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Special Education Law
DECISIONParent PrevailedIHO Case No. 225733

New York City Department of Education, Impartial Hearing Decision

October 20, 2022·Sharifa Milena Nasser

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

FINAL ORDER - DOE DEFAULT & INQUEST - PARENT SUBMISSIONS

Case Number: 225733

NYS Identifier Number 571862

Student’s Name: REDACTED

Date of Birth: [“Confidential”]

District: REDACTED

Hearing Requested By: Parent

Dates(s) of Hearing: 06/29/22 & 09/06/22

Actual Record Close Date: October 1, 2022

Hearing Officer: Sharifa Milena Nasser

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

[REDACTED] Attorney PARENT 06/29/22

[REDACTED] Attorney PARENT 09/06/22

[REDACTED] Mother PARENT 09/06/22

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For # of Pages

A Processed Impartial Hearing 04/07/22 PARENT 14

Request with Cover Letter

B REDACTED 2016/2017 PARENT 01

Charter School Report Card

C Neuropsychological Evaluation 08/06/18 PARENT 03

D IEP, 11/12/19 PARENT 15

E REDACTED Prep REDACTED 2019/2020 PARENT 01

High Official Transcript

F Psycho-Social Evaluation 03/11/20 PARENT 03

G Psychological Evaluation 09/15/20 PARENT 06

H IEP 08/07/20 PARENT 19

I Neuropsychological and 10/27/21 PARENT 21

Educational Evaluation

J IEP 02/11/22 PARENT 21

K REDACTED Evaluation Letter 06/30/22 PARENT 01

L REDACTED N/A PARENT 03

Curriculum Vitae

M REDACTED N/A PARENT 05

Curriculum Vitae

N Affidavit of Testimony of 08/25/22 PARENT 05

REDACTED

O Affidavit of Testimony 04/24/22 PARENT 04

REDACTED

P Affidavit of Testimony of N/A PARENT 05

REDACTED

On June 13, 2022, 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 September 06, 2022. The parties appeared for a Pre Hearing Conference on June 29, 2022 and there was no appearance from the District. On September 06, 2022, date there was again no appearance from the district and no communications as to their whereabouts. 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, on or about April 7, 2022, and carried under New York City (“NYC”) Case No. 225733. The Parent herein alleges that the student was denied a “free and appropriate public education” (“FAPE”) for the 2015-2016, 2016-2017, 2017-2018, 2018-2019, 2019-2020, 2020-2021 and 2021-2022 (hereinafter referred to as 2015-2016 through the 2021-2022) school years in that the parent alleges that the DOE generally failed to assess the child in all areas of his suspected disability. The Parents allege that the CSE failed to conduct a proper review for the student and make appropriate recommendations for their educational planning. The DOE conducted a Psychoeducational evaluation dated June 20, 2019. On or about December 07,2020 the Parent disagreed with the DOE’s evaluation and requested that the DOE fund an independent educational evaluation.

At the impartial hearing, the Parent seeks the following relief:

  • • CSE to reconvene and add to the student’s IEP a mandate of 10 individual SETTS services per week by an outside provider at an enhanced rate of $140.00 per hour.
  • • Student to receive (3) three, thirty-minute sessions per week of 1:1 speech-language therapy;
  • • DOE to conduct a vocational assessment of the student and any other appropriate assessments (including, but not limited to, transitional assessments)—within thirty days and further amend the students’ IEP as warranted by the results of the vocational assessment
  • • DOE to fund (forty) 40 hours of independent counseling by a provider who specializes in transitioning High School students into the outside world at a reasonable market rate.
  • • An award of compensatory services in the amount of 800 hours of multi-sensory tutoring at enhanced rate of $140.00 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 September 06, 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 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 2015-2016 through the 2021-2022 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 2015-2016 through the 2021-2022 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 2015-2016 through the 2021-2022 school years. As such, I find that the DOE failure to afford the student a FAPE constitutes a gross violation of IDEA.

