New York City Department of Education, Impartial Hearing Decision

Case Number: 613894 – NYC: 260870

FINDINGS OF FACT AND DECISION

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

SUBMISSIONS

Case Number: 260870

NYS Identifier Number N/A

Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Dates(s) of Hearing: 12/12/23

Actual Record Close Date: 12/18/23

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

[REDACTED] Representative DOE 12/12/23 (V)

[REDACTED] Attorney PARENT 12/12/23 (V)

[REDACTED] Mother PARENT 12/12/23 (V)

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For # of Pages

N/A N/A N/A DOE N/A

PARENT EXHIBITS

A Impartial Hearing Request 9/13/2023 5

B /25/2023 7

C Absolute-ED Enrollment Agreement 9/1/2023 2

D Amendment to Enrollment Agreement 10/10/2023 4

E Provider Contact Log Undated 1

F Provider Certification Details Undated 1

G Session Log Various 1

Dates

H Assessment Undated 2

I Notice Letter 9/12/2023 1

J Confirmation of Receipt of Notice Letter 9/12/2023 1

K Testimony Affidavit of [REDACTED], 11/24/2023 3

Clinical Supervisor

L Testimony Affidavit of [REDACTED], Director 11/30/2023 2 of Operations

M Testimony Affidavit of [REDACTED], Parent 12/11/2023 2

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

On September 27, 2023, I was appointed the Impartial Hearing Officer (“IHO”) to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 USC § 1415(f)(3), Article 89 of the New York State Education Law, Part 200 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973, concerning a dispute between the Parent of an (8) year old student who attended a private school and the New York City - Department of Education (“DOE”) - District: [REDACTED], regarding the student’s special education program. 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 December 12, 2023. A list of the persons who appeared via affidavits and the documents entered into evidence is annexed hereto.

BACKGROUND

This case was initiated as the result of a written Due Process Complaint (“DPC”) filed by the student’s Parent’s attorney(s), [REDACTED] on or about September 13, 2023, and carried under New York City (“NYC”) Case No. 260870. The Parent herein alleges that the student was denied a “free and appropriate public education” (“FAPE”) for the 2023-2024 school year. At the impartial hearing, the Parent request the following relief:

(a) An “order on Pendency” based upon the “Findings of Facts & Decision” (“FOFD”) dated April 25, 2023; and

(b) Provision of (5) periods, per week, of SETSS and related services funded at an enhanced rate; and

(c) Provision of (30) minutes of 1:1 counseling services at an enhanced rate; and

(d) Issuance of “Related Service Authorizations” (“RSAs”) or other funding mechanism for agreed upon services.

At the hearing, the Parent withdrew her request for counseling services and requested only SETSS services as and for her relief. (T-9-10)

THE DOE’S CASE

The NYC-DOE did not call any witnesses to testify on its behalf and did not submit any documents in evidence. (T-6-9) The NYC-DOE did not defend “FAPE” and did not challenge the presumption in the law that the Parent has cooperated with the agency. (Supra)

THE PARENT’S CASE

The Parent called (3) witnesses to testify on her behalf, on direct testimony via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f]. (P-K, P-L & P-M) The NYC-DOE did not object to the testimony and declined to cross examine the Parent’s affiants. (T-8-9) The Parent also submitted (13) documents in evidence. The NYC-DOE did not object to the Parent’s documents being received in evidence. (T-6-9) 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 [2nd Cir. 2005])

The first step is to determine whether the DOE offered to provide the student with a FAPE. (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2nd 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)

DOE DEFAULT

The NYC-DOE failed to call any witnesses to testify on its behalf, did not submit any documents in evidence, failed to file and serve an answer or serve a “Prior Written Notice” in this case, and did not make an opening or a closing statement. (See 20 U.S.C. 1415(f)(3)(e) & T-6-9) “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, 4th 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 NYC-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 NYC-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 for the 2023-2024 school year. As previously noted, the NYC-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 (1st 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 NYC-DOE did not present a case-in-chief and did not controvert the testamentary or 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 NYC-DOE’s failure to present a case at the hearing is a concession that it denied the student a FAPE for the 2023-2024 school year 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 NYC-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 NYC-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 for the 2023-2024 school year and that the Parent may be entitled to the proven relief she has requested.

