New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION - DOE DEFAULT & INQUEST

Case Number: 185821

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

Date of Birth:

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 06/18/20

Actual Record Close Date: 09/10/20

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Title For Date DOE Representative DOE 06/18/20 (T)

PARENT 06/18/20 (T)

Mother PARENT 06/18/20 (T)

Optometrist PARENT 06/18/20 (T)

Director PARENT 06/18/20 (T)

DOCUMENTATION ENTERED INTO RECORD

1. Number/Letter Title Dated For #of Pages Number Date Document Number of Pages 06-17-2019 Individualized Education Services Program (IESP) 06-17-2019 Prior Written Notice (Notice of Recommendation) | 3 03 Closing Statement 07/14/20 DOE 04 12 pages DOE

PARENT EXHIBITS

EXHIBIT | DATE NAME #PAGES

A. Due Process Complaint 9/27/19 7/8/19 2 pages

B. Notice of Appearance l Cc 9/18/19 List of Providers called l Pp 7/8/19

D. rent Agreement (contract) 9/27/19 3 pages

E. Sensory Processing Screening- OT 7/20/19 3 pages

F. Affadavit 9/27/19 1 page

H. G 2/8/17 Provider License - | Provider License- 11/22/14 1 page

J. | 5/2/19 Evaluation- Developmental Optometrist 7 Dr. IESP 3/25/19 11 pages

K. Bills from Dr. - Request 12/2/19 2 pages

L. Bills from Dr. M N M Closing Statement 07/11/20 PARENT 03 “eer”, “G” and “H” identified but not formally received in evidence*** 6/16/20 1 page

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

On August 23, 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 and 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 June 18, 2020. The parties opted to submit written closing statements that were received on July 14, 2020 (D-3) and July 11. 2020 (P-M).

A list of the persons who appeared at the hearing 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 through her advocate, and received at the Department of Education Impartial Hearing Office (“DOE-IHO”) on or about July 8, 2019. The DPC is carried under New York City (“NYC”) . Therein, the Parent alleges that the DOE has failed to provide the student with a “free and appropriate public education” (“FAPE”) for the 2019-2020 school year. At the impartial hearing, the Parent seeks the following relief: (a) Vision Therapy (1) time per week for (40) sessions at a cost of $150 per session; and (b) |The $650 cost of a Developmental Vision Evaluation; and (c) SETSS at an enhanced rate; and (d) Costs and fees; and (e) Any additional relief the IHO determines is appropriate.

THE DOE’S CASE

The DOE did not call any witnesses to testify on its behalf and submitted (3) documents in evidence. (T-5-7, 14 & 17) The DOE did not defend “FAPE” and did not challenge the presumption in the law that the Parent has cooperated with the agency.

(Id.) The DOE objects to paying for vision therapy services because this request is medical as opposed to educational as indicated in (P-I), which states that the student should be receiving the service from a specific medical provider. (T-15) In sum, substance and relevant part, the testamentary and documentary evidence for and against the DOE’s case is incorporated in the decision below.

THE PARENT’S CASE

The Parent called (2) witnesses to testify on her behalf, one who testified on direct testimony via affidavit pursuant to 8 NYCRR 200.5[j|[3][xii][f]. (P-F) The DOE crossed examined both of the Parent’s witnesses. (T-34 & 50) The Parent also submitted (10) documents in evidence. The DOE did not object to the Parent's documents being received in evidence, with the exception of Parent exhibits P-C, P-G and P-G. (T-13) In sum, substance and relevant part, the testamentary and documentary evidence for and against the Parent's case is incorporated in the decision below.

FINDINGS OF FACTS & DECISION - 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 (3) documents in evidence, failed to file and serve an answer, but did serve a “Prior Written Notice” in this case, and did not even make an opening or a closing statement. (See 20 U.S.C. 1415(f)(3)(e) & T-5-7, 14 & 17) “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 testamentary and documentary evidence was not rebutted by the agency and the testamentary and documentary evidence is clearly relevant and material to the issues to be determined. I find the testamentary and documentary 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.

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 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).

Where sought as relief, 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 is 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)

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])

In sum, substance and relevant part, the testamentary and documentary evidence in this case indicates the following:

The first witness that testified for the Parent is a developmental optometrist. (T23) She has evaluated the student. (T-24) The student initially came in to see her in May of 2020 and was coming to her office once a week for vision therapy, except for COVID-19. (T-25) Through the vision therapy program, she is teaching the student to use his two eyes together, not teaching him reading, but the therapy will affect how the student reads and writes. (T-30)

The witness testified that “vision therapy” is both a medical therapy and an educational therapy. (T-31) She is literally teaching the student to almost rewire his brain to be able to perceive correctly, the way that he should be looking through both his eyes is educational because it affects his academics. (Id.)

