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Special Education Law
DECISIONDismissedIHO Case No. 193872

New York City Department of Education, Impartial Hearing Decision

October 23, 2020·Aristargos Christodoulou·New York City Department of Education

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CASE NUMBER: 537035 - NYC: 193872

FINDINGS OF FACT AND DECISION

Case Number: 193872

Student’s Name: REDACTED (hereinafter “Student”)

Date of Birth: REDACTED

District: REDACTED

Hearing Requested By: REDACTED

(hereinafter “Parent”)

Record Close Date: October 15, 2020

Date of Hearing: October 15, 2020

Hearing Officer: Aristargos Christodoulou

Hearing Officer’s Fact of Finding and Decision

_________________________________________________________________________________________________

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 15, 2020

For the Student:

REDACTED (hereinafter referred to as “The Attorney”); and

REDACTED (hereinafter referred to as “Attorney 1”).

For the Department of Education (“DOE”):

REDACTED (hereinafter referred to as “District’s representative”).

Hearing Officer’s Fact of Finding and Decision

_________________________________________________________________________________________________

INTRODUCTION

This matter comes before me pursuant to a due process complaint (“DPC”) that was filed with the Impartial Hearing Office on May 14th, 2020. In the first paragraph of the DPC it states that the Firm represents the Parents in matters pertaining to the program of special education and related services provided by the New York City Department of Education (“Department”) to the Student. In the second paragraph it states that the letter has been prepared and submitted on behalf of the Parents for the purpose of requesting an impartial hearing regarding the appropriateness of the program of special education and related services provided and/or recommended to the Student. In the third paragraph it states that the letter is offered as the Attorney’s Notice of Appearance in this case, and I am asked to include this notice in the record of this proceeding, which I have included as Exhibit IHO-I.

On October 7th, 2020, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415(f) and New York State Education Law §4404(1) to determine the claims in the DPC concerning the special education program of the Student, including inter alia whether there has been a denial of a Free Appropriate Public Education, whether to authorize funding for Independent Educational Evaluations (“IEEs”), whether to award compensatory services, including compensatory special education tutoring services, whether to award funding for an assessment for tutoring services and the cost of transportation for the Student and the Parents to travel to and from all tutoring sessions (Exhibit IHO-I).

BACKGROUND

This case involves what has been described by the Attorney as “a relatively unique situation”.

In the introductory email which I sent to the District’s representative and the Attorney on October 7th, 2020 informing of my appointment in this case, I called for a pre-hearing conference (“PHC”) (Exhibit IHO-II). In response to my email communication, the District’s representative and the Attorney provided their availability and a PHC was scheduled for October 15, 2020.

When responding to my email to confirm her availability for the PHC, the District’s representative raised a question of the Attorney’s representation of the Parents. In addition, the District’s representative called upon the Student’s parents to appear at the PHC to verify representation by counsel. The District’s representative asserted that the District had received information from credible witnesses that the Parent did not request or understand that she was requesting legal representation to file a complaint. The District’s representative therefore maintained that it would be crucial to determine whether there is jurisdiction before proceeding with any further proceedings (Exhibit IHO-II).

In response to the District’s representative’s email, the Attorney wrote back informing that the Parent would take part in the PHC as long as there is REDACTED interpreter. He further indicated that the Parent could confirm that she is in fact filing a complaint and is aware of the situation (Exhibit IHO-II).

Initially, I informed the District’s representative and the Attorney by email that I wanted to keep the PHC for its intended purposes (i.e. as envisaged by 8 NYCRR 200.5[j[[3][xi][a]-[e]), that I would not require the Parent’s attendance at the PHC and I encouraged the District’s representative and the Attorney to see if they could resolve the matter beforehand. If not, I informed the District’s representative and the Attorney that we could address it at the PHC, that I would afford both sides the opportunity to address me before determining how to resolve the issue, which could require scheduling a limited hearing for evidence to be proffered on the issue (Exhibit IHO-II).

The District’s representative persisted with her request and requested by email that the matter be addressed before proceeding with any other preliminary matter as it appeared that the Attorney was willing to have the Parent appear to verify representation. She further informed that the parties had exchanged correspondence to no avail and was requesting my indulgence to address this matter first (Exhibit IHO-II).

I therefore enquired, given the Attorney’s willingness to have the Parent attend the PHC to confirm authority, whether she would be available at the agreed date and time of the PHC. I informed the District’s representative and the Attorney by email that I was requesting REDACTED interpreter through the impartial hearing office and that should the Parent not be available or the impartial hearing office be unable to arrange the interpreter, that the PHC would proceed on the agreed date and time and that a separate limited hearing would be scheduled to deal with the issue (Exhibit IHO-II).

