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UNIVERSITY OF THE STATE OF NEW YORK
NEW YORK STATE EDUCATION DEPARTMENT
In the Matter of [REDACTED] (hereinafter the “Parent”),) on behalf of [REDACTED] (hereinafter the “Student”),)
)
Petitioners,) Jeffrey J. Schiro, Esq.
) Impartial Hearing Officer
-against-)
) IHRS Case Nos. 552466 &
BOARD OF EDUCATION OF THE) 552467 (consolidated)
WESTHAMPTON BEACH UNION FREE)
SCHOOL DISTRICT,)
)
Respondent.)
DECISION & ORDER
For the Student:
[REDACTED], Parent, pro se
For the School District:
[REDACTED], Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED FOR PHC ON JUNE 22, 2021
For the Student:
[REDACTED], Parent, pro se
For the District:
[REDACTED], ESQ., Attorney
[REDACTED], Legal Intern
NAMES AND TITLES OF PERSONS WHO APPEARED FOR PHC ON JUNE 28, 2021
For the Student:
[REDACTED], Parent, pro se
For the District:
[REDACTED], ESQ., Attorney
[REDACTED], Legal Intern
I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. On June 2, 2021, the school district received a due process complaint in IHRS . In that complaint, the parent seeks a declaratory judgment that the student’s rights under the IDEA and Section 504 of the Rehabilitation Act of 1973 (“Section 504”) were violated when a school district administrator authored a March 5, 2021 letter to a consultant retained by the school district to provide services to the student (Ex. P-A).[1]
On June 3, 2021, the school district received a due process complaint in IHRS Case No. 552467. The primary issue in that complaint is whether the school district’s Committee on Special Education (the “CSE”) denied the parent the opportunity to meaningfully participate in a meeting held on June 2, 2021 (Ex. P-B).
When a student in New York is eligible for special education services, the IDEA calls for the creation of an IEP, which is delegated to a local CSE that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(A)-(B); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R.
§§ 300.503(a)(1)-(2), 300.507(a)(1).
An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(A), (h)(1)-(3); 34 C.F.R.
§§ 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii).
The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration of the resolution session period. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR
§ 200.5(k).
II. PROCEDURAL HISTORY
On June 4, 2021, the Board of Education of the Westhampton Beach Union Free School District (the “District”) appointed the undersigned to serve as the IHO in both IHRS and IHRS Case No. 552467 (Exs. IHO-I at 1, IHO-II at 1). See 8 NYCRR § 200.5(j)(3)(i).
On June 12, 2021, the District served the parents with a combined answer and motion to dismiss the complaint in IHRS (Exs. SD-1, SD-2). See 8 NYCRR §§ 200.5(i)(4)-(5). On June 16, 2021, the District served the parents with a combined answer and motion to dismiss the complaint in IHRS Case No. 552467 (Exs. SD-3, SD-4). See 8 NYCRR §§ 200.5(i)(4)-(5).
On June 22, 2021, a pre-hearing conference was held with the parties in IHRS . See 8 NYCRR § 200.5(j)(3)(xi). The agenda for the June 22, 2021 pre-hearing conference was to determine the scope of my appointment, discuss possible consolidation of IHRS with other pending matters before me involving the same student with a disability, and set a briefing schedule on the school district’s motion to dismiss. At the June 22, 2021 pre-hearing conference, the District confirmed that my appointment in IHRS was limited to only the parent’s IDEA claims (6/22/21 Tr. at 8). Related claims arising under Section 504 of the Rehabilitation Act of 1973 are pending before the Commissioner of Education and the Federal District Court of the Eastern District of New York (Exs. SD-2 ex. D, SD-3 ex. A).
On June 28, 2021, a pre-hearing conference was held with the parties in IHRS Case No. 552467. See 8 NYCRR § 200.5(j)(3)(xi). The agenda for the June 28, 2021 pre-hearing conference was to discuss possible consolidation of IHRS Case No. 552467 with other pending matters before me involving the same student with a disability and to set a briefing schedule on the school district’s motion to dismiss. At the June 28, 2021 pre-hearing conference, the parties jointly moved for consolidation of IHRS Case No. 552467 with IHRS (6/28/21 Tr. at 22-28). The parties’ joint motion was granted, and the cases were consolidated in an Order dated June 30, 2021 (Ex. IHO-III). See 8 NYCRR §§ 200.5(j)(3)(ii)(a)(2), (4).
On June 30, 2021, the parents filed their response in opposition to the District’s motion to dismiss (Ex. P-C) and on July 26, 2021 the District filed its reply in support of its motion (Ex. SD-5).
Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).
