New York City Department of Education, Impartial Hearing Decision

FINAL DECISION - PARENT'S MOTION FOR SUMMARY JUDGMENT &

DOE RESPONSE & CROSS MOTION FOR SUMMARY JUDGMENT

Case Number: 164716

NYS Identifier Number NIA

Student's Name: ["Confidential"]

Date of Birth:

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 06/18/18, 09/27/18 & 01/28/19

Actual Record Close Date: 03/01/19

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Attorney DOE 06/18/18 (T) Attorney DOE 09/27/18 01/28/19 Attorney PARENT 06/18/18 (T) Attorney PARENT 09/27/18 01/28/19

Mother PARENT 09/27/18 01/28/19

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For # of Pages

01 Response & Cross Motion 12/04/18 DOE 11

A Motion for Summary Judgment 10/26/18 PARENT 19

B Reply 12/13/18 PARENT 07

Record Below 08/10/17 IHO 237

On May 29, 2018, I was appointed 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 and Part 200 of the Regulations of the New York State Commissioner of Education, concerning a dispute between the Parent of a year old student attending private school and the New York City Department of Education ("DOE") - District regarding the student's special education program. I was appointed as the result of a State Review Officer ("SRO") decision 17-034, dated August 10, 2017 that ordered the following:

IT IS ORDERED that the IHO's decision dated March 30, 2017 is modified, by reversing so much of the decision as found the district met its obligation to implement the student's IESP for the 2016-17 school year;

and

IT IS FURTHER ORDERED that the matter is remanded to the same IHO who issued the March 30, 20 17 decision, for further proceedings in accordance with this decision; and

IT IS FURTHER ORDERED that if the IHO who issued the March 30, 2017 decision is not available, another IHO shall be appointed in accordance with the district's rotational selection procedures and State regulations.

I was appointed after an unknown number of IHOs, including the IHO who issued the decision referenced above, recused themselves from this matter.

After having adjournments granted for cause or on consent, the matter was heard on June 18, 2018, September 27, 2018 and January 28, 2019. A list of the persons attending the subpoena hearing and the exhibits entered into evidence is annexed hereto.

BACKGROUND

The Parent's request for an enhanced rate payment for the student's receipt of

(5) hours per week of "SETSS" service for the student's 2016-2017 school year. As well as retroactive services for the services the student allegedly missed for the previous school year.

PARENT'S MOTION FOR SUMMARY JUDGMENT

The Parent moves for "Summary Judgment'' in this case. (P-A) The Parent acknowledges the "extensive" record that was made below, that resulted in and appeal and the SRO's remand. (T-201) The Parent also acknowledges that the IDEA does not address the rights of a provider or the DOE visa-a-vis a provider. (Id.)

The Parent argues that it was the responsibility of the DOE to deliver five periods of SETSS to the student and that the law requires the DOE to provide those services. (T-202)

DOE failed to offer the provider, who could provide the necessary services to the student and the Parent sought to continue the provision of the services by a provider who had been previously approved and paid by the DOE at an an enhanced rate of $110. (Id.) The Parent concedes that she has no signed contract with the provider and the DOE apparently now claims that the provider is barred by contract she has with the DOE from seeking more than $41.98 per hour. (T-203)

The Parent asserts that the DOE's claim against the provider cannot be heard under the IDEA. (T-203) In the 2014-2015 school year, the DOE told the provider that she was approved to service at the student at the rate of $110 per hour. (T-204) The CSE further told the provider she needed to get a waiver to work with the student, because she was a New York City public school teacher and essentially bound by the contract that she has with the agency. (Id.)

According to the Parent, it wasn't until October of 2016 that the CSE notified the Parent that they had identified approximately nine SETSS providers for the student. (Id.) The Parent then contacted each provider and all providers were unavailable, so she continued the student's service with the provider, most recently approved by the DOE back in 2014-2015. (T-205) The Parent has not paid for the services the provider gave to the student. (Id.) The provider found out that the DOE had an issue paying her an enhanced rate in June of 2018 and as a result, the Parent filed a DPC and an impartial hearing was held on January 9, 2017 and February 7, 2017.

