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FINDINGS OF FACTS & DECISION - DOE DEFAULT & INQUEST
Case Number: 184642
NYS Identifier Number N/A Student's Name: [“Confidential”]
Date of Birth:
District:
Hearing Requested By: Parent
Dates(s) of Hearing: 02/05/20
Actual Record Close Date: 06/26/20
Hearing Officer: Edgar De Leon
NAMES AND TITLES OF PERSONS WHO APPEARED
Name Title Eor Date Attorney DOE 02/05/20 Attorney PARENT 02/05/20 Attorney PARENT 02/05/20
Mother PARENT 02/05/20 Spec. Ed. Teacher PARENT 02/05/20 Program Director PARENT 02/05/20
On July 24, 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 February 5, 2020. The DOE and the Parent opted to submit a written closing statements that were received on April 2, 2020. (D-4 & P-FF)
A list of the persons appearing at the hearing and the documents received in evidence in annexed hereto.
BACKGROUND
This case was initiated as the result of a written Due Process Complaint (“DPC”)
made by the student's Parent via her attorney(s), and received at the Department of Education Impartial Hearing Office (“DOE-IHO”) on or about July 1, 2019. The DPC is carried under New York City (“NYC”) Case No. 184642. The Parent in this case alleges that the student has been denied a “free and appropriate public education” (“FAPE”) for the 2019-2020 12-month school year. At the impartial hearing, the Parent seeks the following relief: (a) tuition and costs at the private school; and (b) — transportation to and from school (with limited travel time) or the costs of transportation to and from school (with limited travel time); and (c) up to (20) hours per week of individual, home-based special education instruction (ABA - 1:1, supervised by a BCBA who shall spend at least (2) hours per week working directly with the student); and (d) weekly home supervision meetings for BCBA and ABA therapist to review program data and update the student’s programs - (2) hours per week; and (e) speech and language therapy up to 5x60 minutes weekly (1:1); and (f) parent counseling and training individually for (1) hour per week, in the home and community; and (g) | occupational therapy up to 5x60 minutes weekly (1:1); and (hn) | a compensatory education award for any and all educational and/or pendency services that the student was entitled to but did not receive, all as part of a 12-month program.
The parties resolved the issue of pendency on their own. (T-11-2) The parties agreed that the student is designated for services on a 12-month school year basis. (T16)
THE DOE’S CASE
The DOE did not call any witnesses to testify on its behalf and submitted only (1) documents in evidence (T-7-9 & 26) and did not object to the Parent’s exhibits with the exception of one. (T-23-4) The DOE did not make an opening statement. (T-12) The testamentary and documentary evidence for and against the DOE’s case in default is incorporated in the decision below.
THE PARENT’S CASE
The Parent called (2) witnesses to testify on her behalf, none of whom testified on direct examination via affidavit pursuant to 8 NYCRR 200.5/[j][3][xii][f]. The DOE did cross examine the Parent’s witnesses. (T-47-55 & 87-99) The Parent also submitted (30) documents in evidence. The DOE did not object to any of the Parent's documents being received in evidence with the exception of one. (T-23-4) The testamentary and documentary evidence for and against the Parent's case is incorporated in the decision below.
FINDINGS OF FACTS & DECISION - DOE DEFAULT & INQUEST
IDEA ensures that students with disabilities are afforded a free and appropriate public education (“FAPE”). (20 U.S.C. § 1400 & Schaffer v. Weast, 126 S.Ct. 528 [2005]) A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP. (20 U.S.C. 1401(8) & 141(d) and 34 C.F.R. § 300.13) The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. (Schaffer, 126 S.Ct. 528, 537)
The DOE may be required to reimburse Parents for their expenditures for private educational services obtained for a student, if the services offered by the DOE were inadequate or inappropriate, the services selected by the Parents are appropriate and equitable considerations support the parent’s claim. (Sch. Comm. Of Burlington v. Dept.