The Attorney confirmed that the Parent was available at the date and time of the scheduled PHC and I informed the Attorney that if an interpreter did not attend the PHC, she would not be expected to participate without the interpreter (Exhibit IHO-II). Both the interpreter and the Parent did in fact join the PHC telephonically on the scheduled date and time.

The District’s representative, the Attorney and I agreed at the start of the PHC that we would deal with the issue of representation and the Attorney’s authority at the PHC by way of witnesses being led on the record. The issue was then dealt with procedurally as a limited hearing. The District’s representative had one witness lined up to testify and the Attorney had arranged for the Parent to testify on the issue. Neither party sought to introduce any documentary evidence on the issue.

POSITIONS OF THE PARTIES AND EVIDENCE PRESENTED

District’s case:

The District’s representative made an opening statement emphasizing upfront that by raising the issue it was not an attempt/intent to mar the Attorney’s reputation and that she had not heard of or had any indication of anything other than it being a case of an attorney working and zealously representing his client. She indicated that it had however come to the District’s attention via several witnesses that are part of the school system that the Parent had no knowledge that she was represented by an attorney and that the representation had come as a surprise to her. She originally set out with the purpose of getting tutoring services for the Student and then the next thing she knew, she was being represented by an attorney.

The District’s representative called Witness 1 to testify. Insofar as the question of representation is concerned, Witness 1 testified that:

  • • She was familiar with the Student, who had been brought to her attention by the Principal.
  • • The Principal forwarded her an email, sent approximately in mid-April, from the Parent and that she (the Principal) did not understand why the email had been sent. The email was asking for certain independent evaluations, including a neuropsychological and assistive technology evaluation.
  • • Witness 1 advised the school to reach out to the Parent to get clarification and that later, after the DPC was received for the Student, she herself reached out to the Parent.
  • • She called the Parent and asked her if she understood English or needed a translator. She said yes, she spoke English and she answered her questions.
  • • She asked if the Parent was aware of “her request, her letter, her request for the evaluations” and the Parent said “no”.
  • • She asked the Parent during the call if she knew the Attorney and she responded “no”.
  • • The Parent also informed her during the call that she signed papers and returned them but that she did not know what the papers were.
  • • After her conversation with the Parent, she (Witness 1) believed that the Parent did not understand that she was being represented by an attorney, because the Parent seemed genuinely confused about what she had been asking about the attorney.
  • • She based her determination that the Parent was not represented by an attorney on the Parent’s statement that she did not know about “the request, the DP request, the impartial hearing request”.

No further witnesses were called by the District.

As to the burden of proof and the burden of persuasion, I had indicated to the parties that my understanding was that it was on the District. The District’s representative however argued that the District should not have the burden of proving that the representation is appropriate, which should be with counsel.

Parents’ case:

The Attorney made an opening statement asserting that unfortunately witness testimony was necessary at the PHC following allegations that his client was unaware of his representation. That the claim inherently implied that some fraud on the court has occurred (with regards to representation) and that he objected to that allegation as well. That the Parent was ready today to explain that she is represented and that she does want to bring claims against the DOE in order to get necessary appropriate relief for her son.

The Attorney called the Parent to testify. Insofar as the question of representation is concerned, the Parent testified that:

  • • She recalled contacting the Firm roughly eight months prior and that she remembered speaking to an attorney at the Firm regarding representation.
  • • She could not remember the name of the attorney as she used to get a lot of calls at that time.
  • • She could not recall if an interpreter was present and that her younger son would usually interpret for her and that if he was not there, she would get an interpreter every time.
  • • She did recall having a retainer meeting or meeting to discuss representation at the Firm with an interpreter present, but when asked in cross-examination what a retainer was, she responded that she did not know what that was.
  • • She could not remember at this time, when asked whether she was in contact with other attorneys at the Firm since that meeting.
  • • She understood that the reason why she was at the PHC was because she would like a tutor for her son, who is weak in his studies and he (the Student) “doesn’t understand it right now”.
  • • She did have a discussion with an attorney in the Firm about how she might be able to obtain necessary services for her son.
  • • She could not quite remember, but it sounded right that she told Witness 1 that she signed papers and sent them in.
  • • She also told Witness 1 that when she signed the papers, she didn’t understand what those were.
  • • “It had been a long time since then”, when she was asked during cross examination when she (the Parent) had come to understand that she had an attorney.
  • • She could not remember, as she had received so many phone calls, when asked whether she (the Parent) had told Witness 1 when they spoke that she was not represented by an attorney.