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])

APPROPRIATENESS OF THE RELIEF SOUGHT

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"]])

In sum, substance and relevant part, the testimony on behalf of the Parent is as follows: The private provider’s “Clinical Supervisor” testified that the student was receiving SETSS services at his school. (P-K) Services are provided both inside and outside of the classroom in 1:1 and small group sessions that include individualized instruction. (Id.) The student has shown notable progress and requires (5) hours per week of SETSS services for the 2023-2024 school year. (Id.)

The “Director of Operations” testified that the student receives (5) hours of SETSS services at his school. (P-L) The rate charged for these services is $300 per hour. (Id.) To date, the student has received (50) hours of services at a cost of $15,000. (Id.) The anticipated cost for the student’s 2023-2024 school year, based on (40) weeks of services of (5) hours per week at the cost of $300 per hour. (Id.) Although the Parent is financially responsible for the cost of these services based upon the contract she signed, it is his understanding that the Parent is seeking to have the services paid for by the NYC-DOE and the agency has allowed the Parent to defer payment. (Id.)

The student’s mother testified that the student’s IESPs dated June 8, 2022 and May 10, 2023, recommend that he receive SETSS services (5) times per week along with counseling services. (P-M) For the 2023-2024 school year, she did not hear from the NYC-DOE and the student’s private school contacted providers on the NYC-DOE list on her behalf. (Id.) None of the providers contacted were willing to work with the student at the NYC-DOE prevailing rate. (Id.) She had to find her own provider. Her attorneys sent a letter to the NYC-DOE that she was unable to find a NYC-Doe provider. (Id.) She signed a contract with the private provider for the student to receive SETSS services during the 2023-2024 school year and has made no payments towards the cost of those services. (Id.) The cost of the services is a “financial hardship” for her. (Id.)