COMPENSATORY SERVICES

There is a request for compensatory educational services in this case and 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, III, ¶2) (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:

After not presenting any case-in-chief and the DOE failing to appear:

Parents witness, REDACTED conducted the student’s neuropsychological evaluation. The Parent’s independent neurologist testified as follows about the student’s need for compensatory educational services:

  • • I am familiar with REDACTED. I conducted a comprehensive neuropsychological evaluation of REDACTED \, which included interviews with REDACTED mother as well as REDACTED tenth grade teacher (Ms. REDACTED) and speech-language pathologist (Mr. REDACTED); and four days of formal evaluative testing (August 4, 2021; August 6, 2021; August 18, 2021; and August 25, 2021).
  • • Based on the findings of my evaluation, I believe that REDACTED requires placement in a small, special education classroom with ample individual and small group instruction specifically addressing his academic weaknesses. These needs seem to be apparent to REDACTED school. REDACTED for instance, described REDACTED as someone “who requires an adult sitting with him to help him make sense of information.” Despite these clear needs, the DOE has failed to offer REDACTED appropriate special education supports for years. At the time of my evaluation, I concluded that REDACTED requires ten sessions per week of special education teacher support services (“SETSS”) to assist him with reading comprehension, essay writing, and consolidating new information learned in class in addition to placement in a self-contained, 15:1 classroom.
  • • As part of my evaluation, I reviewed a psychoeducation evaluation conducted by the DOE in February of 2017. The results of the 2017 DOE Evaluation were discrepant with subsequent evaluations conducted of REDACTED, including my own, and the 2017 DOE Evaluation particularly appeared to overestimate his cognitive and academic functioning levels by significant amounts in some areas. Unfortunately, it appears as though the results of the 2017 DOE Evaluation were used to justify the DOE’s decision to deny REDACTED special education services during the 2016-2017 school year.
  • • I am generally familiar with the programs that REDACTED received since sixth grade (the 2015-2016 school year). In particular, I am aware that REDACTED was not provided with special education services from sixth grade through his first ninth grade year (the 2018-2019 school year). In my professional opinion, REDACTED records make clear that REDACTED disabilities should have been apparent to the DOE during these years, and he should have been provided with special education services during these years. REDACTED was consistently receiving failing or near-failing grades during these years and appears to have evidenced consistent struggles with fundamental aspects of reading, writing, attention, and executive functioning throughout middle school and his first year of high school. Indeed, he was ultimately forced to repeat his ninth-grade year after he failed all of his academic classes for that year. It is clear that the DOE’s failure to provide REDACTED with appropriate (or any) special education services during this period resulted in him falling further and further behind his peers academically and developing negative feelings about school, as well as anxiety surrounding his capabilities and future.
  • • I am also familiar with the special education programs that REDACTED received during his repeat ninth grade year (the 2019-2020 school year) through his eleventh-grade year (the 2021-2022 school year). Starting in the fall of 2019, pursuant to an IEP dated November 12, 2019, REDACTED was placed in an integrated co-teaching (“ICT”) classroom with SETSS in ELA and counseling (1x40, 1:1). For the 2020-201 school year, according to his August 7, 2020 IEP, SETSS was removed from his IEP and speech-language therapy was added (1x30, 1:1; 1x30, group).
  • • In my professional opinion, these special education programs were not sufficiently supportive for REDACTED. An ICT classroom was far too large for REDACTED due to his needs in the areas of language, attention, and executive functioning. REDACTED required placement in a classroom during these years in which he could receive an ample amount of 1:1 and small group support as well as individual support for his language-based needs. Although I believe the SETSS services recommended in his November 12, 2019 IEP were appropriate generally speaking, I do not believe that a sufficient quantity of SETSS was recommended for REDACTED or that the goals for the SETSS instruction were specific to REDACTED greatest areas of need. As noted in my report, I