New York City Department of Education, Impartial Hearing Decision

CASE NUMBER:591541 – NYC:242324

FINDINGS OF FACTS & DECISION - DOE DEFAULT & INQUEST

Case Number: 242324

NYS Identifier Number 591541

Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Dates(s) of Hearing: 02/14/23

Actual Record Close Date: 02/16/23

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

[REDACTED] Attorney DOE 02/14/23 (V)

[REDACTED] Attorney PARENT 02/14/23 (V)

[REDACTED] Mother PARENT 02/14/23 (V)

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For # of Pages

N/A N/A N/A DOE N/A

PARENT EXHIBITS

Parent

I.D.

Title

Date

Pages

Date Admitted

A Impartial Hearing Request 11/15/22 4pp.

B Individualized Education Services Program 4/5/22 16pp.

C Individualized Education Services Program 5/6/21 15pp.

D Annual Educational Report 3/10/22 4pp.

E Parent Affidavit: [MOTHER] 1/31/23 3pp.

F Provider Affidavit: [PROVIDER] 1/31/23 3pp. ***Parent’s Exhibit “F” was withdrawn on the Record***

N/A N/A N/A IHO N/A

On January 9, 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 and 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 Parents of a (4) year old student attending a public school and the New York City - Department of Education (“DOE”) - District: 14, regarding the student’s special education program. I was appointed after the appointment of at least one other IHO was rescinded. A list of the persons who appeared at the hearing 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 via her attorneys, [REDACTED] and received at the Department of Education Impartial Hearing Office (“DOE-IHO”) on or about November 15, 2022. The DPC is carried under New York City (“NYC”) Case No. 242324. Therein, the Parent alleges that the DOE has failed to provide the student with a “free and appropriate public education” (“FAPE”) for the 2022-2023 school year by failing to implement the student’s mandated “SEIT” services. At the impartial hearing, the Parent seeks the following relief:

(a) A finding that the NYC-DOE deprived the student of a FAPE under the IDEA, the ADA, Section 504, and the New York State Special Education statutes; and

(b) A finding that the NYC-DOE significantly impeded the Parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE and caused a deprivation of educational benefits; and

(c) An order that the student be provided with an appropriate IEP that addresses the above-noted concerns, and is fully implemented by the DOE; and

(d) An order that the student be provided compensatory services of an amount, type, and scope to be determined by the hearing officer due to the failure to provide a FAPE in the past; and

(e) An order for other relief in the discretion of the hearing officer as is warranted by the evidence; and

(f) Payment of attorney’s fees and expenses.

THE DOE’S CASE The DOE did not call any witnesses to testify on its behalf and did not submit any documents in evidence. (T-21) The DOE did not defend “FAPE” and did not successfully challenge the presumption in the law that the Parent has cooperated with the agency. (T-32-9) In sum, substance and relevant part, the testamentary and documentary evidence for and against the DOE’s case is incorporated in the decision below.

THE PARENT’S CASE The Parent called (1) witness to testify on her behalf, on direct testimony via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f]. (P-E) The DOE briefly cross examined the affiant. (T-32-9) The Parent also submitted (5) documents in evidence. The DOE did not object to the Parent’s documents being received in evidence. (T-17) In sum, substance and relevant part, the testamentary and documentary evidence for and against the Parent’s case is incorporated in the decision below.

FINDINGS OF FACTS & DECISION - DEFAULT & INQUEST

IDEA ensures that students with disabilities are afforded a free and appropriate public education (“FAPE”). (20 U.S.C. § 1400 & Schaffer v. Weast, 126 S.Ct. 528 [2005]) A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a comprehensive written IEP. (20 U.S.C. 1401(8) & 141(d) and 34 C.F.R. § 300.13) The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. (Schaffer, 126 S.Ct. 528, 537)

The DOE may be required to reimburse Parents for their expenditures for private educational services obtained for a student, if the services offered by the DOE were inadequate or inappropriate, the services selected by the Parents are appropriate and equitable considerations support the parent’s claim. (Sch. Comm. Of Burlington v. Dept. of Educ., 471 U.S. 359 (1985), Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2nd Cir. 2005])

The first step is to determine whether the DOE offered to provide the student with a FAPE. (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2nd Cir. 2000]) A FAPE is offered to a student when (a) the DOE complies with procedural requirements set forth in IDEA and (b) the IEP developed by the CSE through the procedures set forth in IDEA, is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. V. Rowley, 458 U.S. 176, 206-7 [1982]) The student’s recommended program must also be provided in the least restrictive environment (“LRE”). (20 U.S.C. § 1412(a)(5)(A), 34 C.F.R. § 300.550(b), 8 NYCRR §200.6(a)[1])

The Parent bears the burden of showing that the private school placement selected is appropriate. (SRO Nos.: 95-57, 94-29 & 93-34) The Parents must show that the private school placement offers an educational program that meets the student’s special education needs. (Burlington, 471 U.S. at 370 & SRO No. 94-20) The private school need not be approved by the state educational agency to provide instruction to children with disabilities. (Florence County School District Four et. al. v. Carter, 510 U.S. 7 [1993]). It is also not required that the private school employ certified special education teachers or have its own IEP for the student. (SRO No. 94-20)

Finally, the IHO must consider whether equitable considerations favor the Parents' request for tuition reimbursement. State Review Officer (“SRO”) Decision 06-004 holds:

Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that petitioners 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 tuition reimbursement. (Application of a Child with a Disability, Appeal No. 04-049).

