Impartial Hearing Decision

UNIVERSITY OF THE STATE OF NEW YORK

STATE EDUCATION DEPARTMENT

_______________________________________________

IN THE MATTER OF THE IMPARTIAL

HEARING BROUGHT UPON THE REQUEST

OF A CENTRAL SCHOOL DISTRICT

AGAINST Decision and Order Case #:

PARENTS CONCERNING THEIR CHILD

______________________________________________

Introduction This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as District, the parents as Parents and the student will be referred to as Student.

The Parent’s Position

The Parents claim they are entitled to reimbursement for the cost of an IEE and in order to defend their position, they are entitled to copies of testing protocols.

The District’s Position The District brought this proceeding as they are required to do when Parents seek funding for an IEE and the District will not pay. The District believes the Parents’ demand for the IEE is moot and they have consistently denied the provision of copies of the testing protocols to the Parents. Facts

^[1]. The Student is thirteen years old.

2. The Student attended the District elementary school during the 2012-2013 school year.

3. The Student is no longer attending school in the District and is currently enrolled in a private school of the Parents’ choice.

4. The Parent sent a letter to the CSE (Committee on Special Education) Chair, dated July 8, 2013 stating she disagreed with the District’s Multi-Disciplinary Psycho-educational Re-evaluation (from May 2013) and requesting funding for an Independent Educational Evaluation.

5. The District sent a due process request for a hearing on July 26, 2013.

Procedural background

On or about August 1, 2013 I agreed to preside over the instant claim brought by the District to obtain a ruling that the District is not obligated to fund an Independent Educational Evaluation (IEE) of the Student. (IHO 4) On August 13, 2013 I mailed the parties a scheduling letter and proposed a telephone conference for August 20, 2013. (IHO 1) The telephone conference did take place on August 20, 2013 and the parties agreed to a hearing date on September 25, 2013. There was also an agreement that “5 day materials” would be exchanged on or before the close of business on September 17, 2013. In my correspondence to the Parties (IHO 2) I offered to prepare and sign subpoenas for the Parents if they would like, provided they supplied the necessary information. A follow-up telephone conference was set for September 20, 2013 @ 4:30 p.m.

Later that day (August 20, 2013) the Parents made an application for disclosure of testing protocols. (IHO 3) On September 17, 2013 I mailed a belated order extending the VESID timeline and I reminded the parties of the scheduled telephone conference on September 20, 2013 @ 4:30 p.m. On September 18, 2013 I received the response to the Parents’ request for disclosure of testing protocols from District counsel. (IHO 6) On September 20, 2013 I received motion papers from the District arguing that the issue is moot and should therefore be dismissed. (IHO 8) Later that day, on September 20, 2013, I attempted to initiate a telephone conference with the parties but the Parents were not available, without explanation. I inquired of counsel for the District if he had received the “5 day materials” and he indicated he had not. I did not receive any request to issue subpoenas from the Parents. Because the Parents were not available for the telephone conference; they did not forward “5 day materials”; and, they did not forward requests for subpoenas, all activities that they had previously anticipated, I was concerned that the Parents had a change of opinion about the defense of their position. I adjourned the hearing which was then scheduled only three business days hence and re-set another telephone conference for the following Monday, September 23, 2013. ((IHO 7) I sent a copy of the letter via e-mail and via U.S. Postal Service. Again, on September 23, 2013, the Parents were not available for the telephone conference. I left a message at their number indicating the attempt to reach them. A letter followed (IHO 9) which was also sent via e-mail. That letter advised of the risk the Parents faced if they chose not to be heard, and I specifically invited arguments to the District motion to dismiss, directing submission of the papers by September 27, 2013. That day has come and passed and the only document I have received from the Parents is a non-responsive e-mail (IHO10) which seeks to delay the proceeding while they “get further guidance from FERPA and from [the Student’s] current teachers.” This is the backdrop for the instant decision.

