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FINAL ORDER - DOE DEFAULT & INQUEST - PARENT SUBMISSIONS
Case Number: 182439
NYS Identifier Number N/A Student’s Name: - To be Edited and Removed by the NYC-DOE
Date of Birth: [Confidential]
District:
Hearing Requested By: Parent
Dates(s) of Hearing: 04/28/20
Actual Record Close Date: 11/23/20
Hearing Officer: Edgar De Leon
NAMES AND TITLES OF PERSONS WHO APPEARED
Name Title For Date
[CONFIDENTIAL] DOE Representative DOE 04/28/20 (T)
[CONFIDENTIAL] Advocate PARENT 04/28/20 (T)
DOCUMENTATION ENTERED INTO RECORD
Number/Letter Title Dated For #of Pages
N/A N/A N/A DOE N/A
PARENT’S EXHIBITS
A. | Impartial Hearing Request 04/09/19 5 pages
B. | Individualized Education Services Program 08/20/18 10 pages
C. | Retainer Agreement 01/08/19 2 pages
E. D Provider's Licenses 3 | Affidavit of Services 01/07/19 1 page
F. Parent Outreach 18/19 1 page
G. 01/21119 | Progress Repoat 2 pages
H. | Corrected Affidavit 06/26/19 1 page
I. 18119 Affidavit of Testimony 3 pages
N/A N/A N/A IHO N/A
On May 10, 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 an (_) year old student attending a private school and the New York City - Department of Education (“DOE”) - District: |, regarding the student’s special education program. I was appointed after the recusal of at least one other IHO. 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 28, 2020. 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), the [CONFIDENTIAL] on or about April 9, 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) An order that the DOE continue to provide the student with special education teacher support services for (5) “hours” and pay his SETSS provider at the rate of $150 per hour of service for the student’s 2018-2019 school year; and (b) That the DOE provide “related service authorizations” (“RSAs”) to ensure that the student receives his mandated services; and (c) | Anextended 12-month school year; 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 28, 2020, and this decision being made on the basis of the submission of testamentary evidence pursuant to 8 NYCRR 200.5]j][3][xii][f] (P-E, P-H & P-I), which the DOE did not cross examine (T-4-7) and the Parent’s unopposed documentary evidence (T-7); and Whereas the Parent appeared with her advocate(s), [CONFIDENTIAL], advocate [CONFIDENTIAL] assigned and the DOE by its representative, [CONFIDENTIAL]; 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-1-12); 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 submit any testamentary or documentary evidence to meet it burden under the law (T-4-7); 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 that sustains a finding that the Parent has not cooperated with the CSE; and Whereas the Parent has submitted the testimony of (3) witnesses on direct examination via affidavits pursuant to 8 NYCRR 200.5/j][3][xii][f], (P-E, P-H & P-l), and the DOE having declined to cross examine the witnesses (T-7); and Whereas the Parent's testamentary and documentary submissions are uncontroverted and need not be repeated herein as they are annexed hereto for the benefit of the reader; and Whereas the DOE has failed to meet its burden under the law and the Parent's submission clearly reflects that the relief sought meets the unique needs of the student, supported by such services as are necessary that permits the student to benefit from that relief. (Gagliardo & Frank G., supra); and Whereas there is no evidence that the Parent has not cooperated with the DOE; and Whereas the parties’ oral arguments, discussions, concessions, testamentary and documentary evidence and this order having been recorded and annexed hereto; and Whereas 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 student's “IESP” dated August 20, 2018 mandates that the student receive (5) “periods” of SETSS services per week in (P-B); and Whereas the Parent submitted in evidence an affidavit from the private provider agency dated “June 10, 2019”, at the end of the 2018-2019 school year that in relevant part states as follows: Five times a week for the 2018-2019 academic school year.
The estimate amount to be charged for the services being rendered to [STUDENT NAME], from September 5, 2018 until June 30,2019 will be $35,000. This estimate is based on 40 weeks of services, 5 hours weekly, at a rate at $775 per hour. (emphasis added) (-P-E); and Whereas the Parent submitted a second affidavit in evidence from the same private provider agency, this time dated “July 29, 2019”, wherein the affiant amends his previous affidavit and states that “The estimate amount to be charged for the services being rendered to [STUDENT NAME], from September 5, 2018 until February 28, 2019 will be $21,875.” (P-H); and Whereas the Parent submitted the affidavit of the actual private SETSS provider which states in relevant part: “[AGENCY NAME] provided [STUDENT NAME] with (5) hours per week, of Special Education Teacher Support Services ("SETSS") from September 5, 2018 through June 30, 2019 (the school year).”...”The rate per hours for these SETSS services is $150 dollar amount for 18-19 school year.” (P-I); and Whereas when the NYC-DOE approves a student for SETSS services it provides the Parent with a “DOE “P-3” authorization for SETSS services at the established DOE rate; and Whereas there is no evidence that the Parent complied with the DOE’s SETSS Authorization Form instructions that state in relevant part: “/f 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 one a day from Friday August 10, 2018 through Tuesday August 14, 2018, which included a Saturday and a Sunday (P-D); and Whereas there record does evidence the Parents compliance with the requirements of the DOE SETSS authorization 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 did not submit in evidence a contract that she signed with the private provider, or any evidence of a legal obligation on her part to pay the private provider agency; 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 evidence that the private school (here, the private agency) has artificially inflated its costs from $150 to $175 (Supra), because since the Parents have selected the 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 private services. (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 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 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 an enhanced rate for the private provider agency, because the record does not establish a legal obligation to pay the private provider agency; 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 2019-2020 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, 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 he has requested on behalf of the private school (here the private agency), 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 he receives via the private provider agency. (See 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, AA. 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 student’s IESP dated August 20, 2018 mandates that the student receive (5) “periods” of SETSS services per week in (P-B); and Whereas the DOE’s default constitutes a concession of a denial of FAPE and the uncontroverted testamentary and documentary evidence submitted by the Parent and annexed hereto supports the Parent's request for relief as detailed below.
Now, therefore, it is hereby
ORDERED upon the DOE’s DEFAULT 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 directly pay the cost of the student’s receipt of (5) periods of SETSS services at the established DOE rate, for the entirety of the student’s 2018-2019 school year; and it is further
ORDERED upon the DOE’s DEFAULT and after INQUEST that the DOE shall conduct evaluations of the student in all areas of his suspected disabilities, including but not limited to a speech and language evaluation, not evaluated within the last two years, for his 2021-2022 school year; and it is further
ORDERED upon the DOE’s DEFAULT 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 2021-2022 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 “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 27, 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)