No further witnesses were called by the Attorney.

As to the burden of proof and the burden of persuasion, the Attorney stated that nothing rises to the level of the District meeting its burden that the Firm was not authorized to represent the Parent at the filing at the impartial hearing request.

The Attorney further asserted that it is generally accepted that when an attorney files a hearing request on behalf of a client that they are in fact represented. If there is an allegation that the client is in fact not represented, then the burden should be on the one making that allegation and therefore it should be on the District.

FINDINGS OF FACT AND DECISION

Under the Individuals with Disabilities Education Act (“IDEA”), State and local educational agencies are required to establish and maintain procedures to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of a free appropriate public education by such agencies[1]. Such procedures include procedures that require either party, or the attorney representing a party, to provide due process complaint notice[2] and includes a requirement that a party may not have a due process hearing until the party, or the attorney representing the party, files a notice that meets certain requirements[3]. It is clear that an attorney representing a parent is permitted to file a DPC on behalf of the parent under the IDEA. This entitlement is further supported by New York State Education Law[4] and the regulations[5].

What is clear from the testimony of the Parent is that she wants to get help for her son and that she does, at the time of the PHC, want the Attorney and the Firm to represent her. The question for determination however is whether the Attorney was authorized to represent the Parents at the time that the DPC was filed in this case.

As to the question of the burden of proof and the burden of persuasion, I am not persuaded that this should fall on counsel (as opposed to the Parent), as argued by the District’s representative. There is no authority for such proposition. In New York State the burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement.[6] I agree with the Attorney’s assertion that if there is an allegation that the client is in fact not represented, then the burden should be on the one making that allegation and therefore it should be on the District[7].

The District presented convincing evidence that: at the time that the DPC was filed the Parent was unaware of the DPC and the claims being made for IEEs; she was unaware that she was being represented by an attorney; and she had signed papers and returned them but that she didn’t know what the papers were. This evidence was not only uncontroverted but was confirmed by the Parent in key respects, which I detail below.

During the call between the Parent and Witness 1, which according to Witness 1 occurred at a time when the DPC had already been filed, the Parent testified that she could not quite remember, but that it sounded right that she told Witness 1 that she signed papers and sent them in. The Parent further testified that she also told Witness 1 that when she signed the papers, she didn’t understand what those were. This evidence to my mind corroborates Witness 1’s version of the phone call, specifically when Witness 1 asked if the Parent was aware of “her request, her letter, her request for the evaluations” and the Parent said “no”. It is unlikely that the Parent would have told Witness 1 that she had signed papers and sent them in not knowing what they were, if she had not also just told Witness 1 that she was unaware of her requests in the DPC, which was Witness 1’s testimony.

Not only is it is a logical follow up question, but the latter question and answer does not make sense in the context of the conversation without the Parent first having made the former acknowledgment to Witness 1 in response to her question relating to the DPC. Furthermore, Witness 1 testified that the main purpose of the call to the Parent was to understand if she was aware of the DPC and her representation and therefore it is inconceivable that she (Witness 1) would have made the call with that purpose in mind and not asked those questions of the Parent.

The Parent testified that she had some contact with the Firm “roughly eight months ago”. She also testified that she was getting so many calls at that time and her recollection as to timing was vague. For example, the Parent stated that “it had been a long time since then”, when asked during cross examination when she (the Parent) had come to understand that she had an attorney. This recollection is vague and unhelpful in establishing even a rough timeframe to ascertain when the Parent came to that understanding.

Logic dictates that there clearly must have been some contact between the Parent and the Firm, which would have enabled the Firm to have obtained the necessary information about this case and the Student, to prepare and then file the DPC. There is also no doubt that at the time of the PHC, the Parent wants to proceed with this case and have the Attorney and Firm represent her in these proceedings. She stated so when testifying.

At the close of the District’s case, it had presented sufficient evidence to discharge the burden placed upon it. The case presented in response consisted largely of assertions made through the questioning of Witness 1 as to some other possibilities, but which was not subsequently substantiated with witness testimony or documentary evidence. For example, Witness 1 was cross-examined about whether she knew how many lawyers worked at the Firm and how many lawyers worked on one case. There were questions put to Witness 1 that suggested that another attorney, other than the Attorney had worked on the case and that the Parent may just not have known of the Attorney by name.

Witness 1 was also questioned about the letter the Principal received and it was suggested that someone other than the Parent had prepared or assisted the Parent to prepare and send this letter to the Principal. It was put to Witness 1 that another attorney in the Firm had done so.

