New York City Department of Education, Impartial Hearing Decision

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

SUBMISSIONS

Case Number: 184471

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: 05/07/20

Actual Record Close Date: 11/09/20

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

“No Appearance” N/A DOE 05/07/20 (T)

[CONFIDENTIAL] Advocate PARENT 05/07/20 (T)

[CONFIDENTIAL] Mother PARENT 06/23/20 (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 07/01/19 3 pages

B. | Affidavit of Testimony 05/05/20 3 pages

C. 11113/1 | Individualized Education Services Program 10 pages

E. D Provider's Certificate 2 Parent Outreach 17/18 1 page

F. | Upgrade Resources Agreement 05/05/20 1 page

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

On August 13, 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. 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 May 7, 2020. The DOE did not appear at the hearing. (T4-6) 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 advocate(s), [CONFIDENTIAL] on or about July 1, 2019, and carried under New York City (“NYC”) Case No. 184471. The Parent herein alleges that the student was denied a “free and appropriate public education” (“FAPE”) for the 2017-2018 school year because she could not find a DOE SETSS provider. At the impartial hearing, the Parent request the following relief: (a) An order that the DOE continue to provide the student with SETSS services and although the student’s IESP recommends only (1) period of SETSS the Parent will assert that her son has always received (5) periods of SETSS in past school years; and (b) An order that the services must be provided to the student by a special education teacher who has experience and training to work with student's whose profile is similar; and (c) An order that the student must be paid at an enhanced rate of $150 per hour of service; and (d) An order that the DOE provide the Parent with Related Service Authorizations (RSAs) in order to ensure that the student receives his mandated related services in a timely manner from an appropriate provider; and (e) An order that the DOE recommend that the student receive extended school year or twelve-month services; and (f) Any further relief the IHO finds just and proper.

FINAL ORDER - DOE’S DEFAULT “NO APPEARANCE” - FAILURE TO APPEAR

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 an “impartial hearing” before this IHO on June 23, 2020, and which time the DOE appeared but left the hearing before the Parent presented her case (T-4-6) and the Parent agreed to have this decision/order made on submission of oral arguments and testamentary and documentary evidence; and The Parent having appeared with her advocate(s), [CONFIDENTIAL], advocate [CONFIDENTIAL] assigned and having provided testimony via affidavit pursuant to 8 NYCRR 200.5{j][3][xii][f], and the DOE having failed to appear at the hearing (T-4-6 & PB); and The Parent thus to agreeing to conduct an inquest regarding her damages and the relief she seeks, and this “Final Order” consented to by the Parent based upon her testamentary and documentary submissions, having been presented to this IHO on the record as being in the best interest of the Parent; 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-4-6); and Whereas the DOE failed to appear for the impartial hearing as scheduled, failed to file and serve an answer, or submit a “Prior Written Notice” in this case. (See 20 U.S.C. 1415(f)(3)(e) and T-4-6 & P-B); and Whereas “Prior Written Notice’ meaning written statements developed in accordance with Section 200.5(a) of the Regulations of the Commissioner of Education, and provided to the parents of a student with a disability a reasonable time before the school district proposes to or refuses to initiate or change the identification, evaluation, or educational placement of the student or the provision of a free appropriate public education to the student; and Whereas silence in a responsive pleading is an admission, or that a counterclaim in federal practice is compulsory in the answer or deemed waived. (See New York Practice, 4" Edition §§223 & 224, citing Federal Rules of Civil Procedure, Rule 13(a) & Cummings v. Dresher, 18 N.Y.2d 105, 108, 271 N.Y.S.2d 976, 218 N.E.2d 688, 690 (1966) and additionally, as a general matter, the parties to an impartial hearing are obligated to comply with the reasonable directives of the Impartial Hearing Officer ( “IHO”) regarding the conduct of the impartial hearing. (SRO No. 05-026, 04-103 and 04

061); and Whereas an IHO may require the parties to be present at the impartial hearing.

