New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: December 20, 2011

March 6, 2011

Actual Record Closed Date: April 25, 12

Hearing Officer: Leah Botwinik Almeleh, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 20, 2011

Esq. — Parents

Ph.D. Department of Education Chairperson’s designee (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 6, 2012

Esq. — Parents

Parents

Ph.D. Department of Education Chairperson’s designee (via telephone) — DOE

JURISDICTIONAL STATEMENT

By letter dated September 2, 2011 I was appointed to hear the Matter of pursuant to the Individuals with Disabilities Education Improvement Act (IDEIA), 20 US Code Section 1415 (f)(l). On December 20, 2011 a hearing was held at which time the Department of Education moved to dismiss the Parents’ action. As there appeared to be some confusion as to which year was being litigated, the Parents were unprepared to answer the Department of Education’s motion and an opportunity to respond by written submission was offered. Alternatively, the Parents were permitted to schedule a second hearing date in order to develop a factual basis supporting their opposition to the Department’s Motion. On March 6, 2012, the parties reconvened. At this time, evidence was admitted into the record and a closing date established for submission of Memoranda of Law. It is noted that this is a Parental request for tuition reimbursement for the 20102011 school year memorialized by Due Process Request dated August 31, 2011 seeking reimbursement of tuition expenses for the pursuant to a unilateral transfer. The Parents assert that the Department of Education is in violation of its child find mandate and as a consequence thereof, has failed to provide a suitable and appropriate education for their child. As a result thereof, the decision date for this matter was extended to April 25, 2012. A list of evidence and of witnesses is appended hereto.

SUMMARY OF THE FACTS

By letter dated June 21, 2006, the Parent in this matter advised the Department of Education that she was declining an evaluation for special education services. Exh. 1. The form letter submitted by the Parents but prepared by the Department of Education underscores the Parents’ right to reactivate her request for evaluation at any time. The record suggests, however, that the child continued to participate fully in a general education curriculum. Thereafter .’s Parents unilaterally enrolled their son at ,a non-public school placement.

On March 17, 2011, the Parents again requested an evaluation for special education eligibility. Notwithstanding this, they did not execute a formal Authorization for Initial Evaluation until May 12, 2011. Exhs. 2, 4. The record does not address the nearly two month delay in obtaining the Parents’ consent and, consistent with 8 NYCRR 200.4(a)(8) it is unclear what, if anything, transpired between the Department of Education and the Parents during this time. 1 Having obtained the Parents’ consent to evaluate on May 12, 2012, however, the Department was not obligated to conclude its evaluation for another 60 days. See 8 NYCRR 200.4(b)(7)(i).2 As the child participates in a 10 month program, the Department of Education was not obligated to conclude its assessments until well after the 2010-2011 school year. On August 31, 2011, the Parents submitted their Due Process Request for the 2010-2011 school year. Exh. i. As such, it simply alleges that the Department of Education failed to provide I.M. with a free and appropriate public education but is silent on the issue of the Department’s child find obligations.

DISCUSSION

The School District maintains that any issue not raised in the Parents’ Due Process Complaint must be precluded from admission into evidence for IHO consideration. As a consequence and based upon their claim, the Department of Education now moves to dismiss the within complaint. Although not specifically cited, the Department of Education representative, a non-attorney, relies upon a plain reading of the IDEIA which, in relevant part, provides that, “The party requesting the due process hearing may not raise issues at the hearing that were not raised in the party’s due process complaint notice unless such original complaint notice is duly amended prior to the hearing. 20 USC § 1415 [f][3]B]; see also 8 NYCRR §200.5 [j][1][ii].3

1 The regulations specifically note that, “Except as otherwise provided in section 200.5(b)(6) of this Part, in the absence of a written agreement to withdraw a referral, as described in paragraph (7) of this subdivision, and in the event that parental consent to an initial evaluation is not obtained within 30 days of the date of receipt of referral, the chairperson shall document attempts, including, but not limited to, telephone calls made or attempted and the results of those calls and correspondence sent to the parents and any responses received, made by the chairperson or other representatives of the committee to obtain parental consent . . .” 2 Individual evaluation and reevaluation. (1) Unless a referral for an evaluation submitted by a parent or a school district is withdrawn pursuant to paragraph (a)(7) or (9) of this section after parental consent has been obtained or a parental refusal to consent is overridden, an individual evaluation of the referred student shall be initiated by a committee on special education. The individual evaluation shall be completed within 60 days of receipt of consent unless extended by mutual agreement of the student’s parents and the CSE pursuant to sections and 200.4(j)(1) of this Part. 3 The Senate Report pertaining to the 2004 amendments to the IDEA noted that "the purpose of the sufficiency requirement is to ensure that the other party, which is generally the school district, will have an