“SETSS” SERVICES

Whereas SETSS are not defined in State or federal laws or regulations and are not identified on the State continuum of special education services. (See SRO No. 16-044); and Whereas a reference to the service as "direct" is in keeping with the language used in State regulations for consultant teacher services (See 8 NYCRR 200.6[d]); and Whereas State regulations distinguish between "direct consultant teacher services," which consist of "specially designed individualized or group instruction provided by a certified special education teacher . . .to a student with a disability," from "indirect consultant teacher services," which consist of "consultation provided by a certified special education teacher . . .to regular education teachers" (See 8 NYCRR 200.1[m] [emphasis added]; see also 8 NYCRR 200.6[d]); and Whereas the Parent submitted in evidence a affidavits from the private provider that “estimates” the number of hours the student was serviced and will be serviced during the 2023-2024 school year (P-K & P-L); and Whereas the Parent’s DPC does not acknowledge whether or not she received a “DOE “P-3” authorization for SETSS services at the established NYC-DOE rate; and Whereas there is no evidence that the Parent herself complied with or was afforded the opportunity to comply with the NYC-DOE’s SETSS Authorization Form instructions that state in relevant part: “If you need assistance locating a provider, or if you have any questions, please contact the DOE person listed in Section 1 of this form.”; and Whereas the Parent’s efforts to secure a NYC-DOE provider amount to only (7) alleged contacts made by the student’s school on her behalf, with no dates, times or manner in which the alleged attempted contacts were made provided, and no affidavit sworn to regarding said attempts by the person who actually made the attempts (P-E & P-M); and Whereas the record does evidence the Parent’s compliance with the known requirements of the NYC-DOE SETSS authorization form, but also nevertheless, does not evidence bona fide attempts to secure a NYC-DOE provider; and Whereas equitable considerations are relevant to fashioning relief under the IDEA. (See Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194, M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000], and Carter, 510 U.S. at 16 [noting that "[c]ourts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]); and Whereas the IDEA also provides that reimbursement may be reduced or denied when Parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the Parents. (See 20 U.S.C. § 1412[a][10][C][iii], 34 CFR 300.148[d], E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school] and C.L., 744 F.3d at 840 [noting that "[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"]); and Whereas the Parent submitted in evidence a contract that she signed with the private provider, which references that it is for the 10-month 2023-2024 school year; and Whereas the contract does not indicate the number of hours the services are being contracted for (P-C & P-D); and Whereas the Parent has made no payments under the contract, has not been invoiced for payments, the contract contemplates her payments are deferred, contemplates payment of the services by the NYC-DOE, but also does assert that the Parent shall pay for the services if the NYC-DOE does not pay; and Whereas “The fundamental basis of a valid, enforceable contract is a meeting of the minds of the parties, and, if there is no meeting of the minds on all essential terms, there is no contract.” (See Benicorp Ins. Co. v. National Medical Health Card Sys., Inc., 447 F. Supp. 2d 329, 337 (S.D.N.Y. 2006); and Whereas it is a basic tenant of contract law that an offer must be so definite as to its material terms or require such definite terms in the acceptance that the performance to be rendered by each party is reasonably certain. (See Contracts 2nd Edition, Calamari & Perillo); and Whereas the contract is void if the content of the agreement is unduly uncertain. (Id.); and Whereas while “indefiniteness” in a contract may be cured by the subsequent conduct of the parties or by a subsequent agreement of the parties, there is no evidence in the record that such conduct or agreement by the parties has occurred in this case. (Supra); and Whereas it has long been held, and it is well settled in the law that in cases of doubt or ambiguity, a contract must be construed most strongly against the party who prepared it and favorably to a party who had no voice in the selection of its language. (See 4 Williston, Contracts, § 621 and 10 NY Jur, Contracts, § 223); and Whereas here, there is no doubt that the relevant contract was drafted by the private agency (P-C & P-D); and Whereas accordingly, the ambiguity cited above concerning the amount of hours the agreement calls for, whether a new payment schedule is required in case of a default, or whether the entire balance under the agreement is due would be held against the private provider, not the Parent, who as a consequence would escape any liability under the agreement; and Whereas it is well established that in fashioning relief, IHOs retain the discretion to reduce or deny tuition funding or payment requests where there is collusion between Parents and private schools, or where there is evidence that the private school has artificially inflated its costs, because