NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
1. NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 17, 2023
For the Student:
REDACTED Attorney
REDACTED, Parent Student
REDACTED, Supervisor, REDACTED
For the Department of Education:
REDACTED, District Representative
2. NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 26, 2023
For the Student:
REDACTED., Attorney
REDACTED, Financial Director, REDACTED
For the Department of Education:
REDACTED, District Representative
3. NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 10, 2023
For the Student:
REDACTED., Attorney
For the Department of Education:
REDACTED, District Representative
ISSUES
This matter comes before your undersigned Impartial Hearing Officer (“IHO”) through the Parent’s Due Process Complaint (“DPC”) filed on or about September 6, 2022 (P-Ex. A) [1]. The DPC alleges that the DOE failed provide the Student with a Free Appropriate Public Education (“FAPE”) as required by the Individuals with Disabilities Education Act (“IDEA”) by failing to provide Student with appropriate services during the 2022-2023 school year. (P-Ex. A).
Parent, on behalf of Student, is seeking the following:
1. A finding that the failure of the DOE to convene and recommend placement or services is a denial of FAPE;
2. Absent an up-to-date program, an Order that the DOE continue to fund the program outlined in the IESP dated October 14, 2020 at the provider’s prevailing rate;
3. An Order that the DOE fund a bank of compensatory periods of all services which Student is entitled to under Pendency for the entire 2022-2023 school year, or the parts of which were not serviced;
4. Payment of attorney’s fees and expenses associated with Parent’s representation in this matter; and
5. Any such further relief that this hearing officer may deem just and proper to ensure that Student receives a FAPE;
PROCEDURAL HISTORY
A prehearing conference was held on October 24, 2022. On or about November 1, 2022, a Pendency Hearing was held, and pendency was subsequently granted. Thereafter, several status conferences were held, and the matter was set down for an impartial hearing.
On April 17, 2023, an impartial hearing commenced and continued on June 26, 2023, and July 10, 2023. Each side entered documents into the record as exhibits, made opening arguments and submitted written and oral closing arguments. The DOE did not call any witnesses and did not defend FAPE, as they argued that this was an equitable services matter only and that as a parentally placed student, Student was not entitled to a FAPE.
Parent was represented by counsel, submitted numerous documents into the record and further submitted the sworn affidavits of Parent and two Providers. Both Parent and Providers were available for cross examination and/or questions by your undersigned IHO and/or the DOE.
FINDINGS OF FACT
Student has been parentally placed at a private school during the 2022-2023 school year and thus is subject to an IESP (P-Ex. A, B).
The last IESP developed by the District’s Committee on Special Education (“CSE”) was dated October 14, 2020, and mandated that Student receive Special Education Teacher Support Services (SETSS): Direct Service, Individual Service, Yiddish, 10 periods per week in a General Education Classroom. The IESP also recommended Counseling services, individual in Yiddish, 1x30 minutes per week in a separate location provider’s office, Occupational Therapy, individual, English 2x30 minutes per week in a separate location provider's office, Speech-Language Therapy, individual, Yiddish, 2x30 minutes per week in a separate location provider’s office, and Speech-Language Therapy, Group, Yiddish 1x30 minutes per week in a separate location provider’s office.
The IESP notes that Student has experienced auditory processing deficits, social and emotional deficits and language processing difficulties (P-Ex. B).
Parent testified that Student has significant challenges academically, emotionally, and socially and with anxiety (T. 61). Student struggles with following instructions and following through with work that needs to be done in class. Student is aware of her struggles, is very selfconscious and has expressed that said struggles make her feel different from her peers (T. 61). Parent further testified that correction of Student’s errors cause her to become upset and withdrawn (T.61).
Parent additionally testified that Student struggles to retain information, struggles in math, history, reading, and writing comprehension (T.62).
