Call Now To See How I Can Help! (718) 618-5995

The Law Office of Michael F. Dailey

NEW YORK STATE EDUCATION DEPARTMENT

OFFICE OF STATE REVIEW

_______________________________________________

IN THE MATTER OF THE APPEAL OF

 Norman Redacted and Ruth Redacted,

On behalf of Rian Redacted,

Petitioners

-against-

 The New York City Department of Education Respondent.

________________________________________________

Memorandum of Law

Dated: December 20, 2020

Bronx, New York

 

                                                                                   Respectfully submitted,

                                                                                    _________________________

                                                                                    Michael F. Dailey, Esq.

                                                                                    One Riverdale Avenue,

                                                                                    Mailbox Eleven

                                                                                    Bronx, NY 10463

                                                                                    (718)543-0100

                                                                                    mikedaileylaw@gmail.com

 

Statement of the Case

On July 18, 2016, at a Pendency Hearing, an agreement was made between the DOE and the Parents, without any limitation of time, establishing Pathways School as the “Then Current Educational Placement” for the Student. This agreement was memorialized by the hearing officer in his order of pendency. There has been no intervening agreement of a hearing officer, or agreement between the DOE and the parents, changing the status of Pathways as the “Then Current Educational Placement” for the Student. The Parents are seeking payment of the Student’s tuition at Pathways School pending a final resolution of the Parent’s current Due Process Complaint pursuant to the law of pendency.

Pertinent Facts of Case

The facts underlying the Parent’s contentions are as follows:

Via Findings of Fact and Decision dated April 25, 2014, Impartial Hearing Officer Judith Schneider ordered that “The DOE shall promptly reimburse the parent …for the 2013-2014 school year at Standing Tall.” H.O. Schneider also noted that “There are currently 6 children in the student’s class who are functioning at a similar level which benefits the student.” (See Hearing Exhibit B).

During a pendency hearing the following year, the DOE agreed that going forward the Pathways School would be treated as the “then current educational placement of the student,” in place of Standing Tall. This agreement was first put on the record by Impartial Hearing Officer Bruce Olinger and the DOE representative thereat, as follows:

Hearing Officer: Okay, and then the other part of the pendency

claim is pursuant to a decision dated April 25th, 2014, which

directed the Department of Education to pay the student’s tuition

that year at Standing Tall, which I think as you saw in the email

chain according to the parent’s and student’s attorney that school

is now run by the same – that school is no longer in existence,

but the new school, which is Pathways, is run by the same people,

and it’s essentially the same program.[1]

DOE: Yes, we have no objection…[2]

This agreement was subsequently memorialized in an order rendered by H.O. Olinger as follows:

In the instant case, there is no dispute as to the “then current educational placement” of Student, as the District concedes and acknowledges Student’s entitlement to funding at Pathways School”

This agreement was then recognized and honored in subsequent orders of pendency, the first rendered by Impartial Hearing Officer Suzanne Carter, dated September 7, 2017, and the second rendered by Impartial Hearing Officer Edgar DeLeon, dated August 9, 2018.

On June 16, 2020, the pursuant to NYCDOE procedures, Parents served the DOE with a “Ten Day Notice” which states, inter alia,

“I am giving you notice that Ms. Redactedt (parent) intends to unilaterally place Rian Redacted (student) at the Pathways School, a private school for the 2020-2021 school year as of July 1, 2020, and will seek tuition payment for such placement from the Department of Education. Please note that Ms. Redactedt will consider any DOE school should the DOE make a belated appropriate placement offer.

 *          *          *          *          *          *          *          *          *          *

Finally, Rian Redacted is entitled to tuition reimbursement for payments made by his parents to Pathways for his education at Pathways School pending the resolution of this matter pursuant to the rule of Pendency. The DOE prescribed Pendency Form is attached hereto, and made a part of same.

On June 20, 2020, the DOE sent the Parent a “Prior Written Notice/Notice of Recommendation” proposing an Extended School Year with Special Education Services consisting of a Special Class with a staffing ratio of 12 students to one teacher assisted by three paraprofessionals.