(8 NYCRR 200.5(j)(3)(xiii) and an IHO’s order to the Parent (here the DOE) to attend the impartial hearing in order to be questioned is a reasonable directive that obligates the agency to comply. (SRO No. 09-073); and Whereas the parties’ appearance is integral to the administration of an impartial hearing and at an impartial hearing, the IHO is authorized to administer oaths and to issue subpoenas in connection with the administrative proceeding (8 NYCRR

200.5{j|[3][iv]) and the IHO may ask questions of attorneys or witnesses for the purposes of clarification or completeness of the hearing record. (8 NYCRR

200.5[j][3][vii]); and Whereas the Parents, school authorities, and their respective attorneys or representatives, have an opportunity to present evidence, compel the attendance of witnesses, and to confront and question all witnesses at the impartial hearing. (8 NYCRR 200.5{j][3][xii]) and the IHO may take direct testimony by affidavit in lieu of in hearing testimony, provided that the witness giving such testimony shall be made available for cross-examination (8 NYCRR 200.5{j][3][xii][f]} and none of these processes can occur without the participation of the parties; and Whereas an IHO’s dismissal of a DPC with prejudice, based on the failure of the party to prosecute and comply with reasonable directives issued during the proceeding, has been held appropriate under the circumstances of the case. (SRO No. 04-061); and Whereas under New York law, a party’s failure to show up at the scheduled time for trial may entitle the opposing party to a default judgment. (CPLR § 3215(a); and Whereas the party who defaults in 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) 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 here, the DOE did not appear at the hearing or proffer any evidence that it has offered the student a FAPE, this amounting to a tacit concession that the agency did not offer the student a FAPE; and Whereas although it would be fundamentally unfair to allow either party to rely solely on the submission of documents in meeting its burden under law, where those documents are rife with double, triple and even unidentified hearsay sources, that cannot be cross examined; and Whereas while compliance with technical rules of evidence is not required in administrative hearings, under certain circumstances, the receipt of hearsay evidence may be so prejudicial as to have a tendency to deprive a party of fair hearing. (See Strain _v. Sarafan, 57 A.D.2d 525, 393 N.Y.S.2d 572, N.Y.A.D. (1977), where the hearsay testimony was of vital importance and should have been subjected to cross-examination by the petitioner...the petitioner was deprived of a meaningful hearing,_ Dukes v. New York City Housing Authority, 63 A.D.2d 690, 404 N.Y.S.2d 889, N.Y.A.D.

(1978), holding that the excessive reliance on hearsay evidence effectively denied petitioner the right to cross-examine adverse witnesses, Claim of Evans, 254 A.D.2d 564, 678 N.Y.S.2d 696, N.Y.A.D. (3 Dept. 1998), (where in an unemployment compensation proceedings, administrative law judge (‘ALJ’) properly exercised discretion to exclude hearsay evidence to protect employer's fundamental right of cross-examination, where claimant proffered written hearsay statement, authored by acquaintance of the employer’s president, which allegedly indicated that claimant did not resign but was fired, but the acquaintance failed to answer subpoena directing him to testify at hearing, thereby denying employer the opportunity to cross-examine him on the statement, and Alvarado v. State of New York, 110 A.D.2d 583, 488 N.Y.S.2d 177 (1*' Dept. 1985), holding that a license suspension hearing against a boxer and his managers was faulty because of a lack of an opportunity “to cross-examine certain witnesses whose reports were introduced into evidence without their testifying, in violation of SAPA Section 306, subd. (3).” (Id. at 585, 488 N.Y.S.2d at 179); and Whereas here the DOE did not appear at the hearing, did not present a case-in-chief and made no substantive effort to controvert the testamentary and documentary evidence submitted by the Parent and the credibility of the testamentary and documentary evidence was not rebutted by the agency and the documentary evidence is clearly relevant and material to the issues to be determined; and Whereas I find the documentary and testamentary evidence submitted by the Parent in this case to be credible and completely uncontroverted and conclusive in this case; and Whereas as noted above, the DOE’s failure to present a case at the hearing is a concession that it denied the student a FAPE and that the Parent is entitled to the relief she seeks and this leaves, as the primary issue to be resolved through impartial hearing, what relief and/or compensatory education remedy, if any, is available and appropriate to remediate the denial of aFAPE. (SRO No. 17-033); and Whereas it is noted that the DOE was required under the due process procedures set forth in New York State law, to address its burdens in the due process hearing context by describing its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate relief and/or compensatory education remedy that most reasonably and efficiently could place the student in the position that he would have been but for the denial of a FAPE. (See Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 457 [2d Cir. 2015], cert. denied, 136 S. Ct. 2022 [2016], quoting Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [noting that the "ultimate award [of compensatory education] must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place’"]); and Whereas when, as here, the DOE does not present any case at the hearing, the hearing, the hearing process essentially becomes an “inquest” as to the appropriate relief; and Whereas the DOE has conceded liability by failing to present a case and meet its burden under the law because New York State law has placed the burden of production and persuasion at an impartial hearing on the school district, unlike states which align the burden of production and persuasion consistent with Schaffer v. Weast, 546 U.S.