since the Parents have selected the unilateral placement, and their financial status is at issue the Parents have the burden of production and persuasion with respect to whether they are legally obligated for the student's tuition payments. (See Mr. and Mrs. A. v. New York City Dept. of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. Feb. 1, 2011) emphasis added); and Whereas there is no indication that the private provider has taken any measures to collect payment by way of invoices sent to the Parent, or by threatening and/or pursuing legal action against her for the fees owed; and Whereas under the circumstances, I find that the private provider contract really contemplates payment of the private provider fees by the NYC-DOE and not the Parent; and Whereas thus, the Parent herein appears to be a “straw person” bring the instant claim on behalf of the private provider, not himself; and Whereas the private provider contract is ambiguous and indefinite in its terms; and Whereas it has long been held that where the contents of an agreement are unduly uncertain, no contract is formed. (See Restatement, Second Contracts § 32, 1 Corbin § 95 and 1 Williston § 37); and Whereas it is well settled that Parents who choose to unilaterally place their child at a private school or secure private services without consent or referral by the school district do so at their own financial risk. (See Carter, 510 U.S. at 15, Burlington, 471 U.S. at 373-74 and Forest Grove, 129 S. Ct. at 2496); and Whereas the United States Supreme Court in Burlington held that “retroactive reimbursement” of private educational expenses is appropriate as an available remedy under the IDEA. (See Burlington, 471 U.S. at pp. 370-71, Carter, 510 U.S. at 14-15, Gagliardo, 489 F.3d at 111 (2d Cir. 2007), explaining that parents who believe that their child has been denied a FAPE may, at their own financial risk, enroll the child in a private school and seek retroactive reimbursement for the cost of the private school], DiazFonseca v. Commonwealth of Puerto Rico, 451 F.3d 13, 32, 40 (1st Cir. 2006), concluding that reimbursement under the IDEA allows parents to recover only actual, not anticipated, expenses for private school tuition and related expenses, Cerra, 427 F.3d at 192, noting the availability of "retroactive tuition reimbursement" under the IDEA, Muller v. Comm. on Special Educ. of East Islip, 145 F.3d 95, 106 (2d Cir. 1998), holding that compensation for "out of pocket expenses" was appropriate, Streck v. Bd. of Educ., 2009 WL 2163090, at * 2 (N.D.N.Y. July 17, 2009) and Emery v. Roanoke City Sch. Bd., 432 F.3d 294, 299 [4th Cir. 2005]); and Whereas while the IDEA provides that a court shall grant such relief that is determined to be appropriate (20 U.S.C. § 1415[i][2][C][iii], Forest Grove, 129 S. Ct. at 2488); and Whereas the IDEA does not expressly provide for prospective payment of tuition costs or services; and Whereas the IDEA does provide that “a court or a hearing officer may require the “school district” to reimburse the parents for the cost of “private school” enrollment or private services if the court or hearing officer finds that the school district had not made a FAPE available to the child in a timely manner prior to that enrollment.” (See 20 U.S.C. § 1412[a][10][C][ii], 34 C.F.R. § 300.148[c] and SRO Nos.: 09-001, 07-032, 08-050 & 04-037); and Whereas there is no evidence in the hearing record indicating that, under the circumstances, the Parent has made any meaningful effort to secure a NYC-DOE provider, has made payments to the private provider, or that the private provider has ever sought payment of its fees for the 2023-2024 school year from the Parent, or that it has any real viable intention of doing so. (See S.W. v. New York City Dep't of Educ., 2009 WL 857549, at *8-*9 (S.D.N.Y. March 30, 2009]); and Whereas accordingly, I must find that the Parent cannot seek tuition reimbursement or prospective relief on behalf of the private provider; and Whereas the evidence contained in the hearing record supports a finding that it was the private provider, not the Parent, who incurred the financial burden associated with the student's SETSS services for the 2023-2024 school year. (See S.W., 2009 WL 857549, at *7-*9, parent had no financial standing to sue for direct prospective payment to private placement where terms of enrollment contract absolved her of responsibility for paying tuition); and Whereas the private provider is not a party in this case and is, therefore, not entitled to relief under the IDEA. (Id.); and Whereas however, that the United States Court of Appeals for the Second Circuit has determined that under the pendency doctrine, school districts may be required to directly fund pendency placements (Bd. of Educ. v. Schutz, 290 F.3d 476, 482-84 [2d Cir. 2002] and Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d195, 200-01 (2d Cir. 2002) and that courts have awarded “prospective payment” to afford access to compensatory education. (See, e.g., Streck v. Bd. of Educ., 2008 WL 2229141 (2d Cir. May 30, 2008) and Draper v. Atlanta Indep. Sch. System, 518 F.3d 1275, 1286 (11th Cir. 2008); and Whereas a public agency may, under certain circumstances, place a student in an approved private school, however if it does so, the placement must be a public expense and meet state standards. (See 20 U.S.C. §1412[a][10][B]])