In Burlington, the Court found that Congress intended retroactive reimbursement to Parents by school officials as an available remedy in a proper case under the IDEA. (Burlington, 471 U.S. at 370-71, Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186 at 192 [2d Cir. 2005]) “Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance” had it offered the student a FAPE. (Burlington, 471 U.S. at 370-71, 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)

DOE DEFAULT

The DOE failed to call any witnesses to testify on its behalf, did not submit any documents in evidence, 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) & T-21) “Prior Written Notice” means 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.

It is noted that silence in a responsive pleading is an admission, and 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])

The DOE has the burden of production and persuasion at an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c]) Here, the DOE did not proffer any evidence that it has offered the student a FAPE. (Supra) This amounts to a concession that the agency did not offer the student a FAPE. As previously noted, the DOE did not serve and file an answer in the case, nor did the agency serve the Parent with “Prior Written Notice”, which would provide either a denial of the Parent’s allegation, or some explanation for the agency’s failure to provide a FAPE. (See 20 U.S.C. 1415(f)(3)[e])

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. 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)

However, here the DOE did not present a case-in-chief and did not controvert the documentary evidence submitted by the Parent. (Supra) The credibility of the testamentary and documentary evidence was not rebutted by the agency and the testamentary and documentary evidence is clearly relevant and material to the issues to be determined. I find the testamentary and documentary evidence submitted by the Parent in this case to be credible and uncontroverted in this case.

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 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 2022-2023 school year and that the Parent may be entitled to the proven relief she has requested.

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])

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).

Where sought as relief, 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) 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)

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) 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)

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"]])

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:

The student’s mother testified on direct examination via affidavit and stated the following:

1. In November of 2022, an impartial due process hearing request was submitted on my behalf by the Law Offices of [REDACTED], P.C. I have reviewed the hearing request and all the allegations contained therein and can attest that they are all true as if more fully stated under oath in this affidavit.

5. For the 2021-2022 school year, she attended a Pre-Kindergarten program at [REDACTD]. A pre-school IEP dated May 6, 2021 recommended a full time "Special Class Integrated Setting (1 0:1:1 )" along with Speech-Language Therapy (twice per week for 30 minutes per session on a 1:1 basis) and Occupational Therapy (twice per week for 30 minutes per session on a 1:1 basis). This IEP was not implemented during the 2021-2022 school year.

6. On or about April 5, 2022 the CSE convened and continued to recommend a full time "Special Class Integrated Setting (10:1:1)" along with Speech-Language Therapy (twice per week for 30 minutes per session on a 1:1 basis) and Occupational Therapy (twice per week for 30 minutes per session on a 1: 1 basis). This IEP has not been implemented consistently.

8. [REDACTED] struggles across various academic areas and presents with global delays.

9. According to her pre-school IEP dated May 6, 2021: "[REDACTED]'s overall level of cognitive functioning is significantly delayed as compared to children her age... Significant delays were indicated in [REDACTED]'s fine-motor skills, socialization skills, communication skills and daily living/self-care skills... Results of the CARS2 indicate mild to moderate symptoms of Autism Spectrum Disorder... [REDACTED] presented with qualitative impairment in her overall communication skills and social skills... She made non-functional, repetitive vocalizations... [REDACTED] presented with significantly below age-level frustration tolerance, attention span and concentration skills."

10. Her April 5, 2022 IEP states, "[REDACTED] presents with severe delays in her overall language including expressive and receptive language skills, pragmatic language and play skills. [REDACTED] exhibits difficulties transitioning... She has great difficulty expressing her needs since she is severely language delayed. She would cry, whine, kick, yell, scratch or throw herself on the floor when she is frustrated or upset. [REDACTED] is unable to self-soothe when she becomes upset and she does not maintain eye contact with her teachers... [REDACTED] has difficulty manipulating scissors and is unable to cut out objects without hand-over-hand assistance."

11. [REDACTED] attended [REDACTED] during the 2021-2022 school year. She was not placed in a Special Class Integrated Setting (10:1:1) and mandated related services were not consistently provided during this time, in violation of [REDACTED]' s IEP. There was a significant lapse in [REDACTED]'s Speech-Language Therapy services beginning in December 2021 due to the provider leaving the school.

