New York City Department of Education, Impartial Hearing Decision

Cover Sheet

SED number 549574 NYC number 205931

FINDINGS OF FACT & DECISION

Case No.: 205931

Student’s Name: Redacted (“Student”)

Date of Birth: Redacted

District: Redacted

Hearing Request by: Redacted (“Parents”)

Hearing Dates: 02/16/2022 and 2/23/2022

Actual Record Close Date: 3/30/2021

Hearing Officer: Ned H. Kassman, Esq

NAMES AND TITLES OF PERSONS WHO APPEARED ON February 16, 2022 and February 23, 2022

For the Student:

Redacted

For the Department of Education:

Redacted

On January 13, 2021, Parents of Student filed a due process complaint (“DPC”) under the Individual with Disabilities Education Act (“IDEA”) [20 U.S.C. §1415(f)] and Section 4404(1) of the New York State Education Law against the New York City Department of Education (DOE). I was appointed as impartial hearing officer (“IHO”) on April 16, 2021. The Hearing went forward on February 16, 2002 and February 23, 2022.

Lists of the documentary evidence submitted are appended to this Order. The compliance date for issuing a decision in this proceeding has been extended.

BACKGROUND AND POSITIONS OF THE PARTIES

Student is a Redacted). His classification and eligibility for special education services and supports is undisputed by the DOE. The Parents assert that the CSE’S actions constituted multiple distinct denials of a Free Appropriate Public Education (“FAPE”) to the Student including, but not limited to, a failure to develop or provide an Individualized Education Program (“IEP”) or specialized education placement for Student for the 2020-2021 school year and failed to have a special education program and placement in effect at the start of the 2020-2021 school year (Ex. A p. 2). Parents also assert that Student made significant progress at his school, the Redacted School (“School”) and is seeking tuition reimbursement/prospective tuition funding for the September 2020 through June 2021 school year.

The DOE appeared at the hearing, introduced documentary evidence, cross examined Parents’ witnesses, made an opening statement and submitted a closing brief. However, the DOE conceded Prong I (Tr. p. 143 lns. 12-19), did not dispute the propriety of Parent’s placement but did make a Prong III argument so as to warrant a reduction in any putative award. Parents introduced eleven exhibits^[1] and introduced two witnesses through direct testimony.

FINDINGS OF FACT AND DECISION

SCOPE OF DUE PROCESS HEARING

The DOE asserts that the issue of a FAPE be limited to the specific issues raised in Parents’ Due Process Complaint (“DPC”) pertaining to the 2020-2021 school year, any issues not raised in the due process complaint should not be considered and any claims set forth within the DPC that were not addressed at hearing be deemed abandoned (IHO Ex. I p. 2). In support of its contention, the DOE cites to Application of the Dep’t of Edu. Appeal No. 09-037 at 14 (Id.)

There is no dispute in this case regarding either issue identification, adequate notice of any issues and pleading sufficiency. However, it should be noted that DOE’s citation does not stand for the premise it is cited for because page 14 of the SRO decision involves a discussion on what constitutes a FAPE, an appropriate IEP, the burden of proof and the first paragraph of the SRO’s ruling. Moreover, even if the scope of the hearing was at issue this IHO cannot consider an SRO decision as controlling precedent although this IHO must consider statutory precedent and case law cited by the SRO in support of that officer’s decision.

Although not an issue in this case, given the DOE’s position in the preliminary statement of its closing brief (IHO Ex. I), a brief discussion is warranted. A written due process complaint notice to the party shall include: “(iv) a description of the nature of the problem of the student relating to such proposed or refused initiation or change including facts relating to such a problem;” 8 NYCRR 200.5 (j)(1)(iv). The regulations are silent as to the specificity of the notice required and it is this IHO’s position that in the event the scope of the impartial hearing becomes an issue, the DOE must explain how or why the applicable regulations are to be applied in a given situation since the IDEA’s due process requirements impose “minimal pleading standards” Schaffer v. Weast 546 U.S. 49 IDELR 150 (2005).

Burden of Proof and Evidentiary Standard

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in a parental relationship seeking tuition reimbursement/prospective tuition for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (N.Y.S. Educ. Law § 4404(1)(c)).

The burden of proof has two components, the burden of production, in which the party with the burden is required to put forth evidence in the form of witness testimony and documentary evidence; and the burden of persuasion, which is a standard of proof that determines the amount of evidence the party shouldering that burden needs to provide in order for a judge to reach a particular determination.

In impartial hearings, the standard of proof is a preponderance of the evidence. See Cerra v. Pawling Cent. Sch. Dist. 427 F.3d 186 (2d Cir. 2005). Under the preponderance of evidence standard, the burden of persuasion is met when the party convinces the fact finder that there is a greater than 50% chance that the claim is true.