On cross examination, the witness testified that she has (38) years of experience of working with children like this. (T-36) “Vision therapy” involves moving object, which involves improving saccadic fixation (moving from one target to another), involves improving focusing, which is the accommodation and a change of focus looking from near to far to near to far, which improves depth perception. (Id.) An occupational therapist can do some of the exercises that she does with the student. (T-37) There was no re-direct examination of the witness. (T-38-9)

The Parent's second and final witness testified that there is a contract that requires the Parent to pay “ ” for the SETSS services that they provide at the rate of $160 per hour. (T-46) His affidavit says they charge “$140 hour because they had not yet seen the child and cited their baseline fee. (Id.) One actual SETSS provider is paid around $96 to $97 per hour. (T-54) The other SETSS provider is paid around $80 to $82 per hour. (T-55) There was no re-direct examination of the witness.

(Id.)

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 Decision 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 Decision 02-047. In Burr, exclusion from educational services for a substantial period of time was defined as “almost two years.” See SRO Decision 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 DOE’s default and concession in this case that is has failed to afford the student a FAPE constitutes a gross violation of IDEA.

The student’s IESP dated March 25, 2019, mandates that the student receive SETSS services (5) periods per week. (P-J) The purported contract between the private agency and the Parent is dated September 27, 2019 and states in relevant part: The Agency will provide five periods per week of Special Education Teacher Support Services for the child during the 2019-20 School Year starting on or about 1/13/2020.

The Agency will ensure that all SEIT and/or SETSS services are provided consistent with the child's current IEP or IESP developed by the NYC Dept. of Education. The current IEP/IESP is dated 3/25/2019.

The Agency reserves the right to terminate services at any time if the school or Parent refuses to cooperate with the Agency or if the Parent's case is denied or rejected by the Impartial Hearing Officer.

The Parent agrees to work with an Advocate or Attorney to litigate the matter of payment of services at an Impartial Hearing and the Parent agrees to cooperate with the Advocate/Attorney throughout the process.

The Parent is aware that as the guardian of the child, the Parent is ultimately responsible to the Agency for the cost of services at the rate charged by the Agency for these services. The agency rate lor these services is $160 per hour of services delivered; however, the Agency may approve a discount for families with special circumstances. (P-D)

“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)

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 2TM Edition, Calamari & Perillo) The contract is void if the content of the agreement is unduly uncertain. (Id.)

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.)

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 agency, as it appears on their letterhead. Accordingly, the ambiguity cited above concerning whether a new payment schedule is required, or whether the entire balance under the agreement is due, whether the Parent is ultimately required to pay the private agency anything, would be held against the private agency, not the Parent, who as a consequence would escape any liability under the agreement.

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/services, 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 private agency’s fees. (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)

There is no indication that the private agency has taken any measures to collect the fees 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 agency contract really contemplates payment of the private agency's fees by the DOE and not the Parent. Thus, the Parent herein is actually “straw person” bring the instant claim on behalf of the private school, not himself.

The private agency contract is ambiguous and indefinite in its terms, regarding its ultimate fee and whether or not the Parent will ultimately be held responsible for its payment. 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)

As stated above, it is well settled that Parents who choose to unilaterally place their child at a private school, or to procure services from a private entity, 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 (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))

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), the IDEA does not expressly provide for prospective payment of tuition costs. 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)

There is no evidence in the hearing record indicating that, under the circumstances, the Parent has made any meaningful payments to the private agency, or that the private agency 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])

Accordingly, I must find that the Parent cannot seek payment of the private agency’s fees or prospective relief on behalf of the private agency.

The evidence contained in the hearing record supports a finding that it was the private agency, not the Parent, who incurred the financial burden associated with the student's education 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) However, the private school is not a party in this case and is, therefore, not entitled to relief under the IDEA. (Id.)

I do note; 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) Moreover, 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]) ]) 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 or private services 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)

As previously stated, the Parent cannot assert a claim for the particular relief he has requested on behalf of the private agency, which lacks standing under the IDEA to maintain a claim against the DOE in its own right. (See Emery, 432 F.3d at 299, Piedmont Behavioral Health Center LLC v. Stewart, 413 F.Supp. 2d 746, 755-56 (S.D.