of Educ., 471 U.S. 359 (1985), Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2"° Cir. 2005])
The first step is to determine whether the DOE offered to provide the student a FAPE. (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2° Cir. 2000]) A FAPE is offered to a student when (a) the DOE complies with procedural requirements set forth in IDEA and (b) the IEP developed by the CSE through the procedures set forth in IDEA, is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. V. Rowley, 458 U.S. 176, 206-7 [1982]) The student’s recommended program must also be provided in the least restrictive environment (“LRE”). (20 U.S.C. § 1412(a)(5)(A), 34 C.F.R. § 300.550(b), 8 NYCRR §200.6(a)[1])
The Parent bears the burden of showing that the private school placement selected is appropriate. (SRO Nos.: 95-57, 94-29 & 93-34) The Parents must show that the private school placement offers an educational program that meets the student's special education needs. (Burlington, 471 U.S. at 370 & SRO No. 94-20) The private school need not be approved by the state educational agency to provide instruction to children with disabilities. (Florence County School District Four et. al. v. Carter, 510 U.S. 7 [1993]). It is also not required that the private school employ certified special education teachers or have its own IEP for the student. (SRO No. 94-20)
Finally, the IHO must consider whether equitable considerations favor the Parents’ request for tuition reimbursement. State Review Officer (“SRO”) Decision 06-004 holds: Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties’ compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties’ positions, and like matters” (Wolfe _v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that petitioners 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 _ tuition reimbursement. (Application of a Child with a Disability, Appeal No. 04-049).
In Burlington, the Court found that Congress intended retroactive reimbursement to Parents by school officials as an available remedy in a proper case under the IDEA.
(Burlington, 471 U.S. at 370-71, Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186 at 192 [2d Cir. 2005]) “Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance” had it offered the student a FAPE. (Burlington, 471 U.S. at 370-71, 20 U.S.C. § 1412[a][10][C]ii] and 34 C.F.R. § 300.148)
The DOE failed to call any witnesses to testify on its behalf, submitted only (1) document in evidence, failed to file and serve an answer or serve a “Prior Written Notice” in this case, and did not object to the Parent's documentary evidence with the exception of one document. (See 20 U.S.C. 1415(f)(3)(e) & T-7-9, 23-4 & 26) “Prior Written Notice” means 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.
It is noted that silence in a responsive pleading is an admission, and 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])
The DOE has the burden of production and persuasion at an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement.
(See Educ. Law § 4404[1][c]) Here, the DOE did not proffer any evidence that it has offered the student a FAPE. (Supra) This amounts to a concession that the agency did not offer the student a FAPE. As previously noted, the DOE did not serve and file an answer in the case, nor did the agency serve the Parent with “Prior Written Notice’, which would provide either a denial of the Parent’s allegation, or some explanation for the agency’s failure to provide a FAPE. (See 20 U.S.C. 1415(f)(3)[e])
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. 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)
However, here the DOE did not present a case-in-chief and did not controvert the documentary evidence submitted by the Parent. (Supra) The credibility of the documentary evidence was not rebutted by the agency and the documentary evidence is clearly relevant and material to the issues to be determined. I find the documentary and testamentary evidence submitted by the Parent in this case to be credible and uncontroverted in this case.
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 if the Parent meets her burden under Schaffer v. Weast, the Parent is entitled to the proven relief she seeks. 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 a FAPE. (SRO No. 17-033) 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'|) 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.
The DOE has conceded liability by failing to present a case and meet its burden under the law. 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]. 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. 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 may be entitled to the proven relief she has requested. The DOE has defaulted on its statutory obligation and I find that the student was denied a FAPE for the 2019-2020 school year.
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])
I now turn 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 Parents’ 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 him to benefit from the instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65)
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)
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) 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) 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) 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"]])
There is a request for compensatory educational services in this case and 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]) 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]) 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])
State regulations provide in relevant part that "[t]he decision of the impartial hearing officer shall be based solely upon the record of the proceeding before the impartial hearing officer and shall set forth the reasons and the factual basis for the determination. (See 8 NYCRR 200.5{j][5][v])
Shaffer decision of the Supreme Court of the United States issued on November 14, 2005, held as follows:
“We hold no more than we must to resolve the case at hand: The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. In this case, that party as Brian, as represented by his parents. But the rule applies with equal effect to school districts: If they seek to challenge an IEP, they will in turn bear the burden of persuasion before an ALJ.
The judgment of the United States Court of Appeals for the Fourth Circuit is, therefore affirmed.” (Supra, Ill, [2) (See Schaffer v. Weast, 546 U.S. 49, 58-
62 [2005] (emphasis added)
Here, for the reasons stated above, the DOE did not meet its burden under the law. (Supra) I find that the student has been denied a FAPE for the 2019-2020 school year.