(Id.) In a decision rendered on March 30, 2017 the IHO assigned denied reimbursement and funding for the student's provider at the enhanced rate of $110. (T-205-6) The Parent appealed that decision, and in a decision rendered by the SRO on August 10, 2017, the SRO found that the evidence in the hearing record did not support the IHO's determination that the District met its obligation to implement the student's April 26th IESP and remanded the case back to the IHO for a determination on the merits of the daim. (T-206)

It is noted that there is an assertion by the SRO that the SRO has an authority to remand cases. (T-206) But the law is clear that the IHO does not have authority to reopen or issue a decision once one has been rendered and that the decisions of an SRO do not set precedent.

(Id.) The law is vague and questionable as to whether or not the SRO, which is not an Article 6 or an Artide 3 body, but instead an administrative hearing officer, has the authority to remand the case back to an IHO. (Id.) It is well established that vagueness in the law makes that law a nullity. (T-207)

The Parent argues that there is no genuine issue of material fact and that she is entitled to judgment in this case as a matter of law. (Id.) Citing the DOE standard operating procedural manual from February of 2009, the Parent says that "if a DOE provider is not available, an authorization of SETSS services P3 authorization should be issued within five school days." (f-

208) Here, providers were either unavailable or not qualified to provide the student with SETSS services. (Id) According to the Parent, the provider understood that the enhanced rate came with the student and the provider still has a claim that she could bring against the Parent. (f-

210)

THE DOE'S RESPONSE & CROSS MOTION FOR SUMMARY JUDGMENT

The DOE argues that the facts do not sufficiently warrant the IHO to direct judgment against the DOE as a matter of law. (f-211 & D-1) The agency cross motions for summary judgment arguing that, (1), the Parent lacks standing to bring the claim, (2) that the provider, not the Parent, violated the terms of a contract with the DOE, (3) that the IHO lacks jurisdiction to determine this matter, (4) that the Parent lacks subject matter jurisdiction to demand relief because she failed to show harm or deprivation of appropriate equitable services, and (5) that the IHO heard the DOE's case and the Parent's case on January 9th, 2017 and February 17th,

2017 and rendered a decision denying the Parent's relief in its entirety on March 30, 2017 stating in part that the DOE recommended providers that were available and qualified to provide SETSS services to the student at the District's rate of $41.98 per hour. (T-211-2)

The DOE notes that on August 10, 2017 the SRO ordered the IHO's decision modified, by reversing so much of the decision as found, the District met its obligation to implement the student's IESP for the 2016/2017 school year and remanded the matter to the same IHO or another IHO under District rotation. (T-112) The issue in this case is whether the SETSS provider should be paid an enhanced rate of $110. (T-213)

The DOE further notes that the Parent has testified that the student has been amazingly successful with SETSS and that she agreed with the IESP that was created for that school year. (Id.) The Parent is quoted as testifying: "If I don't resolve this case with the DOE amicably, I have promised her that I will pay her out of my own pocket." (T-214) This was despite the fact that the Parent was fully aware that the provider was a DOE teacher. (Id.) On October 1, 2014 the provider signed and dated a contract with the DOE that included what it identifies as a mass waiver application, wherein the provider acknowledged and agreed that the provider would be compensated at the standard DOE rate of $41.98 per hour for providing SETSS services to school-aged students attending private schools within her geographic area in exchange for the opportunity to provide SETSS services in addition to earnings made as a DOE teacher and to be included on a list of SETSS provider in the DOE registry. (T-214-5) who is a director of compliance and contract management for the New York City Department of Education, Office of Related Services, who has proffered that under no circumstances is a DOE employee permitted to accept an enhanced rate. (T-215)

The DOE further argues that according to the Parent's testimony and the IHO, the Parent rejected several SETSS providers that were offered by the DOE for the 2016-2017 school year, either due to scheduling conflicts, strange resumes, or because the provider did not teach advanced math. (T-215) Essentially, it is the DOE's position that there was no provider that the Parent would have accepted in this case. (Id.) There was testimony from a specific provider who essentially said that no matter was what offered to the Parent it was not acceptable. (T-216) The Parent's testimony is completely devoid of any clinical information that would suggest the student was in need of SETSS, particularly for advanced math as alleged and the Parent repeatedly rejected qualified providers due to scheduling. (Id.) According to the DOE, all of the recommended providers were certified special education teachers who had weakened and evening hours available. (Id.)