Despite the fact that the Attorney was questioning Witness 1 on all these (and related) matters, there was no evidence subsequently presented by the Attorney on any of these matters. Accordingly, no such facts have been placed before me in the record. The Attorney chose not to offer any witness testimony (or other documentary proof) from any member of the Firm of its encounters with the Parents that might have given some clarity on timing, specifically the encounter(s) with the Parents that ultimately led to the Firm being appointed to represent the Parents in these proceedings. Although the decision as to the evidence to proffer falls solely within the Attorney’s discretion, I can only decide based upon the evidence contained in the record.

Although I allowed (despite hearsay objections from the Attorney) the District’s representative some leeway when she led Witness 1’s testimony to lay the foundation for her witness, which included testimony of a call alleged to have taken place between the school psychologist and the Parent and also covered a report the school psychologist subsequently made, I found this evidence to be too far removed to be reliable and therefore no weight was given to it in deciding this issue.

In addition, during the testimony of Witness 1 the court interpreter, who was interpreting the testimony for the benefit of the Parent, translated Witness 1’s answer to a question she had been asked. Witness 1 stated “I asked the Parent if she knew the Attorney and she responded “no””. The court interpreter interpreted the statement and the parent replied to her in REDACTED. The court interpreter then translated the Parent’s response into English informing that the Parent replied that “at that time I did not know of the Attorney but now I do know that he is our lawyer”. I requested the court interpreter to inform the Parent that she should not respond to the testimony being interpreted and that she would get a chance to testify later.

To my mind, this response was made when the Parent was not under oath and not being questioned. I have disregarded it for purposes of deciding this issue and no weight was given to the statement made by the Parent.

Several questions were put to Witness 1 during cross-examination relating to the Parent’s ability to understand English. Even if English is not the Parent’s first language and that she sometimes uses her son to help her translate, I accept Witness 1’s testimony that the Parent spoke to her in English and that she believed that the Parent understood what she was saying. This is corroborated by the Parent’s testimony, when she confirmed under oath with the use of a court interpreter, that she told Witness 1 that when she signed the papers, she did not understand what those were. The Parent did not testify that she did not say any such thing or that she did not understand what Witness 1 was asking of her.

Representation is a question of fact, but also one of intention. There is no evidence that has been entered in the record that confirms that at the time of the filing of the DPC the Parents had the intention for the Firm to act on their behalf and make the claims contained therein for and on behalf of the Student.

Even though she may have had a prior call with someone from the Firm eight months prior, along with many other calls she had received at the time, I find that the Parent did not understand, at least at the time of her call with Witness 1 (which occurred at a time that the DPC had already been filed), that she had authorized the Firm to act on her behalf to file a DPC and make the claims that are included therein.

It is important that I make clear that this finding should in no way be construed, by implication or otherwise, to cast any negative aspersions on the part of the Attorney or the Firm. I arrived at this conclusion based purely on the limited evidence in the record. The very assertions put forward by the Attorney as to the Parent’s inability to understand English (questioning whether the alleged statements could have been made to Witness 1 during their conversation) may very well explain the disconnect that ultimately resulted.

APPROPRIATE REMEDY

I am aware that the IDEA contemplates, and concurrent federal and State regulations have been enacted relating to the "efficient, expeditious administration of IDEA benefits[8]. Furthermore, I also take my responsibility to limit the hearing to issues raised in the due process complaint notice and encourage the parties to narrow the number of issues that must be resolved through litigation rather than promote a litigious approach to resolution of disputes very seriously[9]. The issue in question was however raised by the District and not the Parent/Attorney, and the parties agreed to deal with it at the commencement of the PHC.

I arrived at the appropriate remedy by considering how Courts have approached cases in which the question of locus standi or the doctrine of standing arose for determination[10]. Noncustodial parents generally do not have standing to sue for alleged IDEA violations. Although in the present case it is not the Parents’ standing at issue per se, but rather the authorization of the Firm in acting for the Parents, generally a finding that the party lacked standing resulted in a dismissal of the case[11].

There is case authority that where a parent lacks educational decision-making authority and therefore may not initiate a due process hearing, but if she had filed her claim prior to losing custody, she may be able to pursue it (i.e. authority existed at the start and was later lost)[12] The present case is the reverse situation, namely that the Parent is now desirous of having the Firm represent her and make the claims detailed in the DPC but it has been found that no such authority (based on the evidence presented) existed at the time the DPC was filed.