In contrast, counsel for the Parents argues that they have met all pleading requirements of 20 USC §1415(B)(7)(A)(ii)(III)-(IV) and 34 CFR 300.508(d)[1]. They further assert that the Department’s failure to interpose a sufficiency motion now precludes it from asserting any defenses which might emanate from 20 USC § 1415 [f][3]B]. In furtherance thereof, the Parents allege that by virtue of their exchange of private evaluations with the Department of Education in September 2009 and October 2010, as well as the child’s previous certification into special education, the Department of Education knew or should have known of the Parents’ interest in pursuing a special education assessment of their son. Exhs. D, E. While this may or may not be substantively true, it skirts the primary procedural issues in this matter.

At the outset, Application of a Child with a Disability, App. No. 04-061, sets forth an excellent analysis of the sufficiency requirements, legislation predicated upon fundamental principles of due process and fairness. The new regulations ensure that both parties have an understanding of the disputed issues, facilitating a more meaningful due process hearing while preventing unnecessary loss of time, money and other resources spent defending uncontested issues. In this manner, both parties have a clear understanding of the subject matter of the complaint. The issues at hearing are appropriately and clearly identified and, as a collateral benefit, compliance with the five day disclosure rule is facilitated (34 C.F.R. § 300.509[a][3]; 8 NYCRR 200.5[i][3][xii][a]; see Application of a Child with a Disability, App. No. 04-061, supra. Application of a Student with a Disability, App. No. 08-098; Application of a Student awareness and understanding of the issues forming the basis of the complaint" (S. Rep. 108-185 at p. 35, Individuals with Disabilities Education Act Senate Report No. 108-185, "Notice of Complaint," [November 3, 2003]). The Senate Committee reiterated that they assumed with the earlier 1997 amendments' notice requirement that it "would give school districts adequate notice to be able to defend their actions at due process hearings, or even to resolve the dispute without having to go to due process," adding that "[t]he committee does not intend for a notice of a due process complaint to reach the level of specificity and detail of a pleading or complaint filed in a court of law" (id.; see Knight v. Washington Sch. Dist., 2010 WL 1909581, at *4 n.4 [E.D.Mo. May 10, 2010]). However, it is important for an impartial hearing officer to assist the parties in resolving which issues will be decided at an impartial hearing, especially in cases where the responding party rather than the complaining party has the burden of proof. Discussing this issue prior to the Supreme Court's decision in Schaffer v. Weast (546 US 49 [2005]) at a time the burden of proof under the IDEA was typically placed on school districts, the Senate Committee nevertheless indicated that Congress did not intend to "forc[e] the school to prepare for any and every issue that could be possibly raised against it" by merely alleging that a student was denied a FAPE (S. Rep. 108-185 at p. 35). with a Disability, App. No. 09-025. Failure to conform to the minimal pleading requirements of the statute may render a due process complaint notice legally insufficient (see M.S.-G v. Lenape Regional High Sch. Dist. Bd. of Educ., 2009 WL 74396, at *2-*3 [3d Cir. 2009] [affirming the district court's finding that dismissal of a due process complaint notice under the IDEA for failure to allege facts related to the problem was proper]).

Even where denial of free appropriate public education (FAPE) is specifically pleaded, a failure to reference the specific allegations upon which the claim is predicated will bar the Parents’ from raising these issues at trial. Application of the Board of Education, App. No. 08-070, Application of a Child with a Disability, Appeal No. 07051; Application of a Child with a Disability, Appeal No. 07-047; Application of a Child with a Disability, Appeal No. 06-139; Application of a Child with a Disability, Appeal No. 06-065; Application of a Child with a Disability, Appeal No. 04-019; Application of a Child with a Disability, Appeal No. 03-095; Application of a Child with a Disability, Appeal No. 02-024; Application of a Child with a Disability, Appeal No. 01-024; Application of a Child with a Disability, Appeal No. 99-060).