Legal Background The purpose of IDEA is to provide students with a “basic floor of opportunity” of access to specialized instruction and related services that are individually designed to provide educational benefits. Board of Education, Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 189-190, 102 S. Ct. 3034 (1982); Walczak v. Florida UFSD, 142 F.3d 119 (2nd Cir. 1998). Neither the IDEA, nor Article 89 of the New York State Education Law, requires a school district to provide special education and related services designed to maximize the potential of a disabled student. Nor do federal and state education laws require a school district to provide the best possible educational program and related services, or match those services requested by a parent. Application of a Child With a Disability (City School District of Buffalo), S.R.O. Decision 04-20 (2004). Rather, the goals and mandates of the IDEA and N.Y. Education Law are relatively modest: namely, to provide appropriate specialized education and related services sufficient for the disabled student to benefit from his/her education. Straube v. Florida UFSD, 801 F. Supp. 1164, 1175-1176 (S.D.N.Y. 1992); Moubry v. Independent School District, 9 F. Supp.2d 1086, 1104 (D. Minn. 1998) (citing Rowley)

The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (FAPE). 20 U.S.C. § 612(a)(I). "A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21." 20 U.S.C. § 612(a) (1) (A). The IDEA defines a FAPE as special education and related services that:

- (A) have been provided at public expense, under public supervision and direction, and without charge,

- (B) meet the standards of the state educational agency,

- (C) include an appropriate preschool, elementary, or secondary school education in the state involved, and

- (D) are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9).1

The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. (See generally 20 U.S.C. § 615) Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002)

In New York State, “The board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing . . . ” NY Educ. Law § 4404 (1)(c) modifying the rule enunciated in Schaffer where “The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer, 546 U.S. at 537 Federal and State regulations provide that, subject to certain limitations, a parent has the right to an IEE at public expense if the parent disagrees with an evaluation obtained by the school district (34 C.F.R. § 300.502[a], [b]; 8 NYCRR 200.5[g][1]; see R.L. v. Plainville Bd. Of Educ., 363 F. Supp. 2d. 222, 234-35 [D. Conn. 2005] [finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent's claim for an IEE at public expense]). A parent, however, is only entitled to one IEE at public expense "each time the public agency conducts an evaluation with which the parent disagrees" (34 C.F.R. § 300.502[b][5]; 8 NYCRR 200.5[g][1]; see R.L., 363 F. Supp. 2d at 234-35). If a parent requests an IEE at public expense, the school district must, without unnecessary delay, ensure that either an IEE is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria (34 C.F.R. § 300.502[b][2][i]-[ii]; 8 NYCRR 200.5[g][1][iv] SRO 11-01

However, a dispute between the parties must at all stages be "real and live," and not "academic,"or it risks becoming moot (see Lillbask v. State of Conn. Dep't of Educ., 397 F.3d 77, 84 [2d Cir. 2005]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]; Application of the Dep't of Educ., Appeal No. 10-066; Application of a Student with a Disability, Appeal No. 10-064; Application of a Student with a Disability, Appeal No. 09-077; Application of a Student with a Disability, Appeal No. 09-065; Application of a Student with a Disability, Appeal No. 08-104; Application of the Dep't of Educ., Appeal No. 08-044; Application of a Child with a Disability, Appeal No. 07-139; Application of a Child with a Disability, Appeal No. 07-085; Application of a Child with a Disability, Appeal No. 07-077).

In general, cases dealing with issues such as desired changes in IEPs, specific placements, and implementation disputes may become moot at the end of the school year because no meaningful relief can be granted (see, e.g., Application of the Bd. of Educ., Appeal No. 06-044; Application of the Bd. of Educ., Appeal No. 05-058; Application of a Child with a Disability, Appeal No. 04- 027; Application of a Child with a Disability, Appeal No. 00-037; Application of the Bd. of Educ., Appeal No. 00- 016; Application of a Child with a Disability, Appeal No. 96-37). Administrative decisions rendered in cases concerning such issues arising out of school years that have since expired may no longer appropriately address the current needs of the student (see Daniel R.R. v. El Paso Indep. Sch. Dist., 874 F.2d 1036, 1040 [5th Cir. 1989]; Application of a Child with a Disability, Appeal No. 07-139; Application of the Bd. of Educ., Appeal No. 07-028; Application of a Child with a Disability, Appeal No. 06-070; Application of a Child with a Disability, Appeal No. 04- 007).

