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CASE NUMBER: 574333 - NYC: 227204
FINAL ORDER - DOE DEFAULT “NO APPEARANCE” & INQUEST - PARENT SUBMISSIONS
Case Number: 227204
NYS Identifier Number N/A
Student’s Name: REDACTED
Date of Birth: [“Confidential”]
District: REDACTED
Hearing Requested By: Parent
Dates(s) of Hearing: August 22, 2022
Actual Record Close Date: August 22, 2022
Hearing Officer: Edgar De Leon
NAMES AND TITLES OF PERSONS WHO APPEARED
Name Title For Date
“No Appearance” N/A DOE 08/22/22
[CONFIDENTIAL] Attorney PARENT 08/22/22 (V)
[CONFIDENTIAL] Mother PARENT 08/22/22 (V)
[CONFIDENTIAL] Grandmother PARENT 08/22/22 (V)
DOCUMENTATION ENTERED INTO RECORD
Number/Letter Title Dated For # of Pages
N/A N/A N/A DOE N/A
PARENT EXHIBITS
A 6.29.22 Due Process Complaint 11 pages
B 4.27.20 Individualized Education Program 18 pages
C 11/17/20 - 12/21/20 Interim Progress Report 1 page
D
1.15.21
Letter to Mr. REDACTED
1 page
E 4.26.21 2020-2021 Second Marking Period Report Card 1 page
F 4.29.21 Individualized Education Program 18 pages
G Fall 2021 ELA and Math MAP Scores 19 pages
H
10.27.21
Email to Mr. REDACTED
1 page
I 2.11.22 Individualized Education Program 18 pages
J Various 2021-2022 Term 2 and Final Report Cards 4 pages
K Various 2020-2021 & 2021-2022 Related Service Records 24 pages
L 9.2.21 REDACTED Evaluation Report 6 pages
M 8.2.22 Affidavit of REDACTED 11 pages
N 8.10.22 Affidavit of REDACTED 24 pages O Closing Statement 08/22/22 PARENT 12
N/A N/A N/A IHO N/A
On July 7, 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, concerning a dispute between the Parent of a (9) year old student attending a public school and the New York City - Department of Education (“DOE”) - District: 30, 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 August 22, 2022. The DOE did not appear at the hearing. 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), REDACTED on or about June 29, 2021, and carried under New York City (“NYC”) Case No. 227204. The Parent herein alleges that the student was denied a “free and appropriate public education” (“FAPE”) for the 2020-2021 and 2021-2022 school years. At the impartial hearing, the Parent requests the following relief:
(a) That NYC-DOE conduct a full battery of evaluations of the student, including but not limited to an updated Social History, Classroom Observation, Speech Language Evaluation, Auditory Processing Evaluation, Occupational Therapy Evaluation, Physical Therapy Evaluation and an Assistive Technology Evaluation and a Neuropsychological Evaluation; and
(b) That the CSE shall convene a duly constituted IEP team to develop an appropriate IEP that offers an appropriate program that addresses the student’s behavioral, academic, and emotional needs; and
(c) That the NYC-DOE reimburse the Parent, upon production of receipts, of all monies paid for tutoring services the Parent was forced to obtain due to the NYC-DOE’s failure to provide the student with a FAPE; and
(d) That the NYC-DOE provide at least (573) hours of compensatory tutoring services at the enhanced rate, based on the denial of appropriate services and FAPE, during each of the 2020-2021 and 2021-2022 school years; and
(e) That the NYC-DOE shall provide at least (96) hours of compensatory occupational therapy at the enhanced rate for services which the NYC-DOE either failed to provide or from which the student received no meaningful benefit; and
(f) An award of all attorneys’ fees incurred by the Parent in his case; and
(g) Any other relief that the IHO deems appropriate.