The DOE argues that it is pure conjecture, that the provider would seek damages against the Parent as she is a DOE employee that knew or should have known she cannot accept any rate above the DOE standard rate. (T-217) It is noted that there is case law supporting the proposition that it is the Parent who bears the financial risk of a unilateral placement or in this case a private provider to provide SETSS services. (T-217-8) The DOE also notes that the Parent received the full mandated services provided by the provider, a qualified DOE provider during the 10-month period of the 2016-2017 school year at issue. (T-

218) There is no dispute between the Parent and the DOE regarding the sufficiency and appropriateness of the student's IESP. (Id.)

According to the DOE, the Parent in this case has failed to show she suffered any harm.

(T-219) Additionally, the Parent does not have subject matter jurisdiction and has failed to show any concrete financial or education harm, nor deprivation of services during the 10-month 2016- 2017 school year. (Id.) As such, there is no live dispute in this case. (Id.) The DOE states that the IHO may order relief to address the deprivation of educational services, but not as in this case what is essentially a claimed contractual harm by a DOE provider, absent any clear showing of liability for payment to the provider by the Parent. (T-220) That no contract exist in this case is conceded by the Parent. (T-220) What's more, an IHO does not have jurisdiction over types of claims outside of allegations involving whether an individual student received appropriate educational services, which includes a lack of jurisdiction over whether a student is part of a class, defined in a federal class action suit or whether a federal class action order has been violated and whether a party before the IHO is deemed a prevailing party for the purposes of an attorney fee award. (Id.)

THE PARENTS REPLY

The Parent replies that the DOE is trying to place the burden on the provider and the Parent of the for services it failed to provide. (T-221) The DOE never told the provider that she was not eligible to be paid an enhanced rate for services provided to the student and it has been the provider's understanding that the Parent would seek funding from the DOE for these services. (Id.) The provider said that there was a "course of conduct'' and a promise that she

'1ustifiably relied upon" when she agreed to provide the student's services. (T-221-2) The DOE offered the provider $11 0 per hour to provide SETSS services to the student, albeit years ago.

(f-222) Any contract dispute between the DOE and the provider is not an IDEA issue and the only relevant issues in this case are whether the DOE implemented the IESP. (T-223) The Parent concedes that she has no signed contract with the provider, only a verbal agreement and reliance that the provider would be paid an enhanced rate by the DOE. (T-224) There has been no compensation paid to the provider for the 2016-2017 school year. (T-226)

DECISION

It is evident that the parties agree the issues in this case fully litigated before the IHO below and that a decision was rendered. The SRO's position seems to be that it has to be remanded for a determination as to whether or not the DOE failed, to implement the IESP. But there is no dispute between the parties that the DOE offered numerous SETSS providers to the Parent which were rejected, either due to scheduling conflicts, strange resumes, or because the provider did not teach advanced math. (f-215) Essentially, it is the DOE's position that there was no provider that the Parent would have accepted in this case and there is testimony from a specific provider who essentially said that no matter was what offered to the Parent it was not acceptable. (T-215-6)

The DOE is charged with providing an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." (See Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted] and Grim, 346 F.3d at 379) Additionally, school districts are not required to "maximize" the potential of students with disabilities. (See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379 and Walczak, 142 F.3d at 132)

The DOE only has to provide services 'likely to produce progress, not regression,' and .

. . affords the student with an opportunity greater than mere 'trivial advancement."' (See Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; P. v.

Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008] and Perricelli, 2007 WL 465211, at *15) The IEP (here services) must be "reasonably calculated to provide some 'meaningful' benefit." (See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997] and Rowley, 458 U.S. at 192) The DOE must provide a program that is appropriately ambitious in light of the child's circumstances. (Endrew F v. Douglas

County School District, U.S. Sup. Ct., March 2017) It is noted that there is no dispute between the Parent and the DOE regarding the sufficiency and appropriateness of the student's

IESP. (T-218, P-A & D-1)