Parent testified that she agrees with the services mandated under the current IESP and that since the October, 2020 IESP, there have been no further IEP meetings with the District for Student (T.63). When the District did not provide Student with related services providers, Parent attempted to find providers for the services mandated by the IESP as that the District did not reach out to her regarding the providers (T. 63). Parent made numerous phone calls, asked around in her community, to schools, friends, and family to attempt to locate her own providers (T.63). After exhausting all these avenues, On August 25, 2022, Parent send a ten-day notice, by email, to the District informing them that she would implement the program on her own and seek reimbursement or direct payment from the DOE (T.64) (P-Ex. C). Parent did not receive a response to this letter (T. 64).
Parent located the Private Agency to provide SETSS services at ten hours per week and is obligated to pay for said services under a contract that she executed with them (T. 64) (P-Ex. G). However, Parent was not able to locate providers for the mandated counseling, occupational therapy and speech-language therapy (T.65).
A Supervisor, (hereinafter “Supervisor”) at the Private Agency also testified that Student received SETSS services at 10 hours per week with a provider who is certified birth through grade 2 for students with disabilities (T.79). The Supervisor testified that Student stuffers not only academically, but also emotionally and with anxiety related issues (T.80). The Supervisor further testified that Student has made progress with the provider agency and is “doing the best that she can be doing” (T.81). The provider agency is tailoring Student’s work to her needs to help her function in a general education classroom and make progress therein (T. 81). To monitor Student’s progress, she is subject to assessments and progress reports, as well as session notes (T.81, 82). Based upon all the assessments, the Supervisor testified that while Student has made progress (T.81, 83), she is still lagging very much behind her peers and thus requires a continuation of services (T.82).
Parent’s final witness was the Financial Director at the private agency (hereinafter “Financial Director”) who testified by way of affidavit (P-Ex. D), that Student received ten (10) hours per week of SETSS during the 2022-2023 school year at a rate of One Hundred and NinetyFive ($195) Dollars per hour. Upon cross examination, the Financial Director testified that this rate consists of salary to the provider, supervision of the provider, materials, curriculum based upon the child’s need, bookkeepers, payroll, and various office expenses such as rent and utilities (T.107, 108). The rate further includes loans and cash advances to pay providers and overhead while awaiting the DOE’s implementation unit to fund outstanding balances (T.108).
The Financial Director testified that services for Student, and thus Parent’s financial obligations began on September 28, 2022 (T.110).
CONCLUSIONS OF LAW:
“A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412[a][1][A]; Educ. Law § 4402[2][a], [b][2]). However, the IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137[a]). Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a], [c], 300.138[b]).” see: Application of a Student with a Disability, Appeal No.23-122. “However, under State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the public school district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]). "Boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent" (Educ. Law § 3602c[2][a]). In such circumstances, the district of location's CSE must review the request for services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602-c[2][b][1]). The CSE must "assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district (id.). Thus, under State law an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district, that is dually enrolled, for the purpose of receiving special education programming under Education Law § 3602-c, dual enrollment services for which a public school district may be held accountable through an impartial hearing. The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see: R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]).” see: Application of a Student with a Disability, Appeal No.23-122.
ANALYSIS:
I. STUDENT IS ENTITLED TO A FAPE, THE DOE DENIED STUDENT’S
RIGHT TO A FAPE AND WAIVED CLAIMS RELATED TO TIMING:
In the instant matter, Student has been parentally placed in a nonpublic school. The DPC does not contain a claim for tuition reimbursement for the cost of the student's attendance at said school. Parent alleged that the last program developed for the student was the October 2020 IESP and that the district did not supply any providers to deliver services to the student during the 2022-2023 school year, and as a result, she unilaterally obtained services from the Private Agency after providing ten-day notice to the DOE and thereafter receiving no response.
Accordingly, the issue in this matter is whether the parent is entitled to public funding of the costs of the private services. "Parents who are dissatisfied with their child's education can unilaterally change their child's placement . . . and can, for example, pay for private services, including private schooling. They do so, however, at their own financial risk. They can obtain retroactive reimbursement from the school district after the [IESP] dispute is resolved, if they satisfy a three-part test that has come to be known as the Burlington-Carter test" (Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 526 [2d Cir. 2020] [internal quotations and citations omitted]; see: Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 14 [1993] [finding that the "Parents' failure to select a program known to be approved by the State in favor of an unapproved option is not itself a bar to reimbursement."]).