In the context of a claim for tuition reimbursement/ prospective tuition payment, a board of education may be required to pay for educational services obtained for a child by the child’s parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also Frank G. and Dianne G v. Bd. Of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006], cert denied, Board of Educ. Of Hyde Park Cent. School Dist. v. Frank G., WL 2982269 [Oct 15, 2007].

Tuition Reimbursement/ Prospective Tuition Funding Payable Directly to School The IDEA provides that children with disabilities are entitled to a FAPE (20 U.S.C. § 1400 [d][1][A]. A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Educational Program (“IEP”) 34 C.F.R. § 300.13).

A school district has offered a student a FAPE when (a) the board of education complies with procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA’s procedures and is reasonably calculated to enable the student to receive educational benefits Bd. Of Educ. Of The Hendrick Hudson Cent. Sch. Dist. v. Rowley 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” Endrew F. v. Douglas County Sch. Dist. RE-1, No 15-827, 2017 W 1066206, 137 S.Ct. 988, 69 IDELR 17 (U.S. Mar 22, 2017).

Decisions of impartial hearing officers must be on substantive grounds based on a determination of whether the student received a FAPE, 8 NYCRR § 200.5(j)(4)(i), except as follows:

In matters alleging a procedural violation, an impartial hearing officer may find that a student did not receive a free appropriate public education only if the procedural inadequacies impeded the student’s right to a free appropriate education, significantly, impeded the parent’s opportunity to participate in the decision making process regarding the provision of a free appropriate public education to the parent’s child, or caused a deprivation of educational benefits. Nothing in this paragraph shall be construed to preclude an impartial hearing officer from ordering a school district to comply with procedural requirements under this Part and Part 201 of this Title 8 NYCRR § 200.5(j)(4)(ii).

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement/prospective tuition for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (N.Y.S. Educ. Law § 4404(1)(c)).

Within the Second Circuit, courts have found this requirement to also apply prospectively in the form of direct payment to the school. See Connors v. Mills 34 F. Supp. 2d 795, 805-806 (N.D.N.Y 1998) (“once the Burlington prerequisites relative to a non-approved private school are met, and a parent shows that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of private placement immediately”).

Prong One The DOE did not meet its burden of proof and demonstrate that it offered a FAPE to Student for the 2020-2021 school year and it conceded its Prong I requirement. The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017). DOE’s failure to offer any evidence is insufficient to establish that a school district offered a student a FAPE. There was absolutely no explanation, let alone a cogent and responsive one, for the DOE’s lack of introduction of evidence in this case related to Prong I.

It is clear that the DOE has not met its burden of proof demonstrating that a FAPE was provided to the Student in this proceeding. Since the DOE failed to demonstrate that a FAPE was provided to the Student, the first of the three Burlington/Carter criteria for prospective tuition payment has been met.

Prong Two The Parents have the burden of proving that the unilateral placement was appropriate. In order to meet this burden, the Parents must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the student” Gagliardo v. Arlington Cent. Sch. Dist. 489 F.3d 105, 112 [2d. Cir. 2007]. However, the private school placement “need not meet the IDEA definition of a free and appropriate public education” or state education standards or requirements” Frank G v. Bd. Of Educ. 459 F. 3d 356, 364 [2d. Cir. 2006].

The standard to apply is whether “[the] unilateral private placement … provides educational instruction specifically designed to meet the unique needs of a handicapped child” Gagliardo, 489 F.3d at 115):

No one factor is necessarily dispositive in determining whether parent’s unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo 489 F. 3d at 112 (quoting Frank G, 459 F. 3d at 364-65).

Here, Parents introduced the testimony of Redacted head of school (“headmistress” or “HM”) at School in support of Parents burden to demonstrate that the program at School was appropriate for Student and reasonably calculated to confer a benefit to Student. HM testified that she has a masters degree in early childhood education and special education with a certificate in advance studies in autism spectrum disorders and that she is a NYS certified teacher birth through grades 2 for students with disabilities and general education (Tr. p. 152 lns 23-25). She testified that she founded and opened the School, which is a program for children with special needs from ages 5-21 (Tr. pps 153-154 lns 15-25, 1-9). HM further testified that the program merges integrated behavior analysis into classroom instruction and related services including Occupational Therapy (“OT”), Physical Therapy (“PT”), Speech Therapy, Art Therapy and Music Therapy (Id.).