believe that REDACTED language-based needs required intensive remediation and thus he should have been provided with more frequent SETSS instruction during these years. Further, I believe that the even after the DOE identified REDACTED as a student with a disability, his needs were misidentified as primarily attention-related when, in reality, they were primarily the result of his language-based needs. As such, the supports REDACTED received during his ninth-, tenth-, and eleventh-grade years were not properly tailored to REDACTED needs. Relatedly, I do not believe that the special education programs recommended for REDACTED during this time were sufficiently supportive in the area of speech-language therapy. As noted in my report, REDACTED weaknesses with language-based tasks demanded that he receive speech-language therapy to develop his reading, writing, and overall communication skills at a much earlier age.
  • • I participated in REDACTED most recent IEP meeting on February 11, 2022. At the February 11, 2022 IEP meeting, I reiterated the findings and recommendations in my report. I understand that the February 11, 2022 IEP recommends placement in a 15:1 classroom with SETSS twice per week in “various subjects” as well as speech-language therapy (2x40, 1:1) and counseling (1x40, 1:1). I understand that this IEP will remain in effect for at least the start of REDACTED senior year. As set forth in my report, I believe that this IEP fails to meet REDACTED unique special education needs. Although I believe that he should remain in a 15:1 classroom, I believe that his IEP should be amended to mandate 10 sessions of SETSS per week to work on remediating his deficits in reading and writing and to assist him with the retention of newly taught information and build his executive functioning skills. These services should be provided individually or in a small group of no more than three students. Moreover, this provider should work closely with REDACTED subject-matter teachers to ensure that his instruction is individualized and that he can generalize the skills he is working on with the SETSS provider. At the February 11, 2022 IEP meeting, the DOE members of the IEP team did not appear to disagree that REDACTED required a significant amount of SETSS, however they stated that it was the school’s policy not to provide more than two SETSS sessions per week. Moreover, I do not believe that the speech-language therapy mandate contained in the February 11, 2022 IEP is sufficient or appropriate for REDACTED, and that his speech-language therapy mandate should be increased to three sessions per week for the remainder of his high school career. Finally, I believe that REDACTED disability classification should be Speech/Language Impairment, as the root of his difficulties lies with his language impairment as opposed to his ADHD diagnosis.
  • • As noted above, it is clear to me that the programs offered to REDACTED during his sixth-grade year through the present time fell short of the supports he required to make meaningful progress across domains. As a result, REDACTED is well behind his peers and the levels he should have attained if he had been provided with appropriate instruction during these years. Indeed, the DOE’s failure to identify and address REDACTED language-based needs at an early age, when such disorders are easier to address, has resulted in significant delays in REDACTED academic development. Therefore, REDACTED requires and should be provided with a substantial amount of one-on-one multi-sensory tutoring to help him reach the academic levels he would otherwise have attained if the DOE provided him with an appropriate special education program and services during his middle and high school years. REDACTED be permitted to use these compensatory services well beyond his high school graduation (i.e., there should not be an expiration date placed on the compensatory services), as one year is not enough to remediate the impact of REDACTED language disorder.
  • • Moreover, as set forth in my report, REDACTED is concerned about his plans for after high-school, and nothing in REDACTED IEPs or my review of REDACTED records indicates that he has received support in this area from the DOE. Indeed, the “transition activities” set forth in REDACTED most recent IEP sets forth only vague references to a college readiness class and does not provide any individualized services to assist REDACTED in this respect. As such, I believe that REDACTED should receive at least bi-weekly college/vocational counseling by a provider that specializes in working with students that are about to graduate high school until REDACTED graduates from high school. As part of this counseling, REDACTED should receive a thorough vocational assessment. (Parents’ Exhibit “N”)