FINAL ORDER - DOE’S DEFAULT - FAILURE TO APPEAR 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 an “impartial hearing” before this IHO on August 22, 2022, and which time the DOE did not appear at the hearing and the Parent agreeing to have this decision/order made on submission of oral arguments and testamentary and documentary evidence; and The Parent having appeared with her attorney(s), REDACTED, attorney REDACTED assigned and having provided testimony via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f], with the DOE having failed to appear at the hearing (P-M & P-N); and The Parent thus to agreeing to conduct an inquest regarding her damages and the relief she seeks, and this “Final Order” consented to by the Parent based upon her testamentary and documentary submissions, having been presented to this IHO on the record as being in the best interest of the Parent; 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 appear and submit any testamentary or documentary evidence to meet it burden under the law; and
Whereas the DOE failed to appear for the impartial hearing as scheduled, failed to file and serve an answer, or serve a “Prior Written Notice” in this case. (See 20 U.S.C. 1415(f)(3)(e); and
Whereas “Prior Written Notice” meaning 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; and
Whereas silence in a responsive pleading is an admission, or that a counterclaim in federal practice is compulsory in the answer or deemed waived. (See New York Practice, 4th 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) and additionally, as a general matter, the parties to an impartial hearing are obligated to comply with the reasonable directives of the Impartial Hearing Officer (“IHO”) regarding the conduct of the impartial hearing. (SRO No. 05-026, 04-103 and 04-061); and
Whereas an IHO may require the parties to be present at the impartial hearing. (8 NYCRR 200.5(j)(3)(xiii) and an IHO’s order to the Parent (here the DOE) to attend the impartial hearing in order to be questioned is a reasonable directive that obligates the agency to comply. (SRO No. 09-073); and
Whereas the parties’ appearance is integral to the administration of an impartial hearing and at an impartial hearing, the IHO is authorized to administer oaths and to issue subpoenas in connection with the administrative proceeding (8 NYCRR 200.5[j][3][iv]) and the IHO may ask questions of attorneys or witnesses for the purposes of clarification or completeness of the hearing record. (8 NYCRR 200.5[j][3][vii]); and
Whereas the Parents, school authorities, and their respective attorneys or representatives, have an opportunity to present evidence, compel the attendance of witnesses, and to confront and question all witnesses at the impartial hearing. (8 NYCRR 200.5[j][3][xii]) and the IHO may take direct testimony by affidavit in lieu of in-hearing testimony, provided that the witness giving such testimony shall be made available for cross-examination (8 NYCRR 200.5[j][3][xii][f]) and none of these processes can occur without the participation of the parties; and
Whereas an IHO’s dismissal of a DPC with prejudice, based on the failure of the party to prosecute and comply with reasonable directives issued during the proceeding, has been held appropriate under the circumstances of the case. (SRO No. 04-061); and
Whereas 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]); and
Whereas under New York law, a party’s failure to show up at the scheduled time for trial may entitle the opposing party to a default judgment. (CPLR § 3215(a); and
Whereas here, the DOE did not appear at the hearing or proffer any evidence that it has offered the student a FAPE, this amounting to a tacit concession that the agency did not offer the student a FAPE; and
Whereas although 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; and
Whereas 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 (1st 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); and
Whereas here the DOE did not appear at the hearing, did not present a case-in-chief and made no substantive effort to controvert the testamentary and documentary evidence submitted by the Parent and the credibility of the testamentary and documentary evidence was not rebutted by the agency and the testamentary documentary evidence is clearly relevant and material to the issues to be determined; and
Whereas I find the testamentary and documentary evidence submitted by the Parent in this case to be credible, completely uncontroverted and conclusive in this case; and
Whereas 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 the Parent is entitled to the relief she seeks and 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); and
Whereas 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'"]); and
Whereas when, as here, the DOE does not appear and present any case at the hearing, the hearing process essentially becomes an “inquest” as to the appropriate relief; and
Whereas the DOE has conceded liability by failing to present a case and meet its burden under the law because 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]; and
Whereas 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 and the undersigned finds that the DOE failed to adhere to the requirements of the law, has denied the student in this case a FAPE and that the Parent is entitled to the relief she has requested; and
Whereas when turning 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); and
Whereas 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); and
Whereas 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); and
Whereas 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); and
Whereas the 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) and 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"]]); and
Whereas 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]); and
Whereas 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]); and
Whereas 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]); and
Whereas in sum, substance and relevant part, the testamentary evidence
Whereas the record in this case is completely uncontroverted by the DOE and supports a finding that the Parent is entitled to the relief sought as indicated below (supra) and it is unfortunate that the agency forced the Parent in this case to bring the matter to a hearing, when it offered no evidence that it provided the student with a FAPE and then did not challenge the Parents’ assertion regarding the appropriateness of the relief sought; 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 uncontroverted testamentary and documentary submissions that sustains a finding that the Parents have not cooperated with the CSE; and
Whereas the Parent has submitted the testimony of (2) witnesses on direct examination via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f] (P-M & P-JN), who in sum, substance and relevant part testified as follows:
3. I am currently employed full-time as the Account Manager at REDACTED. I started this position on March 28, 2022.
4. I am also employed part-time as the Director of Educational Services at REDACTED (“[PROVIDER INITIALS]”).
5. I earned a Bachelor of Science in Elementary and Special Education from REDACTED College.
6. I am New York State certified in elementary and special education.
20. On September 2, 2021, REDACTED conducted an evaluation of REDACTED under my direction and supervision, therefore, I have personal knowledge of the evaluation administered to REDACTED, the content of that evaluation, REDACTED evaluation results and how to interpret those results. Parent Exhibit L.