Therefore, Parent's request for the DOE to fund their privately obtained services must be assessed under this framework. Thus, a board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Carter, 510 U.S. 7; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 [2d Cir. 2009]). 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 (471 U.S. at 370-71; see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 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; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
The District in this matter has alleged as a defense that Parent failed to provide notice prior to the previously discussed June 1 deadline and is thus not entitled to a FAPE (T.115-118). Under the IDEA, the burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief (see Schaffer v. Weast, 546 U.S. 49, 59-62 [2005] [finding it improper under the IDEA to assume that every IEP is invalid until the school district demonstrates that it is not]). However, under State law, the burden of proof has been placed on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.F. v. New York City Dep't of Educ., 746 F.3d 68, 76 [2d Cir. 2014]; R.E., 694 F.3d at 184-85).
In her due process complaint notice, Parent alleges that the district was obligated to, but failed to, convene a CSE, develop an IESP, and deliver services to the student during the 2022-23 school year (see Parent Ex. A). The district failed to present evidence to counter such allegations. Thus, the district failed to meet its burden of production and persuasion.
Further, as Parent argues, the district waived the June 1 notice defense in this case. The district had several opportunities to raise the issue of the June 1 deadline, including at the October 24, 2022 prehearing conference, the November 1, 2022 Pendency Hearing, the November 29, 2022, January 4, 2023, February 1, 2023, or March 9, 2023 status conferences; however, the DOE failed to do so (see generally Tr. pp. 1-44). The first time that the DOE raised this issue was at the impartial hearing on April 17, 2023, and only through the cross examination of Parent, and then not again until the DOE’s closing argument and written closing brief.
There is also no evidence in the hearing record showing that the district responded to the parent's due process complaint notice in accordance with State regulations which require a district to respond to a due process complaint notice within 10 days of receipt if it has not yet sent the parent prior written notice regarding the subject matter of the parent's due process complaint notice (8 NYCRR 200.5[i][4]). Application of the Bd. of Educ., Appeal No. 18-088 explicitly addressed the waiver of the June 1 deadline and found that a district may through its actions waive it as a defense. Therefore, based on the above, I find that Student was in fact entitled to equitable services under Education Law Section 3602-c and having done so, the district's failure to implement equitable services in this matter constitutes a denial of FAPE.
II. Appropriateness of Unilaterally Obtained – SETSS Having already found that the DOE failed to meet its burden, it is now necessary to discuss the appropriateness of the parent’s requested relief.
State Education Law places the responsibility for implementation of the services set forth in an IESP on the DOE. However, since I have found that Student was denied a FAPE in this matter as there was no point during the impartial hearing where the DOE offered any evidence that it attempted to select or assign a SETSS provider to deliver the services required by Student’s IESP, and there was also no explanation from the DOE as to why it did not just schedule the services, at which time Parent would have had the responsibility to produce Student for such services. This left Parent with no other option than to locate a provider on Parent’s own.
This failure on the part of the DOE to meet its obligation to find SETSS providers to implement the SETSS services at an acceptable rate is improper as that it is the DOE’s nondelegable responsibility to ensure that services are delivered, whether in accordance with an IESP, an IEP, or pursuant to the stay put rule, and cost is not a permissible reason to defer or avoid the obligation to implement a student's services (see Application of a Student with a Disability, Appeal No. 20-087; Educ. Law § 3602- c[2][a]; [7][a]-[b] [providing that "[b]oards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts" and that the cost for services is recoverable from the district of residence, either directly with the consent of the parent for a district of location to share information or through the Commissioner of Education and the State Comptroller]).
As discussed, Parent's request for DOE’s funding of SETSS for the 2022-2023 school year must be assessed under the Burlington Carter framework; namely, having found that the DOE failed to offer or provide appropriate equitable services, the issue is whether the periods of SETSS obtained by Parent from the provider constituted an appropriate unilateral placement of Student such that the cost of the SETSS is reimbursable to Parent or, alternatively, should be directly paid by the DOE to the provider upon proof that the Parent has paid for the services or is legally obligated to pay and does not have the means to do so. “Parents are required to cooperate with the provision of services by producing a child for services properly arranged for by the district. The State Education Department only permits local educational agencies to contract for the use of teachers and personnel in private settings that have been approved by the Commissioner of Education, and upon such approval the State's rate setting unit routinely addresses the issue of establishing local rates that districts may pay such private entities (see http://www.oms.nysed.gov/rsu/).” see: Application of a Student with a Disability Appeal No. 21-101.