On November 10, 2020, a pendency hearing was conducted before Impartial hearing officer Diane Cohen. During the hearing the DOE representative insisted that “pendency should be paying for tuition at Standing Tall.”

In her Order, Hearing Officer Cohen made several erroneous rulings:

  1. At page 3, H.O. Cohen ruled that the decision arrived at on July 18, 2016 by the Parents and the DOE, and memorialized by H.O. Olinger, was limited in time to that particular dure process complaint;
  2. At page 4, H.O. Cohen ruled that the last agreed upon program is Standing Tall;
  3. At pages 4-5, H.O. Cohen, overlooking the Parent’s Ten Day Notice, blamed the Parents for the failure of the DOE to provide a pendency placement substantially similar to Standing Tall.

Argument

 

Point One

The DOE Entered into an Agreement with the

Student on July 18, 2016, Memorialized by a

Hearing Officer in a Pendency Order, Which

Altered the Student’s Educational Placement

Without a Limitation in Time

 

A.

The State or Local Educational Agency and Parents

May Agree Upon the Educational Placement of a

Child, Thereby Establishing the Child’s “Then-

Current Educational Placement” Going Forward

 

“The pendency provisions of the IDEA and the NYS Education Law require that a student remain in his or her then current educational placement, unless the student’s parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the student.” Gabel v. BOE of Hyde Park CSD, 386 F. Supp.2d 313, 324 (SDNY 2005), citing 20 USC 1415(j); CFR 300.514; NY Education Law 440(4), (italics added).

“Although not defined by statute, the phrase ‘then current placement’ has been found to mean the last agreed upon placement at the moment when the due process proceeding is commenced.” Gabel, id. page 324, citing Murphy v. Board of Education, 86 F.Supp. 2d 354,359 (SDNY 2000), aff’d 297 F.3d 195 (2d Cir. 2002).

“If there is an agreement between the parties on placement during the proceedings, it need not be reduced to a new IEP, and it can supersede the prior unchallenged IEP as the then current placement.” Gabel, id. page 324, citing Board of Education v. Schutz, 137 F. Supp. 2d 83 (NDNY 2001), aff’d, 290 F.3d 476 (2d Cir. 2002), cert. denied, 123 S. Ct. 1284 (2003).

“Once a pendency placement has been established, it can only be changed by an agreement of the parties, an impartial hearing officer’s decision that is not appealed, or a decision of a state review officer that agrees with the child’s parents, 34 CFR 300.514(c); 8 NYCRR 200.5(1)(2), or determination by a court.” Gabel, id. page 324, citing Board of Education v. Schutz, 137 F. Supp. 2d 83 (NDNY 2001), aff’d, 290 F.3d 476 (2d Cir. 2002), cert. denied, 123 S. Ct. 1284 (2003), and Board of Education v. Engwiller, 170 F. Supp. 2d 410 (SDNY 2001).

“An agreement in which a Board of Education agrees to pay tuition to a private school makes that school the child’s pendency placement unless the stipulation is explicitly limited to a specific school year or definite time period.” Gabel, id. pages 324-325, citing Zvi D. v. Ambach, 694 F.2d 904 (2d Cir. 1982) (italics added).

In the case of DePaulino v. NYCDOE, 959 F.3d 519 (2d Cir. 2020), cited extensively by the DOE during the instant pendency hearing, the Court set forth the following pertaining to the IDEA’s “Stay-Put” provision:

The IDEA’s stay-put provision provides in relevant part that “during the pendency of any (administrative and judicial) proceedings conducted pursuant to this section, unless the (school district)…and the parents otherwise agree, the child shall remain in the then-current educational placement of the child.

We have interpreted this provision to require a school district “to continue funding whatever educational placement was last agreed upon for the child until the relevant administrative and judicial proceedings are complete.”