The Parent concedes that the DOE provided SETSS providers that spoke with the Parent and were interested in [possibly providing the student's services. (T-228-9) All of the recommended providers were certified special education teachers who had weakened and evening hours available. (T-216 & D-1) I do not find persuasive the Parent's argument that the SETSS provider needed special qualifications in math to service the student, in light of the IHOs finding below that they were appropriate and in light of the law's requirements as cited above. Indeed, the Parent's argument that the harm in this case is in the fact that the DOE did not actually provide SETSS services, is belied by her assertion that the provider did not get a penny for providing services and still has a legal claim against the Parents for those services. (T-232)

This is not truly a claim for a denial of FAPE under the IDEA, but instead a contract dispute between the Parent, the provider and the DOE. The Parent's further assertion that the Parent is supposed to get special education services at no cost or risk to herself is not supported by the law's holding that Parents who reject a school district's IEP (here SETSS providers) and choose to unilaterally place their child at a private school (here the private SETSS provider), without consent or referral by the local educational agency do so at their own financial risk. (T-232, see also Burlington, 471 U.S. at 373-74)

The Parent concedes that any contract issue between the parties is outside the scope of the IHO's authority but argues that the provider could still bring a claim against the Parent outside of the IDEA. (T-234) The Parent further asserts that she must exhaust all administrative remedies before she can raise the contract issues in either Supreme or Civil

Court. (T-235) But it is noted that the Parent in this case had a full hearing on the merits, appealed the IHO's decision denying her claim and the SRO "remanded" the case. The DOE argues that the SRO does not have the authority to "remand" cases. (T-247-9) The undersigned agrees.

The SRO often argues that state regulations explicitly authorize an SRO to remand a matter to an IHO to take additional evidence or make additional findings.

(See 8 NYCRR 279.10[c]; see F.B. v. New York City Dep't of Educ., 923 F. Supp. 2d

570, 589 [S.D.N.Y. 2013] [indicating that an SRO may remand matters to the /HO to address claims set forth in the due process complaint notice that were unaddressed by the /HO], citing J.F. v. New York City Dep't of Educ., 2012 WL 5984915, at *9 n.4

[S.D.N.Y. Nov. 27, 2012]; D.N. v. New York City Dep't of Educ., 2013 WL 245780, at *3 [S.D.N.Y. Jan. 22, 2013]} Yet, the law also holds that the decision of the SRO shall be based solely upon the record before the SRO and shall be final, unless an aggrieved party seeks judicial review. The decision of the SRO shall be binding upon the parties and the State Education Department with respect to the provision of special education to the student with a disability involved but shall not constitute binding precedent in any judicial action or proceeding or administrative appeal in any forum whatsoever. (See 8 NYCRR § 279.12)

What's more, an IHO's jurisdiction is limited by statute and regulations and there is no authority for an IHO to reopen an impartial hearing, reconsider a prior decision, or retain jurisdiction to resolve future disputes between the parties. (See SRO Nos. 17-

009, 16-065, 16-035, 15-073, 15-026, 12-096, 11-046, 11-014, 08-041, 08-024, 07-081,

06-133, 06-021, 05-056, 02-043, 98-16, see also, J.T. v. Dep't of Educ., 2014 WL

1213911, at *10 [D. Haw. Mar. 24, 2014]) Rather, the IDEA, the New York State Education Law, and federal and State regulations provide that an IHO's decision is final unless appealed to an SRO. (See 20 U.S.C. § 1415[i][1][A], Educ. Law§ 4404[1][c], 34 CFR 300.514[a] and 8 NYCRR 200.5U][5][v]) It is well settled that a statute, law or regulation is void for vagueness and unenforceable if it is too vague to be understood or if a term cannot be strictly defined, thus violating the vagueness doctrine.

Here, there appears to be a conflict in the regulations and case law as to whether the SRO has the authority to remand cases. The DOE has asserted that the SRO does not have the authority to remand and that as such, the IHO does not have jurisdiction to

IO hear this matter. (T-211-2 & D-1) I agree. It is also important to note that there are only approximately (6) to (8) IHOs currently taking cases in NYC with over 10,000 cases being filed yearly in New York City. Taking on a "remanded" case further burdens and already overly burdened case load in New York City that makes it impossible for cases to be appropriately adjudicated.