49, 58-62 [2005]; and Whereas it is not an IHO's responsibility to craft the DOE’s position regarding the primary issue in the case, for the denial of FAPE and the undersigned finds that the DOE failed to adhere to the requirements of the law, has denied the student in this case a FAPE and that the Parent is entitled to the relief she has requested; and Whereas when turning to the question of whether the DOE should be required to reimburse and/or pay for the private educational services and relief requested for the student, because the services offered by the DOE were inadequate or inappropriate, and the relief sought and services selected by the Parents are appropriate and equitable considerations support the Parent’s claim (Burlington, Florence and Cerra, Supra), the Parent need only demonstrate that the requested services are specially designed to meet the unique needs of the student, supported by such services as are necessary to permit her to benefit from the instruction. (See Gagliardo, 489 F.3d at 112; see Frank.

G., 459 F.3d at 364-65); and Whereas a private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs. (See Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129 and Matrejek, 471 F. Supp.

2d at 419); and Whereas a Parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (See Carter, 510 U.S. at 14); and Whereas the private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-014 and 01-105); and Whereas the Parents also need not show that the placement provides every special service necessary to maximize the student's potential. (See Frank G., 459 F.3d at 364-65) and when determining whether the parents’ unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]); and Whereas there is no request for compensatory educational services in this case and in either case an IHO cannot determine the amount of compensatory education that a student requires unless the record provides him with sufficient “insight about the precise types of education services the student needs to progress.” (Mary McLeod Bethune Day Acad. Pub. Charter Sch., 555 F. Supp. 2d 130, 50 IDELR 134 [D.D.C. 2008] citing Branham v. District of Columbia, 427 F.3d 7, 44 IDELR 149 [D.C. Cir. 2005]); and Whereas pertinent findings to enable an IHO to tailor the ultimate award to the student’s unique needs should include the nature and severity of the student’s disability, the student's specialized educational needs, the link between those needs and the services requested, and the student's current educational abilities. (See Branham v. District_of

Columbia, 427 F.3d 7, 44 IDELR 149 [D.C. Cir. 2005], see also Mary McLeod Bethune Day Acad. Pub. Charter Sch., 555 F. Supp. 2d 130, 50 IDELR 134 [D.D.C. 2008]); and Whereas the Parent has the burden of “propos[ing] a well-articulated plan that reflects the student’s current education abilities and needs and is supported by the record.” (See Phillips v. District of Columbia, 2010 WL 3563068, at *6, 55 IDELR 101 [D.D.C. Sept.