A gross violation of the IDEA may result from the denial of, or exclusion from, educational services for a substantial period of time. (See SRO No. 04-074, citing Mrs.
C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990), Burr v. Ambach, 863 F.2d 1071 (2d Cir.
1988) and SRO No. 02-047.) In Burr, exclusion from educational services for a substantial period of time was defined as “almost two years.” (See SRO No. 02-033 citing Burr “...after a severely disabled student's school was closed, prolonged delays in the administrative proceedings in obtaining a new placement resulted in a complete exclusion from any educational placement for the student for almost two years.” I do not find that the violation in this case meets the standard of a “gross violation” of FAPE.
I now turn to the question of whether the relief sought by the Parent is appropriate. As noted above, the DOE may 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 & Cerra, Supra) As previously noted, 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. (Gagliardo & Frank G., Supra)
In sum, substance and relevant part, the DOE argues that (1) the Parents lack standing to bring their claim for tuition at the private school; (2) that the private school was not an appropriate placement for the student; (3) that the private school does not provide ABA as recommended in clinical evaluations; (4) that the related services of OT and SLT are not necessary to enable the student to make academic progress and receive an educational benefit; and (5) the equities favor DOE. (D-4) The DOE notes that the student educational evaluation recommended up to (20) hours per week of home ABA/special education instruction supervised by a Board Certified Behavior Analyst (BCBA), who should also spend at least (2) hours per week working directly with the student, plus (1) hour per week of parent ABA training. (D-4 citing P-H) The report also recommended up to five 60-minute sessions each of SLT and OT to be divided between school and home. (Id.)
The DOE concedes that the student attended the private school during the 2017-2018, 2018-2019 and 2019-2020 12-month school years, even though the private school does not use ABA methodologies and instead, uses the Developmental Individual Difference Relationship (“DIR”) model. (D-4 citing T-32, 48, P- Q, P-X & P-
DD) The DOE also notes that for the 2018-2019 school year, the student received OT (3) times per week for 30-minutes sessions, twice individually and once in a group, SLT three times per week for 30-minutes sessions, twice individually and once in a group and received the same levels of these services in the 2019-2020 school year. (D-4 citing
T-32, P-X & P-DD) However, the private school director testified that the student almost always receives more of these services and actually receives OT and SLT services informally throughout the day in addition to the scheduled sessions. (D-4 citing T-52-4)
The DOE further argues that although the Parents complain in the DPC that the CSE failed to advise them that a 1:1 teaching program utilizing the scientifically validated ABA method of instruction may be available to the student at the , which clearly indicates that they believed that a school utilizing ABA methodologies would have been appropriate for the student for the 2019-2020 school year and actually faulted DOE for not advising them of the availability of such a school. (D-4 citing P-C)
The DOE states that Parents cannot assert a claim for funding of tuition on behalf of another party where the parents themselves have incurred no obligation to pay the tuition and, thus, have no claim in their own right. (D-4 citing Malone v. Nielson, 474 F.3d 934, 937 (7th Cir. 2007); Emery v. Roanoke City School Bd., 423 F.3d 294, 299 (4th Cir. 2005); Piedmont Behavioral Health Center LLC v. Stewart, 413 F. Supp. 2d 746, 755-56 (S.D. W. Va. 2006). The DOE further notes that in a case considering identical contractual language and facts remarkably similar to this case in all relevant respects, the undersigned found that parents seeking prospective funding for tuition at the private school in this case did not have standing to bring their claim; that it was the school, not the parents, that incurred the financial burden associated with the student’s education for the school year at issue; and because the school had no standing to bring the claim in their own right, parents could not bring the claim on the school’s behalf. (D4 citing Findings of Fact and Decision, DPC # [July 11, 2012])
The DOE provides the following analysis of the Parents’ financial obligation to pay the private school in this case:
According to their 2018 income tax return submitted in support of prospective funding, the Parents have four children and their gross income for the year was . (Ex. T) Tuition at the [PRIVATE SCHOOL NAME] for the 12-month 2019-20 year is $135,440 (Ex. 1) The school’s program director testified that the student is receiving no scholarship, grants or financial aid for the school year. (Tr. 54:3-20) According to “Addendum A” of the Student’s Enrollment Contract, a $500 deposit was due on May 1, 2019, with payments of $1,500, $2,000, $2,000 and $2,000 due on March 15, June 1, August 15, and November 15, 2020, respectively. (Ex. |-5) The addendum further states: Payments 1 through 4 will be waived if the DOE, or Student’s local Board of Education if different from the DOE, prospectively pays tuition prior to the payment dates above. The balance of the tuition will become due upon payment by the Department of Education or Student’s local Board of Education if different from the DOE. If payment is not received by June 1, 2020, a new Payment Schedule may be put into place and the remaining balance may become due immediately.