The Parent’s independent Coaching specialist, REDACTED testified as follows about the student’s need for compensatory educational services and the type of services she can provide the student.

  • • As part of my review, I also spoke with REDACTED mother and thoroughly reviewed the following documentation regarding REDACTED: various progress reports from his public schools; IEPs dated November 12, 2019; August 7, 2020, and February 11, 2022; a neuropsychological evaluation dated October 27, 2021; a psychological evaluation dated September 15, 2020; a psychosocial evaluation dated March 11, 2020; and a psychoeducational evaluation dated March 3, 2017.
  • • My review of the aforementioned documents revealed that REDACTED has significant deficits with reading, writing, expressive and receptive communication, attention, and executive functioning that impact his academic progress. Specifically, the aforementioned records reveal that REDACTED struggles with reading comprehension, essay writing, digesting new information, sequencing, and cognitive flexibility. REDACTED also experiences motor and vocal tics that impact his ability to attend to instruction and sustain focus. REDACTED has experienced numerous setbacks in school as a result of these issues including being required to repeat the ninth grade. It is clear to me from my review that REDACTED should have been provided with special education services much earlier than in his educational career than the 2019-2020 school year.
  • • In addition to the review described above, I also had the opportunity to complete an assessment of REDACTED on June 30, 2022 to determine his academic areas of strength and weakness and his instructional needs—specifically with respect to his reading, spelling, mathematics, and written expression skills. To test his reading skills, REDACTED was asked to identify a series of words using the Wide Range Achievement Test. Using the same diagnostic exam, he was asked to spell a series of words to test his encoding skills and he completed a series of mathematics problems to assess his mathematics skills. To gain a sense of his written expression abilities, REDACTED was asked to complete a writing sample using the Test of Written Language. Finally, I used the Qualitative Reading Inventory to assess his reading comprehension skills. Based on these evaluations, REDACTED—who is entering the twelfth grade in the fall—is at a low sixth grade level for spelling, a low-seventh grade level for decoding, and a low tenth grade level for mathematics. He also tested at a sixth-grade level for reading comprehension and a low sixth grade level for writing.
  • • Based on my review (which, again, included my conversation with REDACTED mother and my review of the documents listed in paragraph 9 above), and my assessment, it is clear that REDACTED requires intensive one-on-one multi-sensory tutoring to develop his skills in the areas of reading, writing, math, attention, and executive functioning. Without solidifying these skills, I feel that REDACTED will only continue to struggle as he finishes high school and beyond high school in whatever post-secondary path he chooses. In order to build REDACTED academic and executive functioning skills to the levels they would have been had he been provided with an appropriate special education program since his sixth grade year—he ought to receive a minimum of 800 hours of one-on-one multisensory academic instruction and executive functioning instruction/coaching. These 800 hours of one-on-one instruction should be provided as a combination of academic instruction using the Orton-Gillingham technique and specific multi-sensory tools, along with executive functioning instruction/coaching.
  • • Moreover, I have reviewed the neuropsychological report of Dr. REDACTED dated October 27, 2021 and concur with Dr. REDACTED recommendation that REDACTED receive 10 sessions per week of in-school special education teacher support services (“SETSS”) for the remainder of his high school career to allow for additional remediation with his academic skills and to assist REDACTED with newly learned material and other executive functioning skills. Indeed, as nearly a year has gone by since Dr. REDACTED evaluation, I believe the need for these services is even more critical and urgent for REDACTED. Again, given REDACTED profile, I would recommend that these SETSS sessions be by a provider(s) trained in multi-sensory teaching methods, and that this provider(s) be in close communication with REDACTED outside tutor to coordinate instruction.
  • • REDACTED has served students in very similar circumstances (i.e., students with similar profiles and deficits as REDACTED), and 800 hours of the multi-sensory academic and executive functioning instruction/coaching described above, coupled with appropriate services during the school day, has proven to be both necessary and sufficient to allow such students to reach the academic and executive functioning levels they otherwise would have attained but for not being provided with appropriate special education programs in the past.
  • • REDACTED is willing and able to provide the services recommended above. Our hourly rate for the aforementioned multi-sensory tutoring and executive functioning coaching (both during the school day as SETSS services and outside of school) is $140. The DOE has agreed—or has otherwise been ordered—to pay this rate on countless occasions in the past. This rate, moreover, is within—if not below—the normal market rate for tutoring companies in New York City that provide similar services; many organizations charge $150 per hour or more, and some individuals charge up to $250 per hour or more for similar services. (Parents’ Exhibit-O)
  • • The students mother credibly testified as follows:
  • • Dr. REDACTED conducted such evaluation of REDACTED in August of 2021 and completed a corresponding written report containing his findings and recommendations on or about October 27, 2021.  On November 10, 2021, I provided a copy of Dr. REDACTED report to the DOE and requested that the DOE convene an IEP meeting to discuss Dr. REDACTED findings and recommendations.
  • • Despite my request, the DOE did not schedule an IEP meeting for REDACTED until February 11, 2022.  Dr. REDACTED attended the February 11, 2022 IEP meeting.  The February 11, 2022 IEP mandated placement in an ICT classroom for social studies, a 15:1 classroom for ELA, Math, and Social Studies, SETSS in “various subjects” (2x/week), and related services in speech-language therapy (2x40, 1:1) and counseling (1x40, 1:1).
  • • I did not agree with the February 11, 2022 IEP because it did not fully adopt Dr. REDACTED recommendations. In particular, it did not adopt Dr. REDACTED recommendations concerning SETSS. I was also concerned that the February 11, 2022 IEP team failed to consider REDACTED post-secondary plans, which have become an increasing area of concern and worry for REDACTED.
  • • Unfortunately, though unsurprisingly, following the creation of the February 11, 2022 IEP, REDACTED continued to struggle and receive low grades in all of his classes.
  • • The DOE failed to provide me with a copy of the New York procedural safeguards notice or otherwise explain my due process rights to me at any point during REDACTED educational career until around January of 2021 when I filed my complaint seeking funding for an independent educational evaluation. Moreover, due to the DOE’s failure to evaluate REDACTED in all areas of suspected disability, I was unaware of REDACTED full range of diagnoses, including his diagnoses of Language Disorder, and Specific Learning Disorder with impairment in Reading and Written Expression, and REDACTED specific needs related to those diagnoses, until I received Dr. REDACTED report in the fall of 2021. If I would have known of my procedural due process rights and the full range of REDACTED special education needs, I would have challenged the special education programs (or lack thereof) offered to REDACTED by the DOE much earlier in his educational career. (Parents’ Exhibit -P)

