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FINAL ORDER - DOE DEFAULT & INQUEST - PARENT SUBMISSIONS
Case Number: 249826
NYS Identifier Number N/A Student’s Name: [REDACTED]Date of Birth: [REDACTED]
District: [REDACTED]
Hearing Requested By: Parent
Dates(s) of Hearing: 10/23/23
Actual Record Close Date: 11/06/23
Hearing Officer: Edgar De Leon
NAMES AND TITLES OF PERSONS WHO APPEARED
Name Title For Date
[REDACTED] Attorney DOE 10/23/23 (V)
[REDACTED] Attorney PARENT 10/23/23 (V)
[REDACTED] Observer PARENT 10/23/23 (V)
[REDACTED] Mother PARENT 10/23/23 (V)
[REDACTED] Mandarin Interpreter PARENT 10/23/23 (V)
DOCUMENTATION ENTERED INTO RECORD
Number/Letter Title Dated For # of Pages
N/A N/A N/A DOE N/A
PARENT EXHIBITS
A. Impartial Hearing Request July 3, 2023 6 pages
B. Individualized Education Program November 5, 2021 31 pages
C. Affidavit of [NAME] August 23, 2023 1 page
D. Teacher’s Certification Undated 2 pages
E. Agreement for SETSS September 1, 2023 1 page
N/A N/A N/A IHO N/A
On July 6, 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 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 [REDACTED] year old student attending a public school and the New York City - Department of Education (“DOE”) - District: [REDACTED], 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 October 23, 2023. 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 July 3, 2023, and carried under New York City (“NYC”) Case No. 249826. The Parent herein alleges that the student was denied a “free and appropriate public education” (“FAPE”) for the 2013-2024 school year. At the impartial hearing, the Parent request the following relief: (a) A pendency hearing and issue an order requiring the NYC-DOE to continue the student's special education and related services under the student's automatic pendency entitlement; and (b) An impartial hearing and issue an order for the student awarding (7) sessions per week of special education teacher support services at an enhanced rate for the entire 12- month 2023-2024 school year; and (c) Allowance of funding for payment to the student's special education teacher provider/agency for the provision of (7) sessions per week of special education teacher support services at an enhanced rate for the entire 12-month 2023-2024 school year; and (d) Awarding all related services and aides on the IEP for the entire 12-month 2023-2024 school year and (i) related services authorizations for such services if accepted by the parent's chosen providers; or (ii) direct funding to each of the parent's chosen providers at the rate each charges, even if higher than the standard NYC-DOE rate for such service; and (e) Such other and further relief as is appropriate. Order on Pendency
Pendency is not disputed in this case and as such, the Parent is entitled to have the program and services the student is mandated to receive pursuant to his IEP dated November 20, 2020, paid for by the NYC-DOE, from the date the Parent filed her DPC on July 3, 2023, to the date of this decision and order below, the cost of which shall not exceed the reasonable and fair market rate for those services in New York City. (T-7-11)
FINAL ORDER
The Parents’ DPC having been duly filed pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 USC § 1415(f)(3), Article 89 of the New York State Education Law, Part 200 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973; and Notice having been duly given to the DOE; and The matter having come on for a final “impartial hearing” before this IHO on October 23, 2023, and this decision being made on the basis of the submission of documentary evidence and testamentary evidence pursuant to 8 NYCRR 200.5[j][3][xii][f] (P-C), which the DOE not cross examine and the Parent’s unopposed documentary evidence (T-7-9); and Whereas the Parent appeared with her attorney(s), [REDACTED], attorney [REDACTED] assigned and the DOE by its attorney [REDACTED] assigned; and Whereas the parties thus to agreeing to 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 (T-8-9); and
NYC-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 Whereas the NYC-DOE having failed to submit any testamentary evidence, or documentary evidence to meet it burden under the law (T-7-11); and
APPROPRIATENESS OF THE RELIEF SOUGHT
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 that sustains a finding that the Parent has not cooperated with the CSE; and Whereas the Parent has submitted the testimony of (1) witness on direct examination via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f], (P-C) and the NYC-DOE having no objection to the testimony and declined to cross examine the affiant (T-8-9); and Whereas the Parent’s testamentary and documentary submissions are completely uncontroverted and need not be repeated herein in its entirety as they are annexed hereto for the benefit of the reader; and Whereas the NYC-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 for the student’s 2023-2024 school year and the completely uncontroverted testamentary and documentary evidence submitted by the Parent and annexed hereto supports the Parent’s request for relief; and Whereas in sum, substance and relevant part, the testimony on behalf of the Parent by the student’s provider is as follows:
I, [NAME] affirm that the student [STUDENT NAME], DOB: [REDACTED] is receiving 7.5 hours of bi-lingual Mandarin SETSS services per week by bilingual Mandarin SETSS provider [NAME] at the rate of $225 per hour for the months of July 2023 through June 2024 through [PROVIDER AGENCY NAME] Centers. (P-C) Now, therefore, it is hereby
ORDERED ON DEFAULT BY THE NYC-DOE AND AFTER INQUEST and upon
its 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 (7.5) periods of SETSS services at a rate not to exceed $225 per hour for the entirety of the student’s 12-month 2023-2024 school year; and it is further
ORDERED ON DEFAULT BY THE NYC-DOE AND AFTER INQUEST that
pursuant to the “pendency” provisions of the law, the Parent is entitled to have the program and services the student is mandated to receive pursuant to his IEP dated November 20, 2020, paid for by the NYC-DOE, from the date the Parent filed her DPC on July 3, 2023, to the date of this decision and order below, the cost of which shall not exceed the reasonable and fair market rate for those services in New York City (T-7-11); and it is further
ORDERED ON DEFAULT BY THE NYC-DOE AND AFTER INQUEST Awarding
all related services and aides on the IEP dated November 5, 2021 (P-B), for the entire 12-month 2023-2024 school year and (i) that the NYC-DOE shall provide related services authorizations for such services if accepted by the parent's chosen providers; or (ii) direct fund these services the cost of which shall not exceed the reasonable and fair market rate for those services in New York City; and it is further
ORDERED ON DEFAULT BY THE NYC-DOE AND AFTER INQUEST that the
NYC-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 2024-2025 school year; and it is further
ORDERED ON DEFAULT BY THE NYC-DOE AND AFTER INQUEST that the
CSE shall upon completion of all of the student’s necessary evaluations, 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 2024-2025 school year; and it is further
ORDERED ON DEFAULT BY THE NYC-DOE 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: November 17, 2023
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)