kKREKKK
Parent(s) represent that their financial status warrants direct prospective payment of tuition by the DOE or Student’s local Board of Education if different from the DOE. Upon request and as a condition of the Student's enrollment, Parent(s) will provide the School with necessary documentation in the form of Tax Returns, W-2 Wage Statement, Social Security Income Statements or other documents reflecting actual income and resources. On the basis of this representation, the School has agreed to enroll the Student on the basis of the Payment Schedule set out above.
In consideration of the foregoing: a) Parent(s) agree to seek funding from the DOE or Student’s local Board of Education if different from the DOE, and to cooperate fully with the DOE or Student’s local Board of Education if different from the DOE in the placement process; b) Parent(s) agree to cooperate with their own counsel as well as the School in the process of impartial review and, if necessary, appeal to the State Review Officer; c) Parent(s) agree that they will cooperate fully with the School's counsel and grant him/her the requisite authority to speak with agents of the City and State of New York on their behalf until payment is issued and delivered to the School ...
kKREKKK
If Parent(s) do/do not qualify financially for prospective payment of tuition or Parent(s) are/is denied payment by a final decision resolving their claim for prospective payment of tuition, Parents will remain responsible for tuition costs per the Enrollment Agreement and the balance of Student's tuition may be due immediately. (D-14 citing P-l)
Extending its analysis of whether the Parents in this case have incurred any financial obligation to pay the private school, the DOE further argues:
The Enrollment Contract also states that “the School may revoke any
Contract and suspend or terminate the Student's enrollment for non-payment or untimely payment.” (Ex. I-2)
It is apparent from the circumstances of this case, that the Parents and the [PRIVATE SCHOOL NAME] did not expect Parents to ever pay the tuition in this case. Rather, the Enrollment Contract clearly contemplates that DOE—not the Parents— would make the tuition payments. With the Parents’ gross income of and the annual tuition of $135,440, it is inconceivable that the parties believed the Parents could or would pay the tuition. Indeed, in the Enrollment Contract, the Parents “represent that their financial status warrants direct prospective payment of tuition by the DOE.” There is extensive language regarding the Parents’ obligations to seek tuition funding from DOE. In contrast, the consequences for the Parents’ failure to pay are that the school “may” put a new payment schedule in place or “may” revoke the contract and terminate the Student’s enrollment. Moreover, the payment schedule only includes payments totaling $8,000 and only $4,000 by the end of the 12-month 2019-20 school year. (Ex. I-5) That is out of a total tuition of $135,440. And there is no evidence that even the lone scheduled payment of $1,500 due on March 15 has been made by Parents or how much Parents would ever be required to pay. (D-4)
The DOE further argues that basic contract law requires that an agreement be so definite regarding the material terms that the performance to be rendered by each party is reasonably certain. (D-4 citing Restatement (Second) of Contracts §33 [1981]) The DOE states that where the essential terms of an agreement are uncertain, there is no contract and there can be no more material term of a contract than a party’s obligation to pay for services. (Id.) Summarizing its argument, the DOE states:
Here, as explained above, it is at best uncertain whether the Parents are obligated to pay the [PRIVATE SCHOOL NAME] tuition under the terms of Enrollment Contract. In the event DOE does not prospectively pay the tuition, the Enrollment Contract provides only that the school “may” put a new payment schedule in place, “may” revoke the contract and terminate the Student's enrollment, or that the balance of the tuition “may” become immediately due. But in reality, it is evident that there was never any expectation that the Parents would pay the tuition. The Parents simply do not have the financial wherewithal to pay the $135,440 annual tuition.