*          *          *          *          *          *          *          *          *          *

A child’s educational placement (or program) may be changed if, for example, the school district and the parents agree on what the new placement should be… Accordingly, implicit in the concept of “educational placement” in the stay-put provision (ie: a pendency placement) is the idea that the parents and the school must agree either expressly or as impliedly by law to a child’s educational program.

 

Id., at 25-26 (italics in original, bold italics added).

B.

On July 18, 2016, the Parties Entered into an

Agreement, Without a Specific Limitation To

A Specific School Year or Definite Time Period,

That Modified the Student’s Educational Placement

From Standing Tall to Pathways

 

The Findings of Fact and Decision rendered by Hearing Officer Schneider on 4/25/14 (Hearing Exhibit B, hereafter the “Schneider Decision”), concludes as follows:

Order: The DOE shall promptly reimburse the parent…for the 2013-2014 school year at Standing Tall…

The Decision and Order on Pendency rendered by Hearing Officer Olinger on 7/19/16 (Hearing Exhibit C, hereafter the “Olinger Order”), at page 10, contains the first paragraph that is most pertinent to this dispute, which consists of two sentences. The first sentence in the paragraph states the following:

In the instant case, there is no dispute as to the “then current educational placement” of Student, as the District concedes and acknowledges Student’s entitlement to funding at Pathways School… (bold added).

There is no “explicit limitation to a specific school year or definite time period” contained in this sentence.

The second sentence in the paragraph states the following:

In addition (bold italics added), the District has agreed that the provision of such tuition and services is the appropriate “stay put” placement for student pending a final outcome of the Due Process Complaint, and has agreed to fund same, either directly or through Related Service Authorizations, on behalf of Student, effective July 5, 2016, the date of the beginning of the extended 2016/17 school year, and continuing throughout the 2016/17 school year pending a final determination herein.

This second sentence, which designates the Student’s newly agreed upon “then current educational placement” as the “stay put” placement, does have an “explicit limitation to a specific school year or time period.” However, the inclusion of an “explicit limitation” in the second sentence, by contrast, only serves to expose and emphasize the lack of an explicit limitation in the first, to read the two sentences otherwise would be to regard the first sentence in the paragraph as redundant and meaningless. The Olinger Order was not appealed or corrected by the DOE.

The lack of an “explicit limitation to a specific school year or time period” in the first sentence of the pertinent paragraph in page 10 of the Olinger Decision became effectuated the following year. The Decision and Order on Pendency rendered by Hearing Officer Carter on 9/7/17 (Hearing Exhibit D, hereafter the “Carter Order”), at page 4, contains the second paragraph that is most pertinent to this dispute. It reads as follows:

I find that Student’s “pendency” placement the April 25, 2014 findings of fact and decision of case number 138543 (sic, should read 148543, ie: the Schneider Decision) …that was slightly modified by agreement of the parties and memorialized in the July 19, 2016 decision (ie: the Olinger Decision) …It is therefore ordered that 1. Funding of the tuition for Pathways School for the 2017 to 2018… (sic, bold added).

Clearly, Hearing Officer Carter read the first sentence of the pertinent paragraph in page 10 of the Olinger Decision as not being limited to that school year, or any other limited time period, and then based her own Order of Pendency upon it. The Carter Order was not appealed or corrected by the DOE.

The lack of an “explicit limitation to a specific school year or time period” in the first sentence of the pertinent paragraph in page 10 of the Olinger Decision was again effectuated the year after that, in 2018. In the Decision and Order on Pendency rendered by Hearing Officer DeLeon on 8/9/18 (Hearing Exhibit E, hereafter the “DeLeon Order”), at page 5, is states: “Ordered on Consent and pursuant to the pendency provisions under the IDE, the student shall immediately continue to receive the “operative placement.” As conceded by the DOE attorney at the Pendency Hearing on 11/10/20 (see Transcript, dated 11/10/20, at page 18), “If you read IHO DeLeon’s pendency decision, he speaks about operative placement once again and basically is making the Parent’s argument that Pathways is the operative placement.”