13, 2010] quoting Friendship Edison Pub. Charter Sch. Collegiate Campus v. Nesbitt ( “Nesbitt II"), 583 F. Supp. 2d 169, 172, 51 IDELR 125 [D.D.C. 2008]); and Whereas the record in this case is completely uncontroverted by the DOE and supports a finding that the Parent is entitled to the relief sought as indicated below (supra) and it is unfortunate that the agency forced the Parent in this case to bring the matter to a hearing, when it offered no evidence that it provided the student with a FAPE and then did not challenge the Parents’ assertion regarding the appropriateness of the relief sought; and Whereas the DOE did not initiate this impartial hearing (DPC); 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 testamentary and documentary submissions that sustains a finding that the Parents have not cooperated with the CSE; and Whereas the Parent has submitted the testimony of (1) witness on direct examination via affidavit pursuant to 8 NYCRR 200.5{j][3][xii][f] (P-B); and Whereas the DOE having waived its right to contest that testimony and/or cross examine the Parents’ witness by failing to appear at the hearing (T-4-6); and Whereas the Parent's testamentary and documentary submissions are completely and unequivocally uncontroverted and need not be repeated herein in their entirety as they are annexed hereto for the benefit of the reader; and

PARENT’S REQUEST FOR “SETSS” SERVICES - ENHANCED RATE

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 “IESP” dated January 9, 2018 that mandates the student receive SETSS services for (5) periods per week (P-D), an affidavit from the private provider dated January 28, 2020, that in relevant part states that the student “is” receiving (5) hours of SETSS services at the rate of $150 per hour, from January 2019 through June 2019 for a total of $13,500 (P-F); and Whereas when the NYC-DOE mandates SETSS services on an IESP it issues 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 private SETSS provider testified that her agency provided the student with (5) hours per week of SETSS from September 1, 2017 through June 14, 2018 at the rate of $150 per hour (P-B); and Whereas the Parent testified that she had reached out to the principle of the private school and asked him if he had anyone that he could recommend, he recommended the private SETSS agency, conceded that she did not pay the agency and then testified: “I had paid them to get on board. I have no recollection how much money it was. It was not -- it was minimal. | don't remember exactly.”; (T-11); and Whereas the Parent also testified that there is a written agreement that she would have to pay the private agency (T-12 & P-F); and Whereas the IESP that is in evidence is from the 2013 school year and recommends (1) period of SETSS per week (T-13 & P-C); and Whereas the Parent also testified that she did not remember attending any meetings with the DOE from 2013 to 2017 and did not file any DPCs during those years (T-15-6); and Whereas the Parent’s efforts to secure a DOE provider amount to only (5) phone calls, all made from Monday, August 7, 2017 through Sunday, August 13, 2017 (P-E); and 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 ‘[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 submit in evidence a “contract” dated May 5, 2020, for services allegedly rendered two years prior during the 2017-2018 school year, on the private provider’s letterhead, wherein she states that she agrees to pay $150 per hour for the student’s SETSS services, “if’ the New York City Department of Education fails to do so.” (P-F); and Whereas there is no contract that indicates the actual number of hours the services are being contracted for; and Whereas there is no viable enforceable contract signed by both parties in evidence that contemplates payment of the services by the DOE, or that assert that the Parent shall pay for the services if the DOE does not pay; 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 viable and enforceable contract drafted by the private agency; and Whereas, in the purported “contract” drafted by the private provider, any ambiguity 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 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 terms are 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 2019-2020 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 reimbursement or prospective relief 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 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, 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 2017-2018 year (P-E); 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. (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, 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 November 13, 2013 mandates that the student receive (1) period of SETSS services per week (P-C); 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 for its FAILURE TO APPEAR 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 (1) period of SETSS services at the established DOE rate, for the entirety of the student’s 2017-2018 school year, and that the DOE shall provide the Parent with “RSAs’” for the student’s receipt of the mandated services on his IESP dated November 13, 2013; and it is further

ORDERED upon the DOE’s DEFAULT for its FAILURE TO APPEAR and after INQUEST that a copy of the student’s IESP dated November 13, 2013 shall accompany the decision/order for reference (P-C); and ORDERED upon the DOE’s DEFAULT for its FAILURE TO APPEAR 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 2021-2022 school year; and it is further

ORDERED upon the DOE’s DEFAULT for its FAILURE TO APPEAR 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 for its FAILURE TO APPEAR 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 13, 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)