New York City Department of Education, Impartial Hearing Decision

FINAL ORDER - DOE DEFAULT “NO APPEARANCE” & INQUEST - PARENT

SUBMISSIONS

Case Number: 181458

NYS Identifier Number N/A Student’s Name: [“Confidential”]

Date of Birth: [“Confidential”]

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 04/30/20

Actual Record Close Date: 10/23/20

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

“No Appearance” N/A DOE 04/30/20 (T)

[CONFIDENTIAL] Advocate PARENT 04/30/20 (T)

[CONFIDENTIAL] Mother PARENT 04/30/20 (T)

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For #of Pages

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

PARENT EXHIBITS

A. 02/13119 | Impartial Hearing Request 5 pages

B. 11/17118 | Retainer Agreement 2 pages

C. 1111911 | Individualized Education Services Program 11 pages

E. D Provider's Certificate 3 Parent Outreach 18/19 1 page

F. | Affidavit of Testimony and Services 04/27/20 3 pages

G. | Agency Parent Contract 04/29/20 1 page

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

On February 1, 2019, 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 (_ ) year old student attending a private school and the New York City - Department of Education (“DOE”) - District: |, 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 April 30, 2020. The DOE did not appear at the hearing. (T-4-5) 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 advocate(s), [CONFIDENTIAL] on or February 1, 2019 and carried under New York City (“NYC”) . The Parent herein alleges that the student was denied a “free and appropriate public education” (“FAPE”) for the 2018-2019 school year. At the impartial hearing, the Parent request the following relief: (a) | Continue to provide the student with (5) hours of special education teacher services in and pay his provider at a rate of $150 per hour of service, for the entirety of the student’s 2018-2019 school year; and (b) Provide the Parent with a related service authorization (RSA) to ensure that their son receives his mandated services; and (c) That the DOE recommend extended school year or twelve-month services; and (d) Any further relief the IHO finds just and appropriate.

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 April 30, 2020, and the DOE did not appear at the hearing, and the Parent having agreed to have this decision/order made on the basis of the submission of testamentary and documentary evidence pursuant to 8 NYCRR 200.5/j][3][xii][f] (P-F), which because the DOE did not appear the agency has waived its right to challenge via cross examination and the Parent’s unopposed documentary evidence (T-4-5); and Whereas the Parent appeared with her advocate(s), [“Confidential’] assigned and the DOE having failed to appear; and Whereas the DOE waived its right to a hearing on the merits; and a proposed “Final Order” consented to by the Parent based upon the Parent’s uncontroverted testamentary and documentary submissions, having been presented to this IHO on the record as being in the best interest of both parties (T-1-11); 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 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 submissions 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 affidavits pursuant to 8 NYCRR 200.5{j][3][xii][f], (P-F), and the DOE having failed to appear and thus waived its right to contest that testimony and/or cross examine the Parent’s witnesses (T-1-11); and Whereas the Parent's submissions are completely and unequivocally 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 this IHO having determined that the Parent’s consent to the manner of determining this “Final Order” was made knowingly, intelligently and voluntarily; and Whereas the Parent’s testamentary and documentary evidence, oral arguments, discussions, concessions and this order having been recorded and annexed hereto; and Whereas the party who defaults 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); and Whereas 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 SETSS are not defined in State or federal laws or regulations and are not identified on the State continuum of special education services. (See SRO No. 16-044); and Whereas a reference to the service as "direct" is in keeping with the language used in State regulations for consultant teacher services (See 8 NYCRR 200.6/d]); and Whereas State regulations distinguish between "direct consultant teacher services," which consist of "specially designed individualized or group instruction provided by a certified special education teacher . . .to.a student with a disability,” from "indirect consultant teacher services,” which consist of "consultation provided by a certified special education teacher . . .to regular education teachers" (See 8 NYCRR

200.1[m] [emphasis added]; see also 8 NYCRR 200.6[d]); and Whereas the Parent submitted in evidence an affidavit from the private provider that her agency provided the student with (5) hours per week of SETSS from September 13, 2018 through June 26, 2019 (P-F); and Whereas there is no evidence in the record that the Parent received a “DOE “P3” authorization for SETSS services at the established DOE rate; and Whereas the DOE “P-3” authorization for SETSS services state in relevant part:

“If you need assistance locating a provider, or if you have any questions, please contact the DOE person listed in Section 1 of this form.”; and Whereas the Parent’s efforts to secure a DOE provider amount to only (5) phone calls made between August 27, 2018 through August 30, 2018 (P-E); and Whereas there record does evidence the Parents compliance with the requirements of the DOE SETSS authorization form, but also does not evidence that she received the form; and Whereas equitable considerations are relevant to fashioning relief under the IDEA. (See Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194, M.C. v. Voluntown

Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000], and Carter, 510 U.S. at 16 [noting that ‘[cJourts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]); and Whereas the IDEA also provides that reimbursement may be reduced or denied when Parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the Parents. (See 20 U.S.C. § 1412[a][10][C][iii], 34 CFR 300.148[d], E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school] and C.L., 744 F.3d at 840 [noting that “[ilmportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]); and Whereas the Parent submitted in evidence a contract that she signed with the private provider, which references that it is for the 10-month 2018-2019 school year, and indicating the month (April) and day (1%), but not the year that it was notarized (P-G); and Whereas the contract does not indicate the number of hours the services are being contracted for (Id.); and Whereas the contract contemplates payment of the services by the DOE, but also asserts that the Parent shall pay for the services if the DOE does not pay (Id.); and Whereas “The fundamental basis of a valid, enforceable contract is a meeting of the minds of the parties, and, if there is no meeting of the minds on all essential terms, there is no contract.” (See Benicorp Ins. Co. v. National Medical Health Card Sys., Inc., 447 F.

Supp. 2d 329, 337 (S.D.N.Y. 2006); and Whereas it is a basic tenant of contract law that an offer must be so definite as to its material terms or require such definite terms in the acceptance that the performance to be rendered by each party is reasonably certain. (See Contracts 2" Edition, Calamari & Perillo); and Whereas the contract is void if the content of the agreement is unduly uncertain.

(Id.); and Whereas while “indefiniteness” in a contract may be cured by the subsequent conduct of the parties or by a subsequent agreement of the parties, there is no evidence in the record that such conduct or agreement by the parties has occurred in this case.

(Id.); and Whereas it has long been held, and it is well settled in the law that in cases of doubt or ambiguity, a contract must be construed most strongly against the party who prepared it and favorably to a party who had no voice in the selection of its language. (See 4 Williston, Contracts, § 621 and 10 NY Jur, Contracts, § 223); and Whereas here, there is no doubt that the relevant contract was drafted by the private agency; and Whereas accordingly, the ambiguity cited above concerning the amount of hours the agreement calls for, whether a new payment schedule is required in case of a default, or whether the entire balance under the agreement is due would be held against the private provider, not the Parent, who as a consequence would escape any liability under the agreement; and Whereas it is well established that 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, or where there is evidence that the private school has artificially inflated its costs, because since the Parents have selected the unilateral placement, 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); and Whereas there is no indication that the private provider has taken any measures to collect payment by way of invoices sent to the Parent, or by threatening and/or pursuing legal action against him for the fees owed; and Whereas under the circumstances, I find that the private provider contract really contemplates payment of the private provider fees by the DOE and not the Parent; and Whereas thus, the Parent herein is actually “straw person’ bring the instant claim on behalf of the private provider, not herself; and Whereas the private provider contract is ambiguous and indefinite in its terms; and Whereas it has long been held that where the contents of an agreement are unduly uncertain, no contract is formed. (See Restatement, Second Contracts § 32, 1 Corbin § 95 and 1 Williston § 37); and Whereas it is well settled that Parents who choose to unilaterally place their child at a private school or secure private services without consent or referral by the school district do so at their own financial risk. (See Carter, 510 U.S. at 15, Burlington, 471 U.S. at 373-74 and Forest Grove, 129 S. Ct. at 2496); and Whereas the United States Supreme Court in Burlington held that “retroactive reimbursement” of private educational expenses is appropriate as an available remedy under the IDEA. (See Burlington, 471 U.S. at pp. 370-71, Carter, 510 U.S. at 14-15, Gagliardo, 489 F.3d at 111 (2d Cir. 2007), explaining that parents who believe that their child has been denied a FAPE may, at their own financial risk, enroll the child in a private school and seek retroactive reimbursement for the cost of the private school], Diaz-Fonseca v. Commonwealth of Puerto Rico, 451 F.3d 13, 32, 40 (1st Cir. 2006), concluding that reimbursement under the IDEA allows parents to recover only actual, not anticipated, expenses for private school tuition and related expenses, Cerra, 427 F.3d at 192, noting the availability of "retroactive tuition reimbursement" under the IDEA, Muller v. Comm. on Special Educ. of East Islip, 145 F.3d 95, 106 (2d Cir. 1998), holding that compensation for "out of pocket expenses" was appropriate, Streck v. Bd. of Educ., 2009 WL 2163090, at * 2 (N.D.N.Y. July 17, 2009) and Emery v. Roanoke City Sch. Bd., 432 F.3d 294, 299 [4th Cir. 2005]); and Whereas while the IDEA provides that a court shall grant such relief that is determined to be appropriate (20 U.S.C. § 1415[i][2][C][iii], Forest Grove, 129 S. Ct. at 2488); and Whereas the IDEA does not expressly provide for prospective payment of tuition costs; and Whereas the IDEA does provide that “a court or a hearing officer may require the “school district” to reimburse the parents for the cost of “private school” enrollment if the court or hearing officer finds that the school district had not made a FAPE available to the child in a timely manner prior to that enrollment.” (See 20 U.S.C. § 1412[a][10][C][ii], 34 C.F.R. § 300.148[c] and SRO Nos.: 09-001, 07-032, 08-050 & 04-037); and Whereas there is no evidence in the hearing record indicating that, under the circumstances, the Parent has made any meaningful payments to the private provider, or that the private provider has ever sought payment of its fees for the 2018-2019 school year from the Parent, or that it has any real viable intention of doing so. (See S.W. v. New York City Dep't of Educ., 2009 WL 857549, at *8-*9 (S.D.N.Y. March 30, 2009]); and Whereas accordingly, I must find that the Parent cannot seek tuition reimbursement or prospective relief for the payment of private services on behalf of the private provider; and Whereas the evidence contained in the hearing record supports a finding that it was the private provider, not the Parent, who incurred the financial burden associated with the student's SETSS services for the 2018-2019 school year. (See S.W., 2009 WL 857549, at *7-*9, parent had no financial standing to sue for direct prospective payment to private placement where terms of enrollment contract absolved her of responsibility for paying tuition); and Whereas the private provider is not a party in this case and is, therefore, not entitled to relief under the IDEA. (Id.); and Whereas however, that the United States Court of Appeals for the Second Circuit has determined that under the pendency doctrine, school districts may be required to directly fund pendency placements (Bd. of Educ. v. Schutz, 290 F.3d 476, 482-84 [2d Cir. 2002] and Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d195, 200-01 (2d Cir. 2002) and that courts have awarded “prospective payment” to afford access to compensatory education. (See, e.g., Streck v. Bd. of Educ., 2008 WL 2229141 (2d Cir.