21. REDACTED administered the following evaluations during REDACTED academic evaluation: Slosson Visual Motor Performance Test, Reading Readiness Evaluation, Chall Phonetic Analysis, Slosson Oral Reading Test (“SORT”), Informal Reading Inventory (“IRI”), Writing Sample and the Huntington Math Placement Exam. Parent Exhibit L-004-006.
22. During this evaluation, REDACTED provided REDACTED with the following testing accommodations in accordance with his April 29, 2021 IEP: extended time (double time on assessments longer than 45 minutes), breaks (5-minute break every 10 minutes [on assessments longer than 45 minutes]); and on-task focusing prompts as needed. Parent Exhibit F-013.
29. Based upon the results of REDACTED evaluation, REDACTED recommended a total of Five Hundred Seventy-Three (573) hours of tutoring to teach him the academic skills he was missing. Parent Exhibit L-002. Specifically, REDACTED recommended a total of Four Hundred Sixty-Three (463) hours of a verbal program (sixty [60] hours Core Reading program, one hundred ninety-eight [198] hours Splinter Skills; one hundred thirty-five [135] hours Vocabulary/Word Attack/Spelling, and seventy [70] hours Writing) designed to address REDACTED unique needs. One Hundred Ten (110) tutoring hours were recommended to address twenty-two (22) deficient math skills. Parent Exhibit L-002-003.
32. REDACTED received a “poor” Raw Score of 14 / Standard Score of 77 on the Slosson Visual Motor Performance Test. REDACTED struggled with copying the figures on this assessment correctly. This could be due to visual perception challenges and his difficulty thinking through multi-step problems. Parent Exhibit L-004.
33. The Reading Readiness Evaluation determines a student’s reading readiness based on the student’s individual knowledge and the examiner’s observations of the student. Although REDACTED was able to recognize both lower and capital letters, he had yet to fully acquire the ability to form all capital and lower-case letters. Parent Exhibit L-004.
35. During the February 2021 REDACTED evaluation, REDACTED was able to consistently identify consonants in blends/clusters and short vowels in context. He was also able to identify most, but not all consonants and short vowels in isolation. However, he struggled to identify short vowels in words, dictation, Silent E, Digraphs/Diphthongs, and Syllabication. All of these skills should have been acquired by the second grade. Parent Exhibit L-004.
36. The SORT measures the student’s ability to recall sight word vocabulary and the ability to pronounce words. A student is provided with different lists of words, beginning with easiest to hardest. You start asking the student to read words that are two levels back from their current grade. For example since REDACTED was in the third grade at the time of the evaluation, REDACTED started him on a first-grade list and then moved backwards until REDACTED scored a 20 out of 20 on the list. REDACTED was only able to read 37 words on this assessment, placing him at a grade level equivalence of 1.4, which was 2.7 grade levels below his desired grade level. Parent Exhibit L-004.
39. The Writing Sample evaluates grammar, spelling, punctuation, sentence structure, vocabulary, organization, detail development, logic, relevancy of material presented to the topic, clarity and style appropriate to grade level. REDACTED was expected to write an essay that included an introduction, detailed supporting paragraphs, and a conclusion paragraph and he was unable to do so. Parent Exhibit L-005. Writing the active form of reading, so our focus is first on phonics, sight words and reading comprehension. Once the student has acquired those skills, REDACTED can begin working on writing.
40. The Huntington Math Placement Exam measures a student’s math abilities in a non-multiple-choice format. REDACTED did not meet the expectations for the third grade. In fact, he exhibited a significant lack of understanding and knowledge with all skills tested, many of which should have been acquired by the third grade. Parent Exhibit L-005-006.
44. All REDACTED teachers are New York State certified for the population with whom they work. Thus, special education students are guaranteed a New York State certified special education teacher.
45. At REDACTED, REDACTED would work one on one with a teacher who meets his specific needs.
46. The cost of the above-referenced, individual tutoring is Ninety-Seven Dollars ($97.00) per hour. Parent Exhibit L-001. (P-M)
; and
1. I am the grandmother of REDACTED. I have personal knowledge of the facts herein. During the 2020-2021 school year I provided care for REDACTED during the school week. During the 2021-2022 school year, I also provided care to REDACTED both during the school week, and every weekend. I also provided care to REDACTED at least three days per week during the summers of 2020 and 2021.
2. In May 2017 I received a Masters in Adolescent Education. I also received a Post Baccalaureate in Secondary Education.
3. My daughter, REDACTED is REDACTED mother.
5. As a result, although I am not REDACTED legal guardian, REDACTED has advised the NYC-DOE on multiple occasions that all NYC-DOE staff have permission to speak to me regarding all topics concerning REDACTED. Additionally, REDACTED has repeatedly asked NYC-DOE staff to provide me with copies of all notices, Individualized Education Programs (“IEP”), report cards, progress reports, etc.
10. REDACTED is diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”), Oppositional Defiant Disorder, REDACTED. Parent Exhibit B-004.