This opinion is, moreover, consistent with Alexandria R. et al v. Brookline Sch. Dist., 06-cv-0215-JR, Sept. 10, 2009, 53 IDELR 93, 109 LRP 57939, adopting language from Escambia Cty. Bd. of Ed. v. Benton, 406 F. Supp. 2nd 1248, 1259-60 (S.D. Ala. 2005). Reiterating Schaffer, supra, the Escambia Court declared, “The statute does not specify that all facts relating to the Parent’s dissatisfaction must be spelled out in the notice, much less that every legal theory must be set forth in painstaking detail at that time to avoid waiver. Such a burdensome, unwieldy standard would far exceed that to which federal court plaintiffs are held, and seems antithetical to the more nimble less rule-intensive character of administrative proceedings.” Nevertheless, the parties must be on notice as to the fundamental nature of their respective claims so that proceedings may advance in an orderly and efficient manner.

Clearly, a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process complaint notice unless the other party agrees (20 U.S.C. § 1415[f][3][B]; 34 C.F.R. §§ 300.508[d][3][i], 300.511[d]; 8 NYCRR 200.5[j][1][ii]) or the original due process complaint is amended prior to the impartial hearing per permission given by the impartial hearing officer at least five days prior to the impartial hearing (20 U.S.C. § 1415[c][2][E][i][II]; 34 C.F.R. § 300.508[d][3][ii]; 8 NYCRR 200.5[i][7][b]; see M.R. v. South Orangetown Cent. Sch. Dist., 2011 WL 6307563, at *12-*13 [S.D.N.Y. Dec. 16, 2011]; C.D. v. Bedford Cent. Sch. Dist., 2011 WL 4914722, at *13 [S.D.N.Y. Sept. 22, 2011]; R.B. v. Dep't of Educ., 2011 WL 4375694, at *6 [S.D.N.Y. Sept. 16, 2011]; W.M. v. Lakeland Cent. Sch. Dist., 2011 WL 1044269, at *8 [S.D.N.Y. Mar. 10, 2011]; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *8 [S.D.N.Y. Aug. 27, 2010]; Application of the Bd. of Educ., Appeal No. 11-111; Application of a Student with a Disability, Appeal No. 11100; Application of a Student with a Disability, Appeal No. 11-042; Application of the Bd. of Educ., Appeal No. 11-038; Application of a Student with a Disability, Appeal No. 11-008).

In view of the above, I find that the Parents’ pleadings fail to place the Department of Education on notice as to its Child Find claim. This is a procedural barrier to litigation, one that does not address the substantive merits of the Parents’ claim. The Parents’ Due Process request does not reference anything about the Department of Education’s abrogation of its Child Find responsibilities and it would be patently unfair to permit such a claim at this time. However, even if the Parents had amended their Request, absent parental authorization until May 12,2011, their claim would have been moot for the 2010-2011 school year.

CONCLUSION

In view of the above, I am constrained to dismiss the Parents’ Request for Due Process.

Wherefore, it is hereby ordered that:

The Parents’ request for the 2010-2011 school year is dismissed. Dated: April 26, 2012

LEAH BOTWINIK ALMELEH, ESQ.

Impartial Hearing Officer

LBA:gc

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”

(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A New IH Request Rec’d 136422, 12/14/11, 2 pages

B I. M. Reply to DPR, 12/14/11, 1 page

C Due Response, 12/14/11, 2 pages

D , 9/4/09, 2 pages

E S/L Report, 10/1/10, 4 pages

DEPARTMENT OF EDUCATION

1 Parent Letter, 6/21/061 page

2 Parent Letter, 3/17/11, 1 page

4 Consent for Evaluation, 5/12/11, 1 page

IMPARTIAL HEARING OFFICER

i Parents’ Due Process Request , 8/31/11, 1 page

ii DOE Motion to Dismiss, undated, 1 page

iii Parents’ Response to NYC DOE Motion to Dismiss , 4/5/12, 7 pages