Hearing Officer Cohen, in her Order on Pendency dated 11/16/20, misapplied the ruling in Gabel v. BOE of Hyde Park, 386 F. Supp. 2d 313,325 (SDNY 2005), to the facts of the instant case. As properly cited and quoted by Hearing Officer Cohen, Gabel establishes the rule that “an agreement which explicitly limits a placement to a specific school year or a definite time period does not constitute a pendency program beyond that period.” Id. Hearing Officer Cohen then overextends this rule by stating, “Thus, an interim order on pendency does not change a student’s placement after the end of the proceedings in the case, and does not serve as the basis for pendency in a future hearing. The pendency order is only temporarily in effect. After the end of the case it is extinguished and no longer constitutes the Student’s placement, or the basis for establishing a last agreed-upon placement.”

The correct ruling, based upon an accurate reading of Gabel, is that a pendency order that is explicitly limited to a specific school year or a definite time period does not change a student’s placement after the end of the proceedings in the case, and does not serve as the basis for pendency in a future hearing, however, a pendency order that is not explicitly limited to a specific school year or a definite time period does! The facts of this particular case, and this particular agreement, and this particular pendency order, are that they are not explicitly limited to a specific school year or a definite time period.

C.

The DOE Cannot Utilize a Court’s Decision

Rendered in 2020 to Vitiate an Agreement it

Made in 2016

 

In its opposition to the Student’s application for pendency, as noted by Hearing Officer Cohen in her decision dated 11/16/20 (hereafter “Cohen Order”), at page 3, the DOE argued “that the pendency decisions in which the DOE may have agreed to Pathways were based upon a misunderstanding of the law – a ‘misapplication of the law’ (Tr.19) – which was clarified in Ventura de Paulino v. NYCDOE, 959 F.3d 519 (2d Cir. 2020).” This constitutes an admission by the DOE that it entered into an agreement in 2016 that it now regards as a mistake. However, the DOE cannot lawfully utilize a decision rendered in 2020 to reach back and vitiate agreements it made in 2016, and arguably again in 2017, that it now regrets as errors of judgment on its own part.

D.

A Pendency Order May be the Medium

For the Memorialization of an Agreement

 

In his oral argument on 11/10/20, at page 6 of the transcript, the attorney for the DOE first stated that Pendency Decisions have no precedential value, and then went on to claim that Pendency Decisions cannot be Agreements. We take no issue with the former, but most certainly take issue with the latter. Neither the statutes, nor the case law interpreting them, contain any prescription or proscription specifying how such agreements between the educational agency and parents must be made or memorialized. An agreement can be memorialized in any way. That the agreement at issue was memorialized by a hearing officer in a Pendency Decision is of no moment.

The holding in Gabel v. BOE of Hyde Park, 386 F. Supp. 2d 313,324 (SDNY 2005) clearly sets forth the rule that “An agreement in which a Board of Education agrees to pay tuition to a private school makes that school the child’s pendency placement unless the stipulation is explicitly limited to a specific school year or definite time period.” There is nothing in Gabel to suggest that such an agreement cannot be memorialized in a Pendency Order. A Pendency Decision is a perfectly appropriate media for the memorialization of an agreement.

E.

There Has Been No Intervening Agreement

Or Decision That Alters the Educational

Placement Agreed Upon on July 19, 2016

 

In the pendency hearing transcript, dated 11/10/20, at page 26, it was noted and undisputed that there are no intervening agreements or decisions from July 19, 2016, to the present, that alter the agreement made on July 19, 2016, establishing Pathways School as the Student’s educational placement going forward.

Conclusion Point One

            On July 19, 2016, the DOE entered into an agreement with the Student that modified the educational placement established by Hearing Officer Judith Schneider on 4/25/2014, in her Findings of Fact and Decision of that date. In the new agreement, which was memorialized by Hearing Officer Olinger in his Order of Pendency dated 7/19/16, the Student’s educational placement was changed from Standing Tall to Pathways. Hearing Officer Olinger’s Order of Pendency memorializing said agreement does not include an explicit limitation to a specific school year or time period for the newly agreed upon educational placement. Accordingly, per said agreement, Pathways is the current educational placement for the Student, and the Student is entitled to the payment of his tuition at Pathways pursuant to the law of pendency during the current dispute.