Under the terms of the Enrollment Contract, in fact, Parents were required to represent that their “financial status warrants direct prospective payment of tuition by the DOE.” (Ex. I-5) It is clear from the terms of the Enrollment Contract that the parties were looking to DOE to pay the tuition in the first instance and there is no certain obligation on the part of the Parents to pay if the DOE does not. Accordingly, the Enrollment Contract is void. And for this additional reason, the Parents’ claim for DOE to fund tuition at the [PRIVATE SCHOOL NAME] should be denied. (D-4)
The DOE cites W.A. v. Hendrick Hudson Central School District, 927 F.3d 126 (2d Cir. 2019), where the Second Circuit considered a Parent’s claim for reimbursement of their unilateral placement’s tuition and held that: “Even where the private placement yields evidence of the child’s success, however: courts should not disturb a state’s denial of IDEA reimbursement where the chief benefits of the chosen school are the kind of advantages that might be preferred by parents of any child, disabled or not.
Rather, the unilateral private placement is only appropriate if it provides education instruction [specially] designed to meet the unique needs of a handicapped child. M.H., 685 F.3d at 252 (quoting Gagliardo, 489 F.3d at 115 (internal quotation marks and alterations omitted)* * * * *Thus, even though the record may support the view that Norwood was an excellent placement for W.A., it also supports the SRO’s conclusion that Northwood was nor methodically or therapeutically structured in the way required for reimbursement under the IDEA.” (D-4)
Here, however, despite the repeated recommendations of the clinicians regarding the student’s need for ABA, the Parents continued to send the student to a school that does not utilize ABA principles and methods when there are many special education schools in New York City that do utilize ABA, and then asked DOE to pay for extensive ABA services outside of school to make up for the school’s shortcomings, which to effectively ask the DOE to fund two programs for the student. (D-4 citing P-F & P-H)
The Parent argues that for the 2016-2017 school year, student attended a private school that used ABA methodology, but where the student regressed. (P-FF citing P-H)
Since July 2017, the student has attended his current private school. (P-FF citing T-48)
The student’s current private school is a school for children with neurodevelopment delays in relating and communicating including Autism Spectrum Disorder that provides the student with a 2:1 student to teacher ratio, significant opportunities for 1:1 instruction, has licensed occupational and speech and language therapists on staff with an academic curriculum that is individualized for the student based on his needs. (P-FF citing T-30-3, P-Q & P-Y) For the 2019-2020 school year, the student is in a class of (9)
students with (6) teaching adults in the classroom, his peers are similar in age and functioning level, his head teacher has a master’s degree in special education and is teacher certified and the teaching assistants have bachelors degrees, while his occupational and speech therapists are licensed and certified in their respective fields and provide the student with an individualized sensory diet three times per day. (P-FF citing T-36-8 & P-DD).
The Parent notes that the private school director testified many challenges that the student has many challenges that affect him throughout the day, and his progress is based on the program that has been in place at home services and at the private school. (P-FF citing T-45-6 & 55)
In this case, the DOE defaulted on its statutory obligation. (Supra) Accordingly, as noted above, I find that the student has been denied a FAPE for the 2019-2020 school year. I also find that the record, as indicated above demonstrates that the private school, supplemented by the student's home program, is appropriate for the student in that it provides educational instruction designed to meet the unique needs of the student, supported by such services as are necessary to permit him to benefit from instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65)
However, I believe that equitable consideration, in that the DOE has successfully shown the private school contract to be illusory and that the claim in this case has really been brought on behalf of the private school and after school provider, bar an award on behalf of the Parent.
Taken as a whole, I find that the contract clauses cited above contemplate “direct prospective tuition payment by the DOE” to the private school on the basis on the Parents’ “financial status”, not by the Parent and not because the student has been Le Ld denied a FAPE as required by the IDEA. If at best the Parent can argue that the contract is ambiguous, 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) Here, there is no doubt that the relevant contract was drafted by the private school. Accordingly, the ambiguity cited above concerning whether a new payment schedule is required, or whether the entire balance under the agreement is due, would be held against the private school, not the Parent, who as a consequence would escape any liability under the agreement.
What’s more, 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) Here, as cited above, the very wording of the private school contract indicates that the private school was working with, i.e, “colluding” with the Parents to have the DOE, and not the Parent’s pay the tuition.