Whereas where a Parent is seeking “prospective” payment for their unilateral placement, the Parent bears the burden of production and persuasion with respect to whether the Parent has the financial resources to front the tuition costs and the Parent herein has not submitted evidence in this regard such as tax returns or payment stubs. (See Mr. & Mrs. A. v. New York City Dep’t of Educ., 2011 WL 321137 at *22 (S.D.N.Y.

Feb. 1, 2011); and Whereas the Parent cannot assert a claim for the particular relief he has requested on behalf of the private school, which lacks standing under the IDEA to maintain a claim against the NYC-DOE in its own right. (See Emery, 432 F.3d at 299, Piedmont Behavioral Health Center LLC v. Stewart, 413 F.Supp. 2d 746, 755-56 (S.D. W.Va. 2006) and Malone

v. Nielson, 474 F.3d 934, 937 [7th Cir. 2007]) The Parent might argue that he is entitled to direct funding under Connors v. Mills, 34 F. Supp. 2d 795, 805-06 (N.D.N.Y. 1998); and Whereas however, in Connors, the Court dismissed the Parents' claim for tuition and in dicta discussed the concept of “prospective” tuition payment after the Court made a finding that the school district conceded that it could not provide an appropriate education for the student and that the private placement could. (Id. at 34 F. Supp. 2d at 806)

Whereas in the case at bar, the Parent’s efforts to secure a NYC-DOE provider are found to be cursory at best and insufficient to support a finding that there were no NYC-DOE providers available for the 2023-2024 year; and Whereas, for all of the reasons stated herein, I find that the Parent in this case is not entitled to an enhanced rate for SETSS services that the student receives at his private school via a private provider that is allegedly paid $300 per hour. (Supra, see also 20 U.S.C. § 1412[a][10][C][ii], 34 C.F.R. § 300.403[c], Burlington, 471 U.S. 359; Carter, 510 U.S. 7, A.A. v. Bd. of Educ., 196 F. Supp. 2d 259 (E.D.N.Y. 2002) and SRO Nos.: 09-001, 08-050, 07-032 & 04-037); and Whereas there is no evidence in the hearing record to establish that the Parent has incurred any bona fide financial obligation to pay the difference between the enhanced rate and the NYC-DOE rate; and Whereas, therefore, even if the Parent prevailed on the merits of her claim, it would be unclear at this juncture whether or not any relief would be warranted absent evidence that the provider was owed additional compensation based on a bona fide agreement with the Parent or the NYC-DOE; and Whereas it is unnecessary to speculate on this state of affairs since the evidence in the hearing record does not support a finding that the NYC-DOE failed to make available to the student SETSS services on an equitable basis. (See Educ. Law § 3602c[2][b][1]); and NOW therefore, it is hereby

ORDERED upon the NYC-DOE’s DEFAULT and after INQUEST that pursuant to the “pendency” provisions of the law, the NYC-DOE shall pay the cost of the student’s mandated services as detailed in the Findings of Fact & Decision (“FOFD”) dated April 25, 2023 (P-B), a copy of which shall accompany this decision and order for reference, at the private provider’s cost and via RSAs, from the date the Parent filed her instant DPC on September 13, 2023, to the date of this decision and order below; and it is further

ORDERED upon the NYC-DOE’s DEFAULT and after INQUEST that the NYCDOE’s default constitutes a denial of FAPE for the student’s 2023-2024 school year and that upon its receipt of reasonably satisfactory of services having been rendered, the NYC-DOE shall either reimburse the Parent and/or directly pay the cost for the student’s receipt of (5) hours per week of special education services (“SETSS”) on a 1:1 basis, at a cost that shall not exceed the prevailing NYC-DOE rate for these services, from the date of this decision and order below, until the end of the student’s 2023-2024 school year, as well as for any of these services the student missed on a one-for-one basis, for the failure of the NYC-DOE to properly and timely provide services under “pendency” (missed services shall be paid at the private provider’s rate), and for the other services the student is mandated to receive via the FOFD dated April 25, 2023 (P-B), they shall be paid via RSAs or at a cost not to exceed the reasonable and fair market rate cost for such services in New York City, from the date of this decision and order below to the end of the student’s 2023-2024 school year; and it is further

ORDERED upon the DOE’s DEFAULT and after INQUEST that the NYC-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 2024-2025 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 IESP for the student’s 2024-2025 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: December 29, 2023 _____________________________

New York, New York Edgar De Leon - I.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)