Point Two

The Last Agreed Upon Placement

Is Pathways, Not Standing Tall

During the November 10, 2020 pendency hearing the DOE attorney asserted the position that the DOE is obligated to fund services at Standing Tall:

Hearing Officer: And are you saying that the DOE should be funding services at the school Standing Tall?[3]

DOE: Correct.[4]

DOE: Once again, the Department repeats that the pendency should be for tuition at Standing Tall…once again, we believe that the pendency should be paying for tuition at Standing Tall.[5]

This position asserted by the DOE is disingenuous as revealed by the transcript of the hearing dated July 18, 2016[6] wherein the following exchange occurred between H.O. Olinger and the representative of the DOE who was in attendance:

Hearing Officer: Okay, and then the other part of the pendency claim is pursuant to a decision dated April 25th, 2014, which directed the Department of Education to pay the student’s tuition that year at Standing Tall, which I think as you saw in the email chain according to the parent’s and student’s attorney that school is now run by the same – that school is no longer in existence, but the new school, which is Pathways, is run by the same people, and it’s essentially the same program.[7]

DOE: Yes, we have no objection…[8]

See Transcript of Pendency Hearing, dated July 18, 2016, (italics added), attached as Exhibit F.,

The DOE representative, an officer of the Court, is insisting to an Impartial Hearing Officer that “pendency should be for tuition at Standing Tall,” knowing full well that Standing Tall no longer exists.

The Hearing Officer in her Order dated 11/16/20, at pages 4-5 (italics in original). compounds this error:

I therefore find that the last agreed upon program is Standing Tall. If that program was not available, the DOE would have had the prerogative of choosing a substantially similar program. When the Parents filed the hearing request in the instant case, however, they asserted in that hearing request that they were unilaterally placing the Student at Pathways for the 2020-2021 school year. Thus, the Student was not available for Standing Tall or any pendency placement chosen by the DOE. The Student was only available for Pathways.

            *          *          *          *          *          *          *          *          *          *

I note as well that this is not a case in which the Parents have placed the Student in a pendency program of their own choosing because the DOE did not offer pendency. This, in contrast, is a situation in which the Parents informed the DOE that they had unilaterally placed the Student prior to the filing of the hearing request, and before the obligation to provide pendency arose.

The Hearing Officer has misapplied the facts of this case. On 6/16/20, pursuant to procedures promulgated by the NYCDOE, the parents served the DOE with a “Ten Day Notice,” which states:

I am giving you notice that (parent) intends to unilaterally place (student) at the Pathways School…Please note that (parent) will consider any DOE school should the DOE make a belated appropriate placement offer.

See Parent’s Ten Day Notice attached as Review Exhibit G (italics added) [9]. The DOE then served a Prior Written Notice to the Parent, dated 6/20/20, recommending a special class with a staffing ratio of 12:1 + (3:1). See Prior Written Notice dated 6/20/20, attached as Review Exhibit H.[10]

At Standing Tall, however, as noted by Hearing Officer Schneider at page 7 of her Findings of Fact and Decision, dated 4/25/14 (Hearing Exhibit B), “there are currently 6 children in the student’s class who are functioning at a similar level.”

Thus, while the Parents in fact provided the DOE with the opportunity, in compliance with the procedures promulgated by the DOE, to provide both a FAPE and a program for pendency substantially similar to Standing Tall, with a student-teacher ratio of 6:1, prior to the start of the 2020-2021 school year, the DOE provided neither. Hearing Officer Cohen has wrongfully blamed the Student’s parents for the failure of the DOE to abide by its own procedures and meet its own obligations, while rewarding the DOE for its insincerity and cynicism.