May 30, 2008) and Draper v. Atlanta Indep. Sch. System, 518 F.3d 1275, 1286 (11th Cir. 2008); and Whereas a public agency may, under certain circumstances, place a student in an approved private school, however if it does so, the placement must be a public expense and meet state standards. (See 20 U.S.C. §1412/[a][10][B]])

Whereas where a Parent is seeking “prospective” payment for their unilateral placement and/or services, the Parent bears the burden of production and persuasion with respect to whether the Parent has the financial resources to front the tuition costs.

(See Mr. & Mrs. A. v. New York City Dep't of Educ., 2011 WL 321137 at *22 (S.D.N.Y.

Feb. 1, 2011); and Whereas the Parent cannot assert a claim for the particular relief she has requested on behalf of a private school, or a private provider, which lacks standing under the IDEA to maintain a claim against the DOE in its own right. (See Emery, 432 F.3d at 299, Piedmont Behavioral Health Center LLC v. Stewart, 413 F.Supp. 2d 746, 755-56 (S.D. W.Va. 2006) and Malone v. Nielson, 474 F.3d 934, 937 [7th Cir. 2007])

The Parent might argue that he is entitled to direct funding under Connors v. Mills, 34 F.

Supp. 2d 795, 805-06 (N.D.N.Y. 1998); and Whereas however, in Connors, the Court dismissed the Parents’ claim for tuition and in dicta discussed the concept of “prospective” tuition payment after the Court made a finding that the school district conceded that it could not provide an appropriate education for the student and that the private placement could. (Id. at 34 F. Supp. 2d at 806)

