement 03/22/22 PARENT 03
On December 7, 2021, 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. 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 March 23, 2022 and on May 18, 2022, on that date there was no appearance from the district and an email was sent to all parties on during the hearing inquiring into the whereabouts of the District. On March 29, 2022, an e-mail was sent to both parties inquiring if May 11, 2022, or May 18, 2022, was a good date to continue the hearing. Parent confirmed May 18, 2022, as a good date but the District did not respond. The undersigned waited a week to see if the District responded before scheduling the hearing. A response was never received from the District. There was no appearance from the District and no response was received. A list of 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 counsel REDACTED, on or about February 26, 2020, and carried under New York City (“NYC”) Case No. 207168. The Parent herein alleges that the student was denied a “free and appropriate public education” (“FAPE”) for the 2019-2020 through the 2020-2021 school years in that the parent was denied their right to participate in the formulation of an appropriate program, failure regarding evaluations and failures to provide specific methodologies. (T-12) REDACTED is an REDACTED year old child who has been diagnosed with autism spectrum disorder, severe intellectual disorder, seizure disorder and expressive language disorder. (T-13) and Parent’s (S-001)
At the impartial hearing, the Parent seeks the following relief:
- • Finding of a denial of FAPE for the 2019-2020 through 2020-2021 school years
- • A CSE review and IEP meeting to be held to consider all current assessments both DOE and private and current data from the school and create an IEP for the 2022-2023 school year.
- • In home ABA therapy to be added to the student’s IEP
- • DOE to fund 420 hours of one on one instructional services for make up therapy sessions by a service provider of the parents’ choice at the usual and customary rate for service. The make up services would include speech language; OT & PT make up sessions.
PARTIAL RESOLITION AGREEMENT
As part of the Parents Exhibits (CC) the parties entered into the following agreement with the District on consent. An Independent Neuropsychological evaluation at a rate not to exceed $6,000 within 30 days of receipt of the invoice of said evaluation. The DOE will perform the following evaluations on or before May 09, 2022 if not already previously done within the past 6 months: OT, PT, Speech, FBA and a BIP if applicable to be administered by a DOE BCPA, from within 30 days of the date of the execution of the document being March 22, 2022. A CSE review and IEP meeting will be held to consider all current assessments both DOE and private and current data from the school and create an IEP for the 2022-2023 school year.
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 March 23,2022 and May 18, 2022 and this decision being made not on the basis of the submission of testamentary evidence pursuant to 8 NYCRR 200.5[j][3][xii][f],and
Whereas the Parent appeared with counsel and an official REDACTED language interpreter and the DOE failed to appear or provide any communications as to why anyone was unable to appear on their behalf; and
Whereas the matter proceeded to essentially 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 (Id.);
DOE DEFAULT
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
As noted above, the DOE’s failure to present a case at the hearing is a concession that it denied the student a FAPE for the 2019-2020 through the 2020-2021 school years 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 through 2020-2021 school years and that the Parent may be entitled to the relief she has requested.
GROSS VIOLATION
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.”
Here, the DOE’s failed to provide the student a FAPE for the 2019-2020 through 2020-2021 school years. As such, I find that the DOE failure to afford the student a FAPE constitutes a gross violation of IDEA.
APPROPRIATENESS OF THE RELIEF SOUGHT
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).
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 compensatory education at an enhanced rate. (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’s testamentary evidence is completely 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 the parties’ oral arguments, discussions, concessions, testamentary and documentary evidence and this order having been recorded and annexed hereto; and
Whereas the DOE’s default constitutes a concession of a denial of FAPE and the completely uncontroverted testamentary and documentary evidence submitted by the Parent and annexed hereto supports the Parent’s request for relief; and
Now, therefore, it is hereby
- • ORDERED DOE to fund 420 hours of one on one instructional services for make up therapy sessions by a service provider of the parents’ choice at district at fair market rate cost for such services in New York City and include speech language; OT & PT make up sessions.
- • In home ABA therapy to be added to the student’s IEP to be paid for by the district at fair market rate cost for such services in New York City
- • 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 2022-2023 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: June 20, 2022 _______________________
Queens, New York Sharifa Milena Nasser- 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)