New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 540454 - NYC: 197135

COVER SHEET

Date of Request August 26, 2020

Hearing Officer Sharyn Finkelstein

DECISION

Student’s Name REDACTED

Date of Birth REDACTED

District REDACTED

Hearing Request By Parent

Hearing Date December 29, 2021

Record Close January 3, 2022

Hearing Officer Sharyn Finkelstein

NAMES AND TITLES OF PERSON WHO APPEARED ON DECEMBER 29, 2021

FOR THE STUDENT

REDACTED Attorney

FOR THE DEPARTMENT OF EDUCATION

REDACTED Attorney

I was appointed on July 30, 2021, to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(1), concerning the special education of REDACTED (hereinafter referred to as “Student”) for the 2019-2020 school year. The Due Process complaint had been filed on August 26, 2020.

The parties moved to extend the compliance date on several occasions. In considering the requests, I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution in this matter.

The record was closed on January 3, 2022.

Attached is a list of persons who attended the hearing and evidence that was submitted.

BACKGROUND

There is a current case that is being litigated for Student for the 2019-2020 school year. (Exhibit 2) The case was filed prior to this case and by a different law firm. (Tr. 22)

On August 26, 2020 Parent filed another due process complaint for the same year. (Exhibit A) Parent alleges a denial of FAPE by failing to implement Student’s educational program in the last agreed upon IEP. They request various forms of relief including the IHO to require schools to re-open or in the alternative allowing Parent’s to self-cure, independent evaluations, compensatory services, and attorney fees.

A prehearing conference was held on September 12, 2021.

A status conference was held on October 20, 2021. Parent’s attorney indicated that the matter may be withdrawn and requested another status conference instead of scheduling hearing dates.

At a status conference on November 23, 2020 Parent’s attorney advised that they were not withdrawing the matter. Department of Education (DOE) presented their position that the complaint should be dismissed. Parent presented their opposition to the dismissal. Both parties submitted written briefs in support of their positions.^[1] (Exhibits B and 1)

I scheduled a status conference for December 12, 2021 to get clarification on one point prior to rendering my decision. At the status conference, Parent’s attorney advised that they wished to withdraw the matter without prejudice. Department stated their opposition to matter being dismissed without prejudice.

On December 29, 2021 a hearing was held and Parties presented their positions. Both parties presented written arguments. (Exhibits C and 3)

DEPARTMENT OF EDUCATION’S POSITION The Department of Education (DOE) was represented by their attorney REDACTED. It is their position that there is a prior case with the same claims and this matter should be dismissed with prejudice. They maintain that the claims in the due process complaint have been determined beyond the scope of a hearing officer by the SRO in other matters filed by Parent’s attorney. It is their position that an IHO has no jurisdiction to reopen Student’s school during COVID. They maintain that the matter is now moot because the schools are now open. It is their position that there are no additional claims upon which relief may be granted. (Exhibit 1) They argue that Parent has offered no compelling reason as to why case should not be addressed with prejudice. (Exhibit 3)

PARENT’S POSITION

Parent was represented by their attorney REDACTED. Parent points out that there has been a change in circumstances because of COVID since the filing of the initial due process complaint. They point out that they there have been no documents entered into the record and no substantive hearing. They argue that there is no sufficient basis for imposing a withdrawal with prejudice.

DISCUSSION

Pursuant to State regulation, a due process complaint may be withdrawn by the party requesting a hearing (see 8 NYCRR 200.5[j][6]). The party seeking to withdraw the DPC must immediately notify the IHO and the other party, and the IHO “shall issue an order of termination,” unless the party withdraws the DPC prior to the first impartial hearing date (8 NYCRR 200.5[j][6][ii]). A withdrawal “shall be presumed to be without prejudice except that the [IHO] may, at the request of the other party and upon notice and an opportunity for the parties to be heard, issue a written decision that the withdrawal shall be with prejudice” (8 NYCRR 200.5[j][6][ii]). The IHO’s written decision that such withdrawal shall be “with or without prejudice” is binding upon the parties unless appealed to an SRO (8 NYCRR

200.5[j][6][ii]).

In this instance, Parent withdrew the due process complaint at a status conference which was prior to any impartial hearing date. DOE immediately stated their objection to the withdrawal being without prejudice. Both parties had an opportunity to be heard both on the record and by means of written submissions.