Whereas in the case at bar, the Parent's efforts to secure a DOE provider are found to be cursory at best and insufficient to support a finding that there were no DOE providers available for the 2018-2019 year; and Whereas, for all of the reasons stated herein, I find that the Parent in this case is not entitled to an enhanced rate for SETSS services that the student received at his private school via a private provider that is allegedly paid $150 per hour. (See also 20 U.S.C. § 1412[a][10][C][ii], 34 C.F.R. § 300.403{c], Burlington, 471 U.S. 359; Carter, 510 U.S. 7, A.A. v. Bd. of Educ., 196 F. Supp. 2d 259 (E.D.N.Y. 2002) and SRO Nos.: 09-001, 08-050, 07-032 & 04-037); and Whereas there is no evidence in the hearing record to establish that the Parent has incurred any financial obligation to pay the difference between the enhanced rate and the DOE rate; and Whereas, therefore, even if the Parent prevailed on the merits of her claim, it would be unclear at this juncture whether or not any relief would be warranted absent evidence that the provider was owed additional compensation based on an agreement with the Parents or the DOE; and Whereas it is unnecessary to speculate on this state of affairs since the evidence in the hearing record does not support a finding that the DOE failed to make available to the student SETSS services on an equitable basis. (See Educ. Law § 3602-c[2]|[b][1]); and Whereas the IDEA specifically includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services. (See 20 U.S.C. § 1401[26], see also 34 CFR 300.34[al], [c][16]); and Whereas in addition, State law defines special education as “specially designed instruction .. . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability,” and requires school districts to provide disabled students with “suitable transportation to and from special classes or programs.” (See Educ. Law §§ 4401[1], 4402[4][a], see also Educ. Law § 4401[2] and 8 NYCRR 200.1[ww]); and Whereas specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education. (SRO No. 03-053); and Whereas if a CSE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the district must ensure that the student receives the necessary transportation at public expense. (See Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; see 8 NYCRR 200.1[ww]); and Whereas the State Education Department has indicated that a CSE should consider a student's mobility, behavior, communication, physical, and health needs when determining whether or not a student requires transportation as a related service, and that an IEP “must include specific transportation recommendations to address each of the student's needs, as appropriate.” (See “Special Transportation for Students with Disabilities,” VESID Mem. [Mar. 2005]); and Whereas other relevant considerations may include the student's age, ability to follow directions, ability to function without special transportation, the distance to be traveled, the nature of the area, and the availability of private or public assistance. (See Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1375 [11th Cir. 1997] and Malehorn v. Hill City Sch. Dist., 987 F. Supp. 772, 775 [D.S.D. 1997]); and Whereas when reviewing the transportation provisions made for a student by a district, the relevant question is whether the transportation arrangements are appropriate to meet the student's needs. (SRO No. 03-054); and Whereas in this case, there is no indication in the hearing record as to the student's need for special transportation during the relevant school year or any indication that special transportation was previously requested; and Whereas the student’s IESP dated November 19, 2018 in evidence does not indicate that the student should receive special education transportation services, but does mandate that the student receive SETSS services (5) times per week in during the student's 2018-2019 school year (P-C); and Whereas, in this case there is evidence in the hearing record as to how the student was transported to and from school each day during the relevant school years, and of his need for special education transportation services; and Whereas nevertheless, the hearing record does not support a finding that the district denied the student a FAPE due to the lack of provision for special transportation, although she remains entitled to receive those services; and Whereas however, the law mandates that she received special transportation and even if it did not, it would not constitute a determination regarding the student's entitlement to transportation as available to regular education students or suitable transportation as available to students attending nonpublic schools “for the purpose of receiving services or programs similar to special education programs recommended” by the CSE. (See Educ. Law 3635; 4402[4][[d]); and Whereas if the DOE has not done so already, it may consider providing transportation of the student to his private school as ordered below in accordance with the above; and Whereas the completely uncontroverted testamentary and documentary evidence submitted by the Parent need not be repeated here as it is annexed hereto for the benefit of the reader.

Now, therefore, it is hereby

ORDERED upon the DOE’s DEFAULT FOR FAILING TO APPEAR at the HEARING 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 pay the cost of the student’s receipt of SETSS services in , (5) times per week, at the established DOE rate, for the entirety of the student's 2018-2019 school year and that the DOE issue related service authorizations (RSAs), for the student’s receipt of his mandated services as indicated on his IESP dated November 19, 2018, (PC), the entirety of the student’s 2018-2019 school year; and ORDERED upon the DOE’s DEFAULT FOR FAILING TO APPEAR at the HEARING and after INQUEST a copy of the student IESP dated November 19, 2018 shall accompany this decision and order for reference (P-C); and ORDERED upon the DOE’s DEFAULT FOR FAILING TO APPEAR at the HEARING 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 2020-2021 school year; and it is further

ORDERED upon the DOE’s DEFAULT FOR FAILING TO APPEAR at the HEARING 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 2020-2021 school year; and it is further

ORDERED upon the DOE’s DEFAULT FOR FAILING TO APPEAR at the HEARING 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: October 29, 2020

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)