W.Va. 2006) and Malone v. Nielson, 474 F.3d 934, 937 [7th Cir. 2007]) The Parent might argue that he is entitled to direct funding under Connors v. Mills, 34 F. Supp. 2d 795, 805-06 (N.D.N.Y. 1998). 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) In the case at bar, the DOE did concede that it failed to offer the student a FAPE for the 2019-2020 school year.

I find that the Parent in this case is not entitled to direct and/or prospective funding of tuition at the private agency under the above cited contract 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, 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)

SETSS are not defined in State or federal laws or regulations and are not identified on the State continuum of special education services. (SRO No. 16-044) 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])

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” (8 NYCRR 200.1[m] [emphasis added]; see 8 NYCRR 200.6/d]).

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. There is no evidence of an enforceable "specific arrangement” or an enforceable contract or an actual agreement with a private provider to pay the provider if the impartial hearing process did not result in an award of an enhanced rate. The fee cited in the contract may be lowered to an unknown amount or even vitiated at the whim of the private agency. Therefore, even if the Parents prevailed on the merit of her claim, it would be unclear at this juncture whether or not any relief would be warranted absent evidence that there is a private provider who is owed additional compensation based on a viable and enforceable agreement with the Parent or the DOE.

Absent the DOE’s concession that the student was entitled to receive the SETSS services during the 2019-2020 school year (supra), the record does not evidence that the DOE failed to make available to the student special education programs and services on an equitable basis. (See Educ. Law § 3602-c[2][b][1]) First 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.”

Secondly, the alleged DOE provider call list submitted by the Parent indicates that her efforts to secure a DOE SETSS provider amounted to only (13) emails allegedly all sent out on September 18, 2019. (P-C)

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"|) 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"]). Here, I find that equitable considerations warrant a reduction in the cost of the SETSS services the student was entitled to receive and be paid for by the DOE, to the established DOE rate for those services.

The record supports a finding the vision therapy would help the student educationally. The credible and uncontroverted testimony of the therapist is that through the vision therapy program, she is teaching the student to use his two eyes together. (T-30) Although she is not teaching the student reading, the therapy does affect how the student reads and writes. (T-30) The witness testified that “vision therapy” is both a medical therapy and an educational therapy and that she is literally teaching the student to perceive correctly, which affects his academics. (T-31)

If the Parent disagrees with an evaluation obtained by the school district, the parent has a right to obtain an independent evaluation at public expense. Regulations of the Commissioner of Education § 200.5(g). (“NYCRR § 200.5”) If the Parent request an independent educational evaluation at public expense, the school district must, without unnecessary delay, either ensure an independent evaluation is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. 8 NYCRR § 200.5(g)(iv). Additionally, 34 C.F.R. 300.502(d) and 8 NYCRR 200.5(i)(3)(vi)

provide that if a hearing officer requests an independent educational evaluation as part of a hearing, the cost of the evaluation must be at public expense. I find that the cost of the evaluation recognizing the student's need for vision therapy should be paid by the agency.

I further find that the testamentary and documentary evidence submitted by the Parent is credible and largely uncontroverted. It supports a finding that the relief sought iS appropriate in the manner indicated below. Finally, there is nothing in the record to support a finding that the Parent has not cooperated with the agency.

NOW therefore, it is hereby

ORDERED upon the DOE’s DEFAULT and after INQUEST that upon its receipt of reasonably satisfactory proof of services having been rendered, the DOE shall either reimburse the Parent and/or directly pay the cost of the student’s receipt of (5) periods of SETSS per week for the entirety of the student's 2019-2020 school year, at the established DOE rate, (40) sessions of Vision Therapy, at a rate not to exceed $150 per hour, and an independent Developmental Vision Evaluation, at a cost not to exceed

$650; and it is further

ORDERED upon the DOE’s DEFAULT and after INQUEST that the DOE shall also conduct a re-evaluation 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 upon the DOE’s DEFAULT and after INQUEST that the CSE shall forthwith reconvene after the completion of the student’s evaluations and consider all of the student's evaluations and any other relevant information and produce a new IEP for the student’s 2020-2021 school year; and it is further

ORDERED upon the DOE’s DEFAULT and after INQUEST that any of the other relief sought by the Parent not addressed by this 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: September 19, 2020

New York, New York Edgar De Leon - |.H.O.

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)