As a result, the question of rate is somewhat beside the point as the cost of the SETSS under the Burlington-Carter test, must be fully reimbursed or directly funded by the DOE unless, as a matter of equitable considerations, the costs sought to be reimbursed are excessive or otherwise should be reduced or, in the case of direct funding, the Parent has not demonstrated a legal obligation to pay the costs and an inability to do so.” (see: Application of a Student with a Disability, Appeal No. 21-101.
Here, the appropriateness of the SETSS delivered to Student by the Providers are not in dispute in this matter as it is the same service recommended on the last agreed upon IESP of October 2020. I therefore find that the SETSS delivered to Student was appropriate.
III. Balancing the Equities:
Therefore, it is now necessary to determine equitable considerations. This is a necessary requirement under the “…IDEA (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]; 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. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]).” (See: Application of a Student with a Disability, Appeal No. 21-101. “Among the factors that may warrant a reduction in tuition under equitable considerations is whether the frequency of the services or the rate for the services were excessive a (see: E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [noting that whether the amount of the private school tuition was reasonable is one factor relevant to equitable considerations]). The IHO may consider evidence regarding whether the rate charged by the private agency was unreasonable or regarding any segregable costs charged by the private agency that exceed the level that the student required to receive a FAPE (see: L.K. v. New York City Dep't of Educ., 2016 WL 899321, at *7 [S.D.N.Y. Mar. 1, 2016], aff'd in part, 674 Fed. App'x 100 [2d Cir. Jan. 19, 2017]).” (See: Application of a Student with a Disability, Appeal N0. 21-101. The SETSS Agency Financial Director in this matter testified that the rate charged for a SETSS provider is $195 per hour and further testified that this rate includes many other overhead type costs other than just the provision of services (P-Ex.D)
Parent testified that she signed a contract with the agency which obligates her to pay for the services in the event she does not prevail in the within decision. (P-Ex.G-1, T.64).
Here, the DOE did not defend FAPE and did not argue that the requested hours were excessive or even inappropriate or that the rate requested is excessive or inappropriate to the facts of this case and Student. Accordingly, there is no basis for your undersigned IHO to find either to be inappropriate or excessive. As previously noted, the services delivered by the provider were the exact same services mandated in Student’s IESP developed by the DOE (P-Ex. B).
Therefore, I find that the services provided to Student by the Provider shall be reimbursable at a rate of $195 per hour paid to the SETSS provider.
IV. Compensatory Services
As a remedy for denial of FAPE, Parent is seeking 20 hours of counseling services, 40 hours of occupational therapy, and 60 hours of speech-language therapy, all of which to be funded at reasonable market rate with a provider of parent’s choosing for use over the next two years to correspond to the 40 weeks missed by Student for the 2022-2023 school year.
This is an obvious remedy in the present case when there is an essentially unchallenged dereliction on behalf of the Department of Education. In awarding compensatory education, the two controlling approaches have been the “quantitative method” favored by the Third Circuit[2] and the “qualitative method” favored by the Sixth and D.C. Circuits.[3] Neither the Second Circuit nor the New York Courts have taken a position on the controlling approach which grants hearing officers discretion as to which method to utilize. See Student X v. New York City Dep’t of Educ., 51 IDELR 122 (E.D.N.Y. 2008).