The relief sought in the complaint before me includes much of the same relief as requested in the initial complaint. Parent had already requested independent evaluations and compensatory relief for missed services.

Parent points out that circumstances have changed since the filing of the initial complaint. They could not have possibly been known that schools would be closed. This claim is another basis for their relief and they wish to reservice the right to refile their claim depending on the outcome of the prior due process complaint.

In the complaint there are allegations of a denial of FAPE directly related to the closure of schools and specifically based on Student receiving related services remotely without any consent or notice to Parent. It is their position that this is a procedural violation that rises to the level of denial of FAPE. Parent requests as part of the relief for the denial of FAPE that the hearing officer open the schools. DOE argues that an IHO does not have the authority or jurisdiction to adjudicate or alter general DOE systemic polices or practices.

The decision by the DOE to close public schools was a systemic decision due to the pandemic (see J.T. v. de Blasio, 500 F.Supp.3d 137 [S.D.N.Y. November 13, 2020]). The subject matter of whether a public school should reopen during a global pandemic is not within the purview of an IHO, but rather it is the legal authority vested with the mayor and governor, as granted by law (Chapter 23 of 2020; Executive Order 202 of 2020).

I find that I have no jurisdiction to reopen public schools and as pointed out by DOE, the subject is now moot. Parent’s request to self-cure is also moot.

. I agree with DOE that an IHO has no jurisdiction over the closure and reopening of schools. I agree that the same relief is addressed in the prior complaint. This includes request for independent evaluations and compensatory education. (Tr. 23) However, the basis for the compensatory services were not and could have been alleged in the initial complaint.

In this case the Parent bases the denial of FAPE on the failure to implement the IEP. They argue that DOE modified Student’s IEP without notice or consent to Parent. The related services were delivered remotely and not in person.

Former governor Cuomo declared a disaster emergency in the state of New York and issued an Executive Order which order every school in the State of New York to close no later than March 18, 2020, for a two-week period. The executive order was subsequently extended until the end of the 2019-2020 school year (Executive Order 202.11 and 202.14). Once he closed New York’s schools through his emergency powers, the determination of how

Individualized Education Programs were to be implemented under remote instruction fell within the purview of each school district (Chapter 23 of 2020; Executive Order 202 of 2020; Bd.

Of Educ. of Northport-E. NorthportUnion Free Sch. Dist. v. Ambach, 90 AD2d 231, 232 (NY 3d

Dep’t 1982).

The extraordinary circumstances of the COVID-19 pandemic and switch to remote instruction does not on its own warrant a finding that the DOE’s remote program was inappropriate (see Appeal No. 20-184 and Appeal No. 21-006, wherein the SRO stated that the system wide closure of school buildings due to COVID-19 pandemic and resultant remote or hybrid learning was not a change in placement and did not transform the pendency placement).

I find that the change in delivery of services did not result in a denial of FAPE. I find that the “modification” was due to the school closure.

Inasmuch as there is no denial of FAPE because of the closures, Parent is not entitled to relief. Even had there been a procedural violation rising to the level of a denial of FAPE, I find that the requested relief is beyond my jurisdiction.

I find nothing in the complaint before me that has any basis for relief that has not been addressed in the prior complaint. Parent acknowledged that it would depend on the outcome of the initial complaint if they would refile. I find no reason to allow Parent to have a second opportunity to seek the same relief if they are not granted the relief in the first complaint.

ORDER

The complaint is withdrawn with prejudice.

Sharyn Finkelstein IHO January 16, 2022

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.

EVIDENCE ENTERED INO RECORD

PARENT

A Due process request 8/26/2020 4 pages

B Opposition for motion to dismiss 12/3/2021 11

C Motion to withdraw without prejudice 12/28/2021 3

DEPARTMENT OF EDUCATION

1 Motion to dismiss 12/3/2021 11

2 Prior due process complaint 192455 1/31/2020 11

3 Motion to withdraw with prejudice 12/28/2021 4

Footnotes

[1] I did not render an interim order upon Parent’s request to withdraw. DOE argues that this was Parent’s method to avoid an interim order. Parent had the right to withdraw even after a hearing has begun. I did incorporate both the motion to dismiss and opposition to dismiss into my final decision.