The DOE failed to appear and cross examine any of the parents three witnesses. (T-11-12) As such, I find all of her testimony credible and completely uncontroverted.

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 upon the DOE’s default and its tacit concession of denial of FAPE, for the school years of 2015-2016 through 2021-202 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 10 individual SETTS services per week by an outside provider at an enhanced rate of $140.00 per hour.

ORDERED that student to receive (3) three, thirty-minute sessions per week of 1:1 speech-language therapy;

ORDERED that within 30 days the CSE to reconvene and add to the student’s IEP a mandate of 10 individual SETTS services per week by an outside provider at an enhanced rate of $140.00 per hour and (3) three, thirty-minute sessions per week of 1:1 speech-language therapy;

ORDERED that within 30 days, the DOE shall conduct a vocational assessment of the student and any other appropriate assessments (including, but not limited to, transitional assessments)—within thirty days and further amend the students’ IEP as warranted by the results of the vocational assessment

ORDERED that the NYC-DOE shall either reimburse the Parent and/or directly pay the cost for the student’s (forty) 40 hours of independent counseling by a provider who specializes in transitioning High School students into the outside world at a reasonable market rate.

ORDERED that upon its receipt of reasonably satisfactory of services having been rendered, the NYC-DOE shall either reimburse the Parent and/or directly pay the cost for the student’s compensatory services in the amount of 800 hours of multi-sensory tutoring and related services at enhanced rate of $140.00 per hour.

ORDERED that within 30 days 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 2022-2023 school year; and it is further

ORDERED that within 30 days 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 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.

Sharifa Milena Nasser

DATED: October 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)