HM further testified that School serves a wide range of Student’s with a wide variety of diagnoses including ASD (Tr. p. 154 lns 10-21). Students are grouped by age and developmental profile and their diagnoses and they way they present are used to form social peer groups that HM believes would be beneficial to the student based on their areas of need and strengths ((Tr. p. 155 lns 1-7). All lead teachers at School are NYS Certified Special Ed teachers (Id. at 8-12), and they do curriculum training if using a special tool, methodology or model such as Orton-Gillingham (Id. at 17-25).

School communicates with all parents at a minimum on a weekly basis by email regarding the Student’s week at school and the progress they are making (Tr. p. 156 lns 6-11) and the School also sends home three progress reports per school year where they outline the goals that staff are working on with the Student and the progress that students are making towards those goals (Id.). Students are assessed by collecting data, assessment materials that are part of the curriculum like quizzes, unit assessments and tests, homework assignments and projects, teacher records and anecdotal notes and data collection through observation (Tr. p. 156-7 lns 21-25, 1-3).

HM testified that she was involved in the process of considering Student’s application for enrollment and that he enrolled in September 2020 (Tr. p. 157-8 lns 22-5, lns 1-7). She had a phone and Zoom conversation with Parents who did Zoom classroom observations and Student joined some classes for some trial time to see if the School was a good fit (Tr p. 158 lns 6-15). Based on data HM reviewed, she determined that Student benefited from 1:1 support for academic instruction and socialization (Id. at 21-25). She testified that Student had limited independent and spontaneous vocal expressive language and pragmatic and expressive language were determined to be areas of need, along with ELA for reading and writing and math for functional math skills and activities of daily living (Tr. p. 159 lns 1-9).

HM testified that Student required significant support to increase independence and to prepare him for his transition into adulthood (Id. at 11-16). She testified that Student’s functioning level and processing speed are fairly low ( Tr. p. 160 lns 17-24) and HM felt that based on Student’s presentation, reports read, conversations with Parents, School could provide Student with adequate support to meet his needs and help bolster some independent skill and had an appropriate social peer group for him to develop some relationships and work on social skills ( Id. at 16-29).

The goals of School that were important to Parents included enhancing independent expressive language, functional daily living skills including (using cell phones logging in and out of Zoom and email), nurturing and supporting his emotional regulation and social development through peer relationships, creating a customized musical therapy program, functional life skills, math instruction program, functional skills, career exploration, cooking,self-management, reading and writing comprehension so that Student can clearly express himself and process what he is reading (Tr. p. 163 lns 1-11).

HM testified that Student had one to one support in a group setting (Id. at 19-20), in math he had two other age appropriate peers (Tr. p. 165 lns 2-3), in ELA he had six age appropriate peers and the support ratio was based on the size of the group (Id. at lns 4-25) but he had one to one support in his classes ( Tr. p, 169 lns 1-10).

Progress reports were developed by collecting data, doing evaluation assessments, reading and math evaluations etc. (Tr. p. 170, ex. G, H, I). HM testified that goals developed for Student were based on conversations with his parents and reviews of his previous school reports and his evaluation and school observations (Tr. pps 171-2 Ex. G-2). HM testified that between Student’s first progress report in November and Second Report in March, he made progress on his goals and met objectives pretty steadily (Tr. p. 174 lns 7-14). She testified that Student required OT and Speech Therapy because Student had a difficult time engaging socially because he wasn’t comfortable with expressive language and there was a need to increase Student’s ability to participate in academic and social activities and independent activities of daily living using language skills ( Tr. p 174-5 lns 22-25, 1-6).

HM testified that for OT, Student worked on his executive functioning (remaining organized and understanding how to break down a task into steps and not losing focus when the task was being broken down and to complete homework assignments and to organize materials to make appropriate educational progress) as well as increasing his independent activities of daily living (Tr. p. 176 lns 1-9).

HM further testified that Student made significant progress overall and met many short and long term objectives and many new goals were introduced (Tr. p. 178 lns 5-12). Student blossomed and was able to transition nicely into the program and he developed friendships and was able to learn to use technology to facilitate remote instruction (Id.). Overall, and based on his time in the program, Student had success and made meaningful progress (Tr. p. 178-9 lns 21-25, lns 1-5).

The DOE offered no evidence to challenge the Parents’ contention that Student’s placement was appropriate and its attorney did not cross examine the Parents’ witnesses regarding the appropriateness of the unilateral placement. The Parents presented extensive affidavit testimony and submitted substantial documentary evidence in support of their position that the Student’s placement was appropriate (i.e., Parents’ Ex. G, H and I).