However, an exception provides that a claim may not be moot, despite the end of a school year for which the student's IEP was written, if the conduct complained of is "capable of repetition, yet evading review" (see Honig v. Doe, 484 U.S. 305, 318-23 [1988]; Lillbask, 397 F.3d at 84- 85; Daniel R.R., 874 F.2d at 1040; Application of a Child with a Disability, Appeal No. 04-038). The exception applies only in limited situations (City of Los Angeles v. Lyons, 461 U.S. 95, 109 [1983]), and is severely circumscribed (Knaust v. City of Kingston, 157 F.3d 86, 88 [2d Cir. 1998]). First, it must be apparent that "the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration" (Murphy v. Hunt, 455 U.S. 478, 482 [1982]; see Knaust, 157 F.3d at 88; Application of a Child with a Disability, Appeal No. 07-139).

Second, controversies are "capable of repetition" when there is a reasonable expectation that the same complaining party would be subjected to the same action again (Weinstein v. Bradford, 423 U.S. 147, 149 [1975]; see Hearst Corp., 50 N.Y.2d at 714-15; Application of a Child with a Disability, Appeal No. 07-139). To create a reasonable expectation of recurrence, repetition must be more than theoretically possible (Murphy, 455 U.S. at 482; Russman v. Bd. of Educ., 260 F.3d 114, 120 [2d Cir. 2001]; Application of a Child with a Disability, Appeal No. 07-139). Mere speculation that the parties will be involved in a dispute over the same issue does not rise to the level of a reasonable expectation or demonstrated probability of recurrence (Russman, 260 F.3d at 120; Application of a Child with a Disability, Appeal No. 07-139). Mootness may be raised at any stage of litigation (In re Kurtzman, 194 F.3d 54, 58 [2d Cir. 1999]; Application of a Child with a Disability, Appeal No. 07-139).

In this case there has been no response by the Parents to the allegations that the Student has been removed from the District. (IHO Ex..s 8 & 11). Accordingly, I base my decision on the record before me. A hearing officer is not required to make a determination that is academic or will have no actual impact upon the parties (Application of a Student with a Disability, Appeal No. 09-077; Application of a Student with a Disability, Appeal No. 09-065; Application of a Student with a Disability, Appeal No. 08-104; Application of the Dep't of Educ., Appeal No. 08-044; Application of a Child with a Disability, Appeal No. 07-077; Application of the Bd. of Educ., Appeal No. 06-044; Application of the Bd. of Educ., Appeal No. 04-006; Application of a Child with a Disability, Appeal No. 02-086; Application of a Child with a Disability, Appeal No. 02- 011; Application of a Child with a Disability, Appeal No. 97-64).

In determining this motion I look to the standard applicable to such motion per section 3212 of the New York State Civil Practice Law and Rules. ie. “The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party.” In this case, the Parent has failed to respond and place the District’s allegation that the Student is “out-of-district” in issue and I therefore dismiss the proceeding and strike the hearing from the calendar.

Dated: October 1, 2013

So Ordered,

________________ Martin Kehoe, III

Impartial Hearing Officer Exhibits considered Letter to Parties August 13, 2013 Ex. 1 Letter to Parties August 20, 2013 Ex. 2 Parents’ application for testing protocols August 20, 2013 Ex. 3 Complaint notice July 26, 2013 Ex. 4 Letter to Parties September 17, 2013 Ex. 5 Letter from District September 18, 2013 Ex. 6 Letter to Parties September 20, 2013 Ex. 7 Motion by District September 20, 2013 Ex. 8 Letter to Parties September 23, 2013 Ex. 9 Letter from Parents September 23, 2013 Ex.10 Letter from District September 24, 2013 Ex. 11

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.

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Footnotes

[1] "special education" is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. The term "related services" is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26). 5