Furthermore, if Pathways is not the Student’s pendency placement, he has no pendency placement, an “impossible result” (see Gabel v. BOE of Hyde Park CSD, 386 F. Supp 2d 313, 325 [SDNY 2005]). This is because of the DOE’s insistence, that Standing Tall is the Student’s current placement, with its student-teacher ratio of 6:1, while the only placement currently proffered by the DOE is a student-teacher ratio of 12:1, added to the fact that Standing Tall no longer exists, as known and acknowledged by the DOE back in 2016.

Conclusion Point Two

Assuming arguendo that the DOE had the prerogative to provide a placement that is “substantially similar” to Standing Tall for the 2020-2021 School Year, the DOE failed to do so, and cannot shift the burden of this obligation to the Student or his parents given the facts of this case.

Point Three

The Facts in the Case of Depaulino v. NYCDOE,

Relied Upon by the DOE at the Current

Pendency Hearing,

Are Substantially Different from the Facts of the Case

At Bar, Accordingly, the Decision that was

Reached in DePaulino is Not Relevant to this Case

 

The facts of DePaulino v. NYCDOE, 959 F3d 519 (2d Cir. 2020) are substantially different from the facts of the case at bar, and therefore the conclusion in DePaulino is inapposite to the conclusion that is required in the case at bar.

In DePaulino, the last agreed upon educational placement for the 2017-2018 school year was a private school. The parents became dissatisfied with the last agreed upon private school placement, unilaterally moved their child to a second private school for the 2018-2019 school year, and claimed that the second private school was the last agreed upon educational placement because it was “substantially similar” to the first private school. The DOE responded to this attempt to switch private schools in a timely fashion, asserting clearly that it was not in agreement with what the parents were attempting to do, and the Court agreed with the DOE, clarifying what had apparently been regarded by the DOE as a murky area of law up to that point.

In the case at bar, as can be gleaned from the July 18, 2016 transcript (Review Exhibit F), and the Olinger Decision (Hearing Exhibit C), and the Carter Decision (Hearing Exhibit D), and even the DeLeon Decision (Hearing Exhibit E)[11] the DOE agreed in 2016 that Pathways would be the “then current educational placement” going forward because they knew Standing Tall no longer existed, they agreed that “the new school, which is Pathways, is run by the same people, and it’s essentially the same program” (See Review Exhibit F, page 6), the DOE attorney who was present at the 2016 hearing agreed that Pathways was substantially similar to Standing Tall, and back in 2016, apparently (see hearing transcript, dated 11/10/20, pages 19-20) the DOE believed that if one private school was substantially similar to another private school a parent could move from one to the other and the “then current educational placement” status would carry over from one to the other. And maybe the DOE was wrong when they thought that back in 2016, but that’s not relevant. What is relevant is that an agreement was made and recorded in a document, without a limitation of time, and then carried over into subsequent years, without opposition or clarification by the DOE, despite the “red flag” of a subsequent hearing officer’s identification of the agreement as an “agreement” (the Carter Decision), and another subsequent hearing officer treating the 2016 agreed upon operative placement as the “operative placement” (the DeLeon Decision).

Conclusion Point Three

Hearing Officer Cohen, in her decision dated 11/16/20, misapplied the holding in Depaulino to the facts of this case.

 

Point Four

The Parents Are Not to Blame

For the Failure of the DOE to

Offer an Appropriate

Pendency Placement

 

In her Order on Pendency, dated November 16, 2020, pages 4-5, after finding “that the last agreed upon program is Standing Tall”, Hearing Officer Cohen blamed the parents for the failure of the DOE to offer a pendency program substantially similar to the program at Standing Tall, pursuant to its prerogative as clarified in the case of DePaulino v. NYCDOE, 959 F.3d 519 (2d Cir. 2020).