The testimony of the Parents’ witnesses, and their documentary evidence established that the Student’s placement at School is appropriate and provided the Student with educational instruction that is specifically designed to meet the Student’s unique special education needs supported by such services that are necessary to permit him to benefit from instruction.

In its closing brief, the DOE for the first time, asserted that Parents failed to meet its burden of proof that Student required a one to one support (IHO Exhibit I p. 4). Although not. specifically stated, this assertion is an artful way of stating that the program is not delivered in the least restrictive environment. Here, the DOE admitted that it did not meet its Prong I burden of proof and production, and therefore, arguments regarding the failure to provide the least restrictive environment are unavailable to the DOE C.L v. Scarsdale Union Free School District 744 F3d 826 (2d Cir. 2014).

Based on the extensive credible testimony of Parents’ witness and uncontroverted evidence, the Parents have met her burden and satisfied the second of the three Burlington/Carter criteria for tuition reimbursement.

Prong Three

A claim for reimbursement must be supported by equitable considerations, which are relevant to fashioning relief under the IDEA. M.C. v. Volunton Bd. of Educ. 226 F.3d 60, 68 (2d Cir. 2009). The determination of whether or not equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether or not the parent cooperated with the CSE as that lack of cooperation can “frustrate the placement process”. Bettinger v. NYC Dep’t of Educ. 49 IDELR (S.D.N.Y. 2007)

Parents have introduced evidence demonstrating that they are responsible for the school tuition for the 2020-2021 school year, which was Redacted dollars (Ex. D) and that they paid Redacted dollars towards the total cost of the tuition (Tr. p. 212 lns 24-25). Parents established that they owe a balance of Redacted dollars to the School for the remaining balance of the tuition for the 2020-2021 school year,which they are responsible for (Id., Ex. D)^[2]. Parents’ evidence is found to be credible and established that balance of Redacted dollars remains due and owing to the school for which they are responsible and that Parents paid a total of Redacted dollars toward payment of the total school tuition warranting both reimbursement of the amount paid to the School and an award of prospective directive tuition payment to school for the remaining balance as consistent with Connor v. Mills 34 F Supp. 2d 795, 805-06 (N.D.N.Y 1998).

The DOE argued that any award should be reduced because the Parents did not fully cooperate with the DOE in conducting a meeting and developing an IEP in a timely manner ( Ex. I pps 5-9). The DOE has the burden of demonstrating that a reduction is warranted predicated on parent’s actions which constituted a failure to cooperate N.Y.S. Educ. Law § 4404(1)(c), IHO Ex. II pps 2-3.

Parent testified over DOE objection that the DOE had failed to conduct a CSE meeting or develop an IEP for the preceding two years despite Parents request ( Tr. p. 198 lns 22-25). Moreover, Parent testified that both he and his wife were aware of the Notice of Meeting and attempted to access the meeting through the internet and by telephone and were unable to do so (Tr. p. 200 lns 9-13, p. 202 lns 10-16). Parents also testified that that the DOE did not make any follow up calls or send any follow up emails when Parents failed to attend the meeting (Tr. p 202-03 lns 22-25 lns 1-5). Parents also sent an email to DOE rebuttal witness Redacted, informing him that Parents were unable to join in the IEP meeting and never received a response to that email (Tr. p. 206 lns 19-25). Finally, Parents testified that they received neither a school location letter nor a copy of the IEP in a timely manner (Tr. p. 207 lns 22-25, p. 208 lns 3-9) and thus, they enrolled Student at School.

While inarguably, a question of fact exists regarding the communication between the Parents and the DOE, and that DOE made efforts to reach out to the Parents when they did not appear at the August 17, virtual meeting (Tr. p. 298, DOE Ex. I p. 9) and that an email response from the Parents were not forthcoming until after the workday (Tr. p. 300, DOE Ex. I p. 9), it does not necessary follow that based on the evidence presented that the Parents missed the IEP meeting because they had already made up their minds to send the student to REDACTED School.

The DOE witness was called as a rebuttal witness. Parents’ attorney contends in his closing brief (Ex. II p. 2, fn. 1) that DOE is attempting to shift the Prong III Burden of Proof by benefiting from the Student’s father’s testimony by in essence, collaterally attacking it, which turns the Burden of Proof on its head (Id.). I disagree with the Parent’s attorney’s contention that the rebuttal witness should not have been permitted to testify because both parties did not meet my prehearing disclosure requirements and it was permitted in the interest of equity and to err on the side of giving all parties a full and fair opportunity to be heard.

However, I do agree with the Parents’ attorney that the DOE was required to independently meet its burden of proof and production separate and distinct from its rebuttal witness who disputed the Parent’s testimony regarding the August 17, virtual IEP meeting. This is a subtle, but critical distinction.