In the present case, given the issues related to equity, I prefer the qualitative method as that the award, “must be reasonably calculated to provide the educational benefits that likely would have accrued.” Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005). This must be done utilizing a fact analysis of the student’s current progress against the past harm and meet specifically what is required. See Mary McLeod Id. It also must be noted that a presently appropriate educational program doesn’t abate the need for compensatory education. See D.W. v. District of Columbia, 437 F.Supp.2d 22 (D.D.C. 2006). A sufficient record regarding the amount of compensatory education is essential in determining an award while utilizing the qualitative method. A hearing officer must have, “insight about the precise types of education services the [the student] needs to progress.” Mary McLeod, Id. The present record does possess such specificity. The Parent’s testimony was clear that she requests the above referenced hours, and that said hours were mandated under Student’s last agreed upon IESP but were never delivered to Student during the forty weeks of the 2022-2023 school year (P-Ex. B, T.65). I therefore find that Student is entitled to 20 hours of counseling services, 40 hours of occupational therapy, and 60 hours of speech-language therapy, all of which to be funded at reasonable market rate with a provider of parent’s choosing for use over the next two years to correspond to the 40 weeks missed by Student for the 2022-2023 school year.
ORDER:
Based upon the Findings of Fact and Conclusions of Law, it is hereby Ordered:
1. ORDER: That the Department of Education reimburse the Special Education Teacher Support Services (SETSS) for the 2022-2023 school year in the amount of Ten (10) periods of SETSS services per week, at the rate of One Hundred and Ninety-Five ($195.00) Dollars per hour directly funded to the provider, to the extent not already paid under Pendency.
2. ORDER: That Student receive a bank of 20 hours of counseling services, as compensatory services, to be funded by the DOE at reasonable market rate with a provider of parent’s choosing for use over the next two years to correspond to the 40 weeks missed by Student for the 2022-2023 school year.
3. ORDER: that Student receive a bank of 40 hours of occupational therapy to be funded by the DOE at reasonable market rate with a provider of parent’s choosing for use over the next two years to correspond to the 40 weeks missed by Student for the 2022-2023 school year.
4. ORDER: that Student receive a bank of 60 hours of speech-language therapy to be funded by the DOE at reasonable market rate with a provider of parent’s choosing for use over the next two years to correspond to the 40 weeks missed by Student for the 2022-2023 school year.,
5. IT IS ORDERED that; should the DOE once again fail to develop an IESP for STUDENT for the 2023-2024 School year, then the services in the most recent IESP are ORDERED to be continued.
6. ORDER: All remaining claims are denied for lack of evidence in the record.
SO ORDERED
Dated: August 8, 2023
J. Mazzei
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.
APPENDIX A – PERSONALLY IDENTIFIABLE INFORMATION
REDACTED by and through their parent, REDACTED
v. New York City DOE
PARENT REDACTED
PRIVATE AGENCY FINANCIAL DIRECTOR REDACTED
PRIVATE AGENCY SUPERVISOR REDACTED
SETTS AGENCY REDACTED
APPENDIX B – EVIDENCE SUBMITTED INTO THE RECORD
REDACTED by and through their parent, REDACTED v. New York City DOE
DISTRICT EVIDENCE:
EXHIBIT DATE NAME PAGES
1. PWN 10/19/2020 4 pages DOE
2. Parent’s Request for Re-evaluation 08/07/2020 2 pages DOE
3. Email from Parent Rejecting Testing 08/18/2020 1 page DOE
4. Closing brief PARENT EVIDENCE: PARENT DISCLOSURE Number 07/10/2023 8 pages DOE
A. Letter Date Name of Document of Pages DPC 9/2/2022 6 pages
B. IESP 10/14/2020 14 pages
C. TDN 8/25/2022 2 pages
D. Affidavit of Rate - REDACTED 1 page
E. Progress Report 6/21/2022 4 pages
G. F Provider Credentials 1 Contract 12/27/2022 1 page
H. closing brief IHO EVIDENCE: NONE 07/10/2023 10 pages
Footnotes
[1] Exhibits shall be referred to as follows: “P” for Parent Exhibit; “D” for the District’s or Department’s Exhibits; and “IHO” for the Impartial Hearing Officer’s exhibits.
[2] See M.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389 (3d Cir. 1996)
[3] See Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005); Bd. Of Educ. of Fayette Cty., Ky., v. L.M., 479 F.3d 307 (6th Cir. 2007) cert. denied, 522 U.S. 1042 (2007)