Impartial Hearing Decision

FINAL ORDER - DOE DEFAULT & INQUEST - PARENT SUBMISSIONS

FINDINGS OF FACT AND DECISON

Case Number: 242019

NYS Identifier Number: 591185

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Dates(s) of Hearing: 01/25/23, 03/01/23, 04/04/23, 05/10/23 & 06/22/23

Actual Record Close Date: August 01, 2023

Hearing Officer: Sharifa Milena Nasser

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

[REDACTED] Attorney PARENT 03/01/23 (V)

[REDACTED] Attorney PARENT 04/04/23 (V)

[REDACTED] Attorney PARENT 05/10/23 (V)

[REDACTED] District Representative DOE 05/10/23 (V)

[REDACTED] Attorney PARENT 06/22/23 (V)

[REDACTED] Parent PARENT 06/22/23 (V)

[REDACTED] District Representative DOE 06/22/23 (V)

DOCUMENTATION ENTERED INTO RECORD

A. Number/Letter Title Dated For # of Pages Due Process Complaint 11/10/22 PARENT 07 pages

B. IESP 12/04/20 PARENT 12 pages

C. Ten-Day Notice 11/10/22 PARENT 02 pages

On. January 06, 2023, 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 pages

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 June 22, 2023. On the impartial hearing date, the Parent appeared and the District appeared. 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 attorney, on or about November 10, 2022, and carried under New York City (“NYC”) Case No. 242019. The Parent herein alleges that the student was denied a “free and appropriate public education” (“FAPE”) for the school year in that the parent alleges that the DOE failed to implement the special education services recommended on the students IESP. The Parent sent their 10 Day Notice letter on November 10, 2022. The District did not provide any proof that they responded to the letter. (C) 2022-2023

At. the impartial hearing, the Parent seeks the following relief as per the student’s IESP: (a) A Bank of 120 Special Education Teacher Support Services (SETSS): services at a fair market rate (b) A Bank of 40 hours for Occupational Therapy at a fair market rate (c) A Bank of 40 hours for Speech Therapy at a fair market rate 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 June 22, 2023, 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 appeared but failed to put on a case and provide any evidence or witnesses 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 2022-2023 school year 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, 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 401 pages

at. 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 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 2022-2023 school year and that the Parent may be entitled to the relief she has requested. THE PARENT’S CASE The Parent had (1) witness testify on their behalf, who testified live direct testimony. The Parent also submitted (3) documents in evidence. In sum, substance and relevant part, the testamentary and documentary evidence for and against the Parent’s case is incorporated in the decision below. DOES’ DEFAULT The DOE failed to call any witnesses to testify on its behalf and did not submit any documents in evidence. The DOE did not submit any evidence to show that they had replied to the Parents 10 day Notice. 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} 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 2022-2023 school year and that the Parent may be entitled to the proven relief she has requested. The Parent testified about the services that were not received pursuant to the child’s IESP. (T-26)

I. find the Parent’s testimony to be credible and completely uncontroverted. APPROPRIATENESS OF 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 IESP or otherwise engaged in conduct that precluded the development of an appropriate IESP, 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 2022-2023 school year, that a bank of 120 hours of SETTS Direct Services, Group services in Yiddish, a bank of 40 hours of occupational therapy in English, 40 hours of speech language therapy, individual in Yiddish, to expire within 12 months of this order with the provider of said services to be a provider of the parents choosing with the provider to be paid by the district at fair market rate. 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: Queens, New York Sharifa Milena Nasser- IHO August 23, 2023

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)