The record is devoid of any indication that the private school has taken any measures to collect the tuition by way of invoices sent to the Parents, or by threatening and/or pursuing legal action against them for the tuition owed. Under the circumstances, I find that the private school contract really contemplates payment of the private school tuition by the DOE and not the Parent. Thus, the Parents herein is actually “straw persons” bring the instant claim on behalf of the private school, not themselves.
It is well settled that Parents who choose to unilaterally place their child at a private school 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) 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 (ist 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]) Here, however, the record is at best dubious in whether the Parents have incurred a financial risk, because for the reasons stated above the terms of the contract are ambiguous and may not be enforceable. While the contract in this case does allegedly require the Parents to make some small periodic payments to the private school, there is no evidence in the record indicating that, under the circumstances, the Parent has made any meaningful payments to the private school, or that the private school has ever sought payment of the student's tuition 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])
I note that without the home program, the private school may be inappropriate for the student as it does not offer the ABA programming the student's clinicians have recommend are material to the student’s education. (Supra) In this regard, I find the DOE’s argument persuasive that despite the repeated recommendations of the student’s clinicians regarding his need for ABA, the Parents continued to send the student to the private school that does not utilize ABA principles and methods, when there are many special education schools in New York City that do utilize ABA, and that their request to have the DOE to pay for extensive ABA services outside of school to make up for the private school’s shortcomings, is to effectively ask the DOE to fund two programs for the student. (D-4 citing P-F & P-H)
For the reasons stated above, I find that the Parent in this case is not entitled to direct and/or prospective funding of tuition at the private school for all of the reasons stated herein. (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)
NOW therefore, it is hereby
ORDERED that the Parent’s request for relief in this case is denied; and it is further
ORDERED that the DOE shall immediately conduct evaluations of the student in all areas of his suspected disabilities not evaluated within the last two years, for the 2020-2021 school year; and it is further
ORDERED that the DOE shall forthwith reconvening the CSE after the completion of the student's evaluations and consider those evaluations and any other relevant information and produce a new IEP for the student’s 2020-2021 school year; and it is further
ORDERED that any of the other relief sought by the Parent not addressed by this decision is found to be either agreed upon by the parties, withdrawn by the Parent, outside the scope of the IHO’s authority or unsupported by the record.
DATED: July 3, 2020
New York, New York Edgar De Leon - IHO
PLEASE TAKE NOTICE
The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. Directions and forms can be found on the Office of State Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview.html
DOCUMENTATION ENTERED INTO RECORD
Number/Letter Title Dated For #of Pages
01-03 Withdrawn / Not Received N/A DOE N/A Closing Statement 04/02/20 DOE 24
DPC 07/01/19
ETNAKOXNSTMCAOPAICOVOZWSTE
PARENT 12
IEP 06/27/16 PARENT 15
DPC — Corrected 09/24/19 PARENT 12
Parent Letter 03/05/19 PARENT 08
Parent Letter 03/12/19 PARENT 09
Parent Letter 03/14/19 PARENT 10
Withdrawn / Not Received N/A PARENT N/A Parent Letter 04/12/19 PARENT 23
Enrollment Contract 05/31/19 PARENT 06
10-Day Letter 06/14/19 PARENT 16
Summer Schedule 07/2019 PARENT 01
Summer Attendance 08/13/19 PARENT 01
10-Day Letter 09/09/19 PARENT 02
Parent Letter 09/12/19 PARENT 11
Parent Letter 09/17/19 PARENT 04
Daily Schedule 2019-2020 PARENT 04
Program Description 2019-2020 PARENT 08
Resume of 2019 PARENT 02
Resume of 2019 PARENT 03
Tax Return 2018 PARENT 02
Parent Letter 11/08/19 PARENT 05
OT Report 10/03/19 PARENT 03
Speech Report 10/31/19 PARENT 03
Progress Report 06/2019 PARENT 08
Treatment Plan 06/04/19 PARENT 02
Withdrawn / Not Received N/A PARENT N/A OT License 05/12/02 PARENT 01
License 06/21/99 01
7TMmM0QW1NIMOGQM
PARENT
License 06/26/14 PARENT 01
Progress Report 12/2019 PARENT 08
Program Checklist 2019 PARENT 02
Closing Statement 04/02/20 PARENT 18
N/A N/A N/A IHO N/A