The conclusion drawn by the DOE that Parents deliberately missed the IEP meeting because they already decided to unilaterally place the student prior to the IEP meeting (Ex. I p. 10), is not supported by the evidence and doesn’t warrant a finding of them being uncooperative. Courts in the Second Circuit have held that parents timing of signing a private school enrollment contract does not weigh against reimbursement; as the action was necessary to ensure that child had a spot in the event that an appropriate public-school placement was not offer. See M.F. v. New York City Board of Education, 2013 WL 2435081 (S.D.N.Y. June 4, 2013).

Moreover, there is a variety of testimony over the propriety and breadth of the efforts both sides made to communicate with each other. However, given Parent’s undisputed testimony that unsuccessful efforts were made to schedule an IEP meeting for the preceding two years, it is equally as likely, that Parents assumption regarding an inability to connect to the August 17 virtual meeting “was surely colored, and justifiably so, by the DOE’s prior years of procedural failures.” (IHO Ex. II p. 3).

Furthermore, and unlike in M.F., this situation was more egregious because a placement notice and IEP were not provided until well after the conclusion of the 2020-2021 school year (Tr. p. 207-08, Ex. II p. 5). Additionally, the DOE failed to respond to the August 25, 2020 Notice of Unilateral Placement (Ex. B) which gave notice about a lack of creation of an IEP (Ex. II p. 5).

Based on the foregoing, whatever nonfeasance that is attributable to the Parents, does not warrant a finding of diminution of an award to them. I find that the equitable factors in this case support Parents’ claim for tuition reimbursement and prospective tuition payment for the 2020-2021 school year. The Parents have met the third of the three Burlington/Carter criteria for tuition reimbursement prospective direct tuition payment. Having met all three of the Burlington/Carter criteria, the Parents are entitled to tuition reimbursement for the amount paid toward the School’s tuition and prospective tuition payment for the balance of the cost of tuition for 2020-2021 school year.

Orders

IT IS HEREBY ORDERED that the New York City Department of Education is as of the date of this Order, directed to pay Parents the sum of Redacted dollars, which constitutes reimbursement of the portion of the tuition for the 2020-2021 school year that Parents paid to the School. The entire aforesaid sum will be paid to Parents within two weeks (fourteen calendar days) of the date of this Order; and it is further

ORDERED that the New York City Department of Education is as of the date of this Order, directed to pay School the sum of Redacted dollars, reflecting the balance owed for the Student’s tuition at the School for the 2020-2021 school year. The entire aforesaid sum will be paid to the School within two weeks (fourteen calendar days) of the date of this Order.

Dated March 30, 2021

Ned Kassman_________________

Ned Kassman

Impartial Hearing Officer

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.

DISTRICT EVIDENCE

No. Description Date Pages

EXHIBIT NO.

DATE

DESCRIPTION

NO. OF PAGES

1

8/17/2020

IEP

8

2

8/17/2020

IEP Attendance

1

3

7/24/2020

IEP Mtg Notice

4

4

8/27/2020

PWN

5

5

8/27/2020

SLL

3

6

Various Dates

SESIS Log

14

7

2/9/2016

Neuropsychological Eval

9

8

8/17/2020

IEP Meeting Minutes

5

PARENT EVIDENCE

Exh. #

Description

Date

Pages

A.

Request for Impartial Hearing

1/13/2021

3

B.

Notice of Unilateral Placement 20-21

8/25/2020

2

C.

Psychoeducational Evaluation

2/2019

14

D.

The Redacted School Enrollment Contract

9/20/2020

13

E.

The Redacted School Student Schedule

2020-2021

5

F.

The Redacted School Attendance Record

2020-2021

1

G.

The Redacted School Progress Report

9/2020-11/2020

11

H.

The Redacted School Progress Report

12/2020-3/2021

17

I.

The Redacted School Progress Report

3/2021-6/2021

19

J.

Parent and CSE Email

8/17/2020

1

L. Emails between Redacted and 2/9/2022. 3

Redacted

IHO Evidence

Ex. I DOE Closing Brief and Memo of Law 03/28/2022 10

Ex. II Parent’s Closing Brief 03/28/2022 9

Footnotes

[1] Exhibit K, an unexecuted affidavit was withdrawn at the hearing.

[2] Although there is a discrepancy between the headmistress’ testimony and the Parents testimony regarding the amount owed, since the Parents’ testified that they owe approximately $51,000 thousand more than what the headmistress said is owed and attributed that discrepancy to an error, and since the uncorrected error significantly favored the Parents, it is presumed that the headmistress’ testimony regarding the amount owed was in error.