12. In September of 2022, [REDACTED] entered a pre-school setting at P.S. [REDACTED]. While she has been placed in a smaller classroom setting and is receiving Speech-Language Therapy services for the 2022-2023 school year, she has not been provided with any Occupational Therapy services, in violation of her IEP.

13. The DOE has consistently failed to implement [REDACTED]'s IEP during the 2021-2022 and 2022-2023 school years and has failed to provide her the services she requires.

14. She should be provided compensatory services to make up for the failure to implement her IEP during the 2021-2022 and 2022-2023 school years.

On cross examination, the witness testified that "Compensatory" to her means any type of financial and/or makeup services. (T-33) To her understanding that the DOE should provide some type or form of repayment for the services the student missed. (T-34) The student should receive all her services that the IEP stated she should have. (T-35) At this point, the Parent’s attorney proffered that the (360) hours of one-on-one SEIT services sought for the student is a calculation based on (180)-day school year and (2) hours per school day. (T-37) There was no re-direct examination of the witness. (T-39)

The Burlington/Carter analysis need not be applied to the relief requested by the Parent in this case. The Parent did not unilaterally place the student in a private school or seek reimbursement for her expenses related to services that she unilaterally obtained without the consent of the DOE.

As noted above, the burden of proof is on the school district during an impartial hearing, except that a Parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c] and M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]) In this case, the Parent requested that the DOE be directed to provide the services mandated by her IEPs dated May 6, 2021 (P-C), and April 5, 2022 (P-B) There is no basis for requiring the Parent to prove that the services she sought were appropriate for the student. (See Educ. Law § 4404[1][c]) Accordingly, once it is determined that the DOE has failed to offer the student a FAPE, we must next determine what appropriate remedy, if any, should be provided to the Parent based upon evidence presented in the hearing record.

It has been long held in the law that "[A]dmissions by a party of any fact material to the issue are always competent evidence against him [or her], wherever, whenever, or to whomever made." (See Reed v. McCord, 160 N.Y. 330, 341 [1899]) However, merely showing the statement in the report (here the recommendations made by the NYC-DOS in its own document, i.e., the IEPs) is admissible under the admissions exception is not enough to admit it into evidence. Rather, a foundation for the admission of the report itself as a business record must be established. (See Yassin v. Blackman, 188 A.D.3d 62 [2nd Dept. 2020]) Here, the DOE and the Parent agreed that the document be received in evidence. (T-17) As such, the student’s IEPs dated May 6, 2021 (P-C), and April 5, 2022 (P-B) are deemed admissions by the DOE as to the student’s needs.

What’s more, the law does not require that the Parents’ placement be perfect, it only requires that the Parents’ placement be appropriate. (See Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 (3d Cir.1999) (holding that “the test for the parents' private placement is that it is appropriate, and not that it is perfect”) 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]) (emphasis added)

This standard is well below those other recognized standards of review in the law such as “beyond a reasonable doubt”, “clear and convincing evidence”, “preponderance of the evidence”, “substantial evidence” or even “rational basis.” The holding in the Endrew F case, that an IEP must offer more than diminimis services, applies to the school district, not the Parent. The record, as accurately summarized by the Parent above and adopted in this decision and order, supports a finding that the relief she seeks is appropriate to meet the”reasonable” standard for a finding that they were an appropriate remedy for the denial of FAPE for the student’s 2022-2023 school year.

NOW therefore, it is hereby

ORDERED upon the DOE’s DEFAULT and after INQUEST that the DOE’s default constitutes a denial of FAPE for the student’s 2022-2023 school year and 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 receipt of all of the services she is mandated to receive pursuant to her IEPs dated May 6, 2021 (P-C), and April 5, 2022 (P-B), but in no case less than (360) hours of one-to-one SEIT services, (48) sessions of (1:1) speech and language therapy for (30) minutes per session, and (64) sessions of (1:1) occupational therapy for (30) minute sessions, with all of these services to be paid for at a cost not to exceed the reasonable and fair market rate cost for such services in New York City, for the entirety of the student’s 2022-2023 school year; and it is further

ORDERED upon the DOE’s DEFAULT and after INQUEST that the DOE shall also conduct a re-evaluation of the student in all areas of her suspected disabilities not evaluated within the last two years, for the 2023-2024 school year; and it is further

ORDERED upon the DOE’s DEFAULT and after INQUEST 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 2023-2024 school year; and it is further

ORDERED upon the DOE’s DEFAULT and after INQUEST that any of the other relief sought by the Parent not addressed by this decision is found to be either agreed upon by the parties, withdrawn by the Parent, outside the scope of the IHO’s authority or unsupported by the record.

DATED: February 16, 2023 _____________________________

New York, New York Edgar De Leon - I.H.O.

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)