11. REDACTED is classified by the NYC-DOE as a student with an Emotional Disturbance. Parent Exhibits B, F, I. During the 2020-2021 and 2021-2022 school years, REDACTED was enrolled at REDACTED, located at REDACTED.
13. By my own recollection, the NYC-DOE has failed to conduct any evaluations of REDACTED since at least 2019, despite multiple requests for evaluations made by both me and REDACTED.
42. However, the NYC-DOE’s failure to provide REDACTED with a FAPE with respect to the 2020-2021 school year began in July 2020. Although the CSE mandated Extended School Year (“ESY”) Services on REDACTED April 27, 2020 IEP, specifically, the same special education program/services as REDACTED received during the school year (Parent Exhibit B-0012-013), the NYC-DOE failed to provide REDACTED with any OT during the entirety of July, August, and most of September 2020. Additionally, the NYC-DOE failed to provide REDACTED with any mandated OT during the months of March, April, May and June 2021. Although I was aware of the NYC-DOE’s failure to provide REDACTED with his OT, I became fully aware of the extent of the NYC-DOE’s failure when I had an opportunity to review the OT records which REDACTED attorney obtained from REDACTED school. Parent Exhibit K-001-011.
100. In my opinion, based upon my own observations, as a direct result of the NYC-DOE’s failure to properly evaluate REDACTED, mandate appropriate and necessary related services, and failure to develop an appropriately ambitious IEPs targeting his unique needs with sufficient, appropriate, meaningful and measurable IEP goals, REDACTED failed to make meaningful educational progress and failed to achieve any of his 2020-2021 or 2021-2022 IEP goals and therefore the NYC-DOE denied him a FAPE for the 2020-2021 and 2021-2022 school years. (P-N)
; and
Whereas the DOE having failed to appear waived its right to contest that testimony and/or cross examine the Parents’ witness by failing to appear at the hearing; and
Whereas the Parent’s testamentary and documentary submissions are completely and unequivocally uncontroverted and need not be repeated herein in their entirety as they are annexed hereto for the benefit of the reader; and
INDEPENDENT EDUCATIONAL EVALUATION - “IEE”
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 record in this case evidence that the student has not been comprehensively evaluated since 2019; and
Whereas the DOE has not filed a DPC in this case to defend its failure to conduct the evaluations that were requested, to defend any evaluation that it has conducted, or its position that the student does not require an evaluation; and
Whereas, accordingly, I find that the Parent is entitled to the evaluations requested, to be conducted by the NYC-DOE as requested, 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 its own evaluations regarding any areas of suspected disabilities that the student may have; and, which the Parent may subsequently agree or disagree with; and
REQUEST FOR COMPENSATORY SERVICES
Whereas the Parent has submitted in evidence, completely uncontroverted evaluative evidence and uncontroverted testamentary evidence which supports the Parent’s request for compensatory services in this case (P-L, P-M & P-N); and
Whereas the DOE failed to appear at the hearing and defaulted on its statutory obligations, and said default constitutes a tacit concession that the student was denied a FAPE for the 2020-2021 and 2021-2022 school years; and
Whereas 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); and
Whereas 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.”; and
Whereas in the instant case, the student has been denied a FAPE for two consecutive school years, and as such, I find that the denial of FAPE in this case constitutes a gross violation of IDEA, which along with the uncontroverted testamentary and documentary evidence submitted by the Parent justifies an award of compensatory education services on behalf of the Parent; and
Whereas the DOE’s failure to appear at the hearing and its 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 as detailed below.
Now, therefore, it is hereby
ORDERED upon the DOE’s DEFAULT for its FAILURE TO APPEAR and after INQUEST 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 (573) hours of compensatory tutoring and (96) hours of compensatory occupational therapy, not to exceed the rate of $97.00 per hour, and reimburse the Parent, upon production of receipts, of all monies paid for tutoring services the Parent was forced to obtain due to the NYC-DOE’s failure to provide the student with a FAPE during the 2020-2021 and 2021-2022 school years, with the cost for those services the Parent was forced to obtain not to exceed the reasonable and fair market rate cost for these services in New York City; and it is further
ORDERED upon the DOE’s DEFAULT for its FAILURE TO APPEAR and after INQUEST 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 2022-2023 school year, including but not limited to an updated Social History, Classroom Observation, Speech Language Evaluation, Auditory Processing Evaluation, Occupational Therapy Evaluation, Physical Therapy Evaluation and an Assistive Technology Evaluation and a Neuropsychological Evaluation; and it is further
ORDERED upon the DOE’s DEFAULT for its FAILURE TO APPEAR and after INQUEST 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 2022-2023 school year; and it is further
ORDERED upon the DOE’s DEFAULT for its FAILURE TO APPEAR and after INQUEST 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: August 24, 2022 _______________________
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)