I have therefore determined that the appropriate remedy in the circumstances of this unusual case is to dismiss the DPC, without prejudice. While this would essentially force the Parents to start over, there is currently a waitlist to ensure that DPCs are assigned in as fair and efficient a manner as possible, in accordance with federal and State laws and regulations pertaining to special education due process procedures. To permit this DPC to proceed given the Parent’s verification of her desire at the PHC, and given my finding on the issue of representation, would be to undermine the fairness of the system that has been put in place.

Finally, I wish to make it abundantly clear that although the DPC is being dismissed without prejudice, no part of the substantive claims raised in the DPC have been dealt by me in these proceedings and therefore the outcome should in no way bar the Parents from pursuing those claims in the future.

ORDER

IT IS THEREFORE ORDERED THAT:

The Due Process Complaint dated 05/14/2020 is dismissed, without prejudice.

SO ORDERED.

DATED: October 23rd, 2020

____AHC____(Signed Electronically)___

Impartial Hearing Officer

Aristargos (Harry) Christodoulou

Hearing Officer’s Fact of Finding and Decision

_______________________________________________________________________

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

APPENDIX A – PERSONALLY IDENTIFIABLE INFORMATION

STUDENT v. SCHOOL DISTRICT

REDACTED

APPENDIX B – ADMITTED EXHIBITS

STUDENT v. SCHOOL DISTRICT

EXHIBIT NUMBER

DATE

DESCRIPTION

NO. OF PAGES

Petitioners’

Exhibits:

None

-

-

-

District’s

Exhibits:

None

-

-

-

IHO Exhibits:

IHO-I

05/14/20

DPC under case #193872 and email

9

IHO-II

10/07 - 10/09/20

Email exchanges between the Parties and the IHO

9

Footnotes

[1] U.S.C. § 1415 (a).

[2] U.S.C. § 1415 (b)(7)[A].

[3] U.S.C. § 1415 (b)(7)[B].

[4] Article 89 (see Educ. Law § 4404 “… and the party presenting the complaint or their attorney provides a due process complaint notice in accordance with federal law and regulations …” (my emphasis)).

[5] See 8 NYCRR 200.5(i)(1) “The party presenting the complaint, or the attorney representing such party…”(my emphasis); See 8 NYCRR 200.5(i)(2) “A party may not have an impartial due process hearing until the party, or the attorney representing the party, files a due process complaint notice that meets the requirements of paragraph (1) of this subdivision” (my emphasis)).

[6] Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007; See M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256 [S.D.N.Y. Aug. 27, 2010].

[7] See Schaffer v. Weast, 546 US 49, 59-62 [2005].

[8] Application of a Student with a Disability, Appeal No. 08125; Application of the Dep't of Educ., Appeal No. 06-133; Application of a Child with a Disability, Appeal No. 03-018; Application of a Child with a Disability, Appeal No. 97-11.

[9] See 8 NYCRR 200.5[j][1][ii]; [3][iii], [xi].

[10] In Saucon Valley School District, 114 LRP 45479 (SEA PA 09/25/14), a state court order giving the father of a teenager with Down syndrome the exclusive ability to make educational decisions on the student's behalf altered the mother's status as a "parent" under the IDEA. Because the mother, who shared legal custody of the student, lacked standing to object to the Pennsylvania district's proposal to change the teen's placement, the hearing officer dismissed her due process complaint. See also In re: Student with a Disability, 68 IDELR 117 (SEA VA 2016) (Because a court order gave the mother sole educational decision-making authority, the father could not use due process to force the teen's district to exit her from special education.).

[11] In Fuentes v. Board of Education of the City of New York, 52 IDELR 152 (2d Cir. 2009), the 2d U.S. Circuit Court of Appeals held that the father of a student with a disability could not sue a New York district over his son's allegedly inadequate special education services. Because the father was the student's noncustodial parent, the 2d Circuit held that he did not have the right to make decisions about the student's education. See Driessen v. Lockman, 61 IDELR 61 (11th Cir. 2013, unpublished) (holding that a noncustodial mother without authority to make educational decisions for her children lacked standing to bring an IDEA judicial action); W.S. v. Wilmington Area Sch. Dist., 66 IDELR 249 (W.D. Pa. 2015) (holding that the mother, as the noncustodial parent, did not have the right to bring a FAPE claim); and Chukwuani v. Solon City Sch. Dist., 120 LRP 13433 (6th Cir. 04/21/20, unpublished) (stating that where a parent lacks authority to make educational decisions on a child's behalf, he cannot bring a claim under the IDEA).

[12] See Framingham Pub. Schs., 116 LRP 26018 (SEA MA 06/06/16) (A parent's loss of custody of a 6-year-old child to a state agency after she filed her counterclaim did not block her ability to pursue the claim.).