However, on June 16, 2020, the pursuant to NYCDOE procedures, Parents served the DOE with a “Ten Day Notice” which states, inter alia,

“I am giving you notice that Ms. Redactedt (parent) intends to unilaterally place Rian Redacted (student) at the Pathways School, a private school for the 2020-2021 school year as of July 1, 2020, and will seek tuition payment for such placement from the Department of Education. Please note that Ms. Redactedt will consider any DOE school should the DOE make a belated appropriate placement offer.

            *          *          *          *          *          *          *          *          *          *

Finally, Rian Redacted is entitled to tuition reimbursement for payments made by his parents to Pathways for his education at Pathways School pending the resolution of this matter pursuant to the rule of Pendency. The DOE prescribed Pendency Form is attached hereto, and made a part of same.

See Exhibit G.

Further, on June 20, 2020, the DOE sent the Parent a “Prior Written Notice/Notice of Recommendation” proposing an Extended School Year with Special Education Services consisting of a Special Class with a staffing ratio of 12 students to one teacher assisted by three paraprofessionals. See Exhibit H.

Conclusion Point Four

The whole purpose of the Ten Day Notice is to give the DOE an opportunity to rectify a parent’s complaint prior to the filing of a formal Due Process Complaint. If, upon receipt of the notice, it was the position of the DOE that a 12:1 ratio was appropriate, the DOE nonetheless had the opportunity as well as the prerogative to offer a 6:1 pendency program pending resolution of the Due Process Complaint that they certainly knew was coming. The DOE failed to exercise its prerogative, despite adequate notice from the Parents. Thus, the fault for the lack of an appropriate pendency placement offer from the DOE lies with the DOE, and not with the Parents.

Final Conclusion

The agreement entered into between the DOE and this student’s parents on July 18, 2016, was not specifically limited in time, was recorded by H.O. Olinger in his order dated 7/19/16, was honored by subsequent hearing officers and not subsequently challenged or corrected by the DOE, has not been vitiated by subsequent agreement or impartial hearing decision, and therefore is binding and enforceable. Accordingly, the DOE should be ordered to fund the Student’s tuition at Pathways until the current Due Process Complaint is resolved.

Date:   December 20, 2020

Bronx, New York

                                                                                    Respectfully submitted,

                                                                                    _________________________

                                                                                    Michael F. Dailey, Esq.

                                                                                    One Riverdale Avenue,

                                                                                    Mailbox Eleven

                                                                                    Bronx, NY 10463

                                                                                    (718)543-0100

                                                                                    mikedaileylaw@gmail.com

[1] Hearing Transcript, dated 7/16/16, page 6;

[2] Hearing Transcript, dated 7/16/16, page 6.

[3] Hearing Transcript, dated 11/10/2020, page 5;

[4] Hearing Transcript, dated 11/10/2020, page 6;

[5] Hearing Transcript, dated 11/10/2020, page 20.

[6] It is respectfully requested that consideration be given to the 7/16/16 Transcript. It is important and necessary for the reviewing officer to understand what the DOE representative knew when he made the assertion that Standing Tall should be the pendency placement.

[7] Hearing Transcript, dated 7/16/16, page 6;

[8] Hearing Transcript, dated 7/16/16, page 6.

[9] It is respectfully requested that consideration be given to the Ten Day Notice dated 6/16/20. It is important and necessary for the reviewing officer to understand what the parents did in terms of meeting their obligation to give the DOE notice of their intention to unilaterally place their child.

[10] It is respectfully requested that consideration be given Prior Written Notice dated 6/20/20. It is important and necessary for the reviewing officer to understand what the DOE was provided by parents with an opportunity to offer a pendency placement that was substantially similar to the program provided by Standing Tall, and waived their opportunity to do so.

[11] In the Pendency Hearing Transcript, dated 11/10/20, at page 18, the DOE attorney conceded, “If you read IHO DeLeon’s pendency decision, he speaks about operative placement once again and basically is making the Parent’s argument that Pathways is the operative placement.”

Michael F. Dailey, Esq.

Call Now To See How I Can Help!
(718) 618-5995

Translate »