The record below indicates that this matter has been fully, fully lltigated concerning a deprivation of FAPE, the Parent's request for an enhanced rate for SETSS services, and whether or not the Parent has acted in good faith. The Parent concedes that the student did do exceptionally well with the SETSS services provided by a DOE employee, although not paid for by the DOE. (T-241) But It is noted that the Parent did not pay for those services either. It is evident that the Parent had some discussion with the provider. and planned to get her the enhanced rate, not for nefarious reasons, but because she believes that's what the provider is entitled to, based upon what she got paid in the past. However, the Parent's rejection of so many qualified SETSS providers provided by the DOE, raise a concern that she was not really considering those providers, but instead wanting to get her SETSS provider paid beyond what that provider agreed to except as payment from the DOE. It appears that this case was brought on behalf of the private SETSS provider, and not because the student was denied a FAPE.

In fashioning relief, IHOs retain the discretion to reduce or deny tuition funding or payment requests where there is collusion between Parents and private schools (here a private SETSS provider), or where there is evidence that the private school (here private SETSS provider) has artificially inflated Its costs; since the Parents have selected the unilateral placement and/or private provider, and their financial status is at issue the Parents have the burden of production and persuasion with respect to whether they are legally obligated for the student's tuition payments. (See Mr. and Mrs. A. v. New York City Dept. of Educ., 769 F. Supp.

2d 403, 406 (S.D.N.Y. Feb. 1, 2011) - emphasis added) Here, the Parent concedes that she has no signed contract with the provider and that no compensation was paid to the provider for the 2016-2017 school year. (T-224 & 226) Accordingly, I find that the Parent has "colluded" with the private SETSS provider in bringing this case and that she has not met her burden to receive the relief requested.

There is a question here as to whether or not the Parent is legally obligated to the SETSS provider for an enhanced rate of $110. If the provider were to bring a lawsuit, the Parent could easily tum her argument around and argue that the SETSS provider is bound by the agreement the provider signed with the DOE to receive only $41 per hour. Thus, significantly limiting any liability she may have to the provider. The SETSS provider has placed herself in a tough spot in terms of her conduct, because she is a DOE employee, subject to DOE regulations, and in fact has an agreement, where she waives getting an enhanced rate.

I do feel that based on the clear record and the DOE's admissions that there was a denial of FAPE for a month or so at the beginning of the school year. (T-250 & 256) The student's services should have been in place in the beginning of the school year. But the Parent's testimony that the student has been amazingly successful with SETSS and that she agreed with the IESP that was created for that school year, as well as the fact that she has no contract with the provider and has not paid her any compensation, in my opinion indicates that she and the student have not suffered a harm warranting the relief requested. (T-213 & D-1)

What's more, I agree with the DOE's assertion that the record indicates the Parent would not meet with the DOE recommended providers, who were available on the weekends and were qualified. (T-256 & D-1)

Summary judgment should only be applied when all ambiguities and all factual inferences that can rationally be drawn and resolved in favor of the party opposing summary judgment, show that there are no genuine issues of facts to be decided. (See Fed. R. Civ. P.

56(c) and Johnson v. Bd. of Educ. Of the Glen Falls Common Sch. Dist., 488 F. Supp. 2d 202, 205 (N.D.N.Y. 2007), citing Brown v. Henderson, 257 F.3d 246, 251 [2nd Cir. 2001]) Here, I opine that the matter was fully litigated before the IHO below and that the law regarding the

SROs authority to remand a case is vague.

For all of the reasons stated above, I find that the Parent's request for summary judgment must be denied and the DOE's cross motion for the same must be granted.

NOW, therefore, it is hereby

ORDERED that the Parent's request for relief is denied.

DATED: March 13, 2019

New York, New York

NOTICE OF RIGHT TO APPEAL

Within 35 days of the date of this decision, the parent and/or the Public­ School District has a right to appeal the decision to the 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 the Parent plans to appeal the decision a notice of intention to seek review shall be personally served upon the school district not less than (10) days before service of a copy of the petition for review upon such school district, and within (25) days from the date of the decision sought to be reviewed so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its appeal.

An appealing parties' petition for review shall be personally served upon the opposing party within (35) days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the (25-) or (35-) day period. (8 NYCRR § 279.2[b])

The rules of procedure for proceedings before an SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.