NY IHO #183516: New York City... | Special Education Law

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

SUBMISSIONS

Case Number: 183516

NYS Identifier Number N/A

Student’s Name: - To be

Edited & Removed by the

NYC-DOE

Date of Birth: [“Confidential”]

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 06/04/20

Actual Record Close Date: 11/23/20

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

“No Appearance” N/A DOE 06/04/20 (T)

[CONFIDENTIAL] Attorney PARENT 06/04/20 (T)

[CONFIDENTIAL] Mother PARENT 06/04/20 (T)

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For # of Pages

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

PARENT’S EXHIBITS

Ex. Date Document Pages

A 06/14/2019 Due Process Request 3

B 02/08/2019 IESP 11

C 06/04/2020 Affidavit of [Confidential] 1

D Undated List of Provider’s certifications 2 E 02/15/2019- List of calls to SETSS Providers 1

02/21/2019

F 08/05/2019 Educational Progress Report 2

G 12/23/2019 Invoices 4

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

On or about June 19, 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 June 4, 2020. The DOE did not appear at the hearing. (T-5-6) 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), [CONFIDENTIAL] on or about June 14, 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) Scheduling a pendency and impartial hearing and issue an order for the student awarding (6) times per week per week of enhanced rate SETSS services retroactively for the 2018-2019 school year; and

(b) Allowance of prospective payment and funding to the student’s SETSS provider/agency for (6) times a week of enhanced rate SETSS services for the full 2018- 2019 school year; and

At the hearing, the Parent indicated that her request for “pendency” was a typographical error. (T-7-8) At this point the request at the impartial hearing is limited to agreed services between the Parent and the DOE from February 22, 2018 through the end of the school year. (T-9)

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-C), 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-5-6); and

Whereas the Parent appeared with her attorney(s), [“Confidential”] assigned and the DOE having failed to appear at the hearing (Id.); 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 the same; 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-C), and 91) witness who testified live, 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-5-6); 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 dated June 1, 2020, who testified as follows:

Six 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 February 22, 2019 until June 30 ,2019 will be

$18,900. This estimate is based on 18 weeks of services, 6 hours weekly, at a rate at $175 per hour. (P-C)

; and

Whereas the student’s mother testified that she agreed to pay the private agency

$175 per hour and that the private agency did bill her (T-18); and

Whereas the student’s mother further testified that she did make any payments to the private agency because she reached out to the attorney to see “if we could do something” (Id.); and

Whereas the student’s mother also testified that she did not have a written agreement with the private agency, that she did not know when she received invoices, “every month, every two months”, that she contacted the DOE in August and spoke to “ ” seeking help to find a provider, that she never sent anything in writing to the DOE, that she received a form from the Agency authorizing her to procure SETSS services, that she signed the form but does not know where it is (T-16-23); and

Whereas the undersigned did not find the testimony of the student ’s mother to be entirely credible (Id.); and

Whereas there is evidence in the record that the Parent received a “DOE “P-3” 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) alleged phone calls on Friday, February 15, 2019, Monday, February 18, 2019, Tuesday,

February 19, 2019, Wednesday, February 20, 2019 and Thursday, February 21, 2019 (P-E)

Whereas there record does not evidence the Parent’s 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 "[c]ourts 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 "[i]mportant 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 enter into written agreement with the private provider and her testimony regarding her oral agreement did not provide the material elements of any such oral agreement; and

Whereas the Parent’s testimony did not indicate the number of hours the services are being contracted for (Id.); and

Whereas the Parent’s testimony really contemplates payment of the services by the DOE, despite the alleged oral agreement; and

Whereas the “invoices” submitted in evidence were not invoices submitted to the Parent, but instead invoices that were submitted to the DOE and in relevant part state:

I hereby certify that I have provided services on the dates for the duration indicated herein. I understand that when completed and filed, this form becomes a record of the NYC Department of Education (DOE) and is relied upon by the DOE to make payment and any material misrepresentation may subject me to criminal, civil, and/or administrative action.

Submit original invoices to: New York City Department of Education Impartial Hearing Order Implementation Unit 65 Court Street - Room 1503

Brooklyn, New York 11201 ATTN:

PLEASE NOTE: FAILURE TO COMPLETE ALL FIELDS MAY RESULT IN

THE DELAY OF PAYMENT. (P-G)

; 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 2nd 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, or that the Parent has made pay payments to the private agency, or credible testimony of her intention to do so should she not prevail at the hearing. (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”, which is really just an affidavit, was drafted by the private provider; and

Whereas accordingly, the ambiguity cited above concerning the amount of hours the affidavit 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 any alleged 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 Parent’s testimony, the alleged “oral agreement” and the invoices submitted in evidence 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 “oral agreement’ 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” en rollment 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 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 unilate ral 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 $175 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 student’s IESP dated February 8, 2019 mandates that the student receives SETSS services (6) periods per week in English (P-B); and

Whereas the testamentary and documentary evidence submitted by the Parent need not be repeated here in its entirety as it is annexed hereto for the benefit of the reader.

Now, therefore, it is hereby