III. FACTUAL BACKGROUND
At the time of the June 2021 due process complaints, the student was [REDACTED] years old and has a medical diagnosis of Down Syndrome which has an impact on his motor and sensory development and performance in the education environment (Exs. P-A, P-B, SD-4 ex. C at 6). The student's eligibility for special education and related services as a student with an intellectual disability is not in dispute in this hearing (Exs. P-A, P-B, SD-4 ex. C at 1).[2] See 8 NYCRR § 200.1(zz)(7).
The student in this case has been the subject of ten prior State-level administrative appeals.[3] Accordingly, the parties’ familiarity with the student’s educational history is presumed and will not be restated here.
The due process complaint in IHRS centers on a March 5, 2021 letter that the District’s Director of Pupil Personnel Services forwarded to [REDACTED] (hereinafter referred to the “Private Consultant”). The Private Consultant has been retained by the District to serve as the student’s transition coordinator and provide the family with parent training. The Private Consultant also supervises an employee who serves as the student’s educational consultant (Ex. SD-2 at ¶ 2 & ex. B). In the March 5, 2021 letter, labeled “personal and confidential,” the District’s Director of Pupil Personnel Services objected to a February 26, 2021 proposal by the Private Consultant that her employee “take on the role of a special educator” for the student. The District’s Director of Pupil Personnel Services asserted that the Private Consultant’s proposal was beyond the scope of her consulting agreement with the District and “more reflective of a parent advocate” advancing “the parents’ desire to have their son educated within [the District’s] high school building” (Ex. SD-2 ex. B).
The due process complaint in IHRS Case No. 552467 concerns a CSE meeting held on June 2, 2021 via a Google Meet. The agenda for that meeting was to review a physical therapy evaluation conducted on January 19-20, 2021.[4] At the outset of the meeting, the parents objected to the District’s Director of Pupil Personnel Services serving as the CSE Chairperson and objected to the presence of the District’s legal counsel at the meeting. The parents also objected to the absence of a stenographer from the meeting and the CSE’s stated intent to conclude the meeting within forty-five minutes. The parents advised the CSE that they would not participate in the meeting unless their objections were resolved to their satisfaction. After some discussion, the parents exited the (virtual) meeting which then continued in their absence. No change in service or recommendations were proposed at the CSE meeting. The CSE determined that physical therapy services would continue at the same frequency through the end of the school year (Ex. SD-4 exs. B at 2, C).
IV. POSITIONS OF THE PARTIES
A. The District The parents’ due process complaints in this consolidated case should be dismissed as a matter of law. The complaint in IHRS concerning the District’s Director of Pupil Personnel Services’ March 5, 2021 letter to the Private Consultant should be dismissed as insufficient and because it fails to state a cause of action. The complaint is redundant of similar claims pending before both the Commissioner of Education and the Federal District Court of the Eastern District of New York. The March 5, 2021 letter was a valid exercise of executive discretion (Exs. SD-1, SD-2).
The complaint in IHRS Case No. 552467 should also be dismissed. The District did not deny the parents the opportunity to meaningfully participate in the June 2, 2021 meeting. The District has the authority to designate which employees shall serve as the CSE Chairperson and had a right to the presence of legal counsel at the meeting. The District was not obligated to provide a stenographer at the meeting and the time allotted for the meeting was sufficient. As there was no change made at the June 2, 2021 meeting to the student’s IEP, the parents’ claims regarding alleged changes to physical therapy goals and services are not yet ripe and/or are moot (Exs. SD-3, SD-4).
B. The Parents The District’s motion to dismiss should be denied in its entirety. The District’s Director of Pupil Personnel Services’ March 5, 2021 letter to the Private Consultant was “improper and subversive” to the integrity of both the CSE process and an ongoing impartial hearing before IHO Schiro in IHRS Case No. 549825. The District’s Director of Pupil Personnel Services’ conduct disqualifies her from serving as a chairperson at CSE meetings for the student. There was no legal issue which compelled the attendance of the District’s legal counsel at the June 2, 2021 CSE meeting. Given the history of litigation between the parties, it was reasonable for the parents to insist on the presence of a stenographer to transcribe the meeting. The complaint (in IHRS Case No. 552467) is not moot just because there were no changes made to his IEP. Continuing the June 2, 2021 meeting in the parents’ absence (rather than simply adjourning the meeting) denied them a meaningful opportunity to participate in the meeting.
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. General IDEA Standards
Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).[5]
A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 (2d Cir. June 24, 2013); R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012), cert. denied 2013 WL 1418840 (U.S. June 10, 2013); M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).
B. Motion to Dismiss
As a general matter, summary disposition procedures akin to those used in judicial proceedings are a permissible mechanism for resolving certain proceedings under the IDEA; however, they should be used with caution and are appropriate in instances in which “the parties have had a meaningful opportunity to present evidence and the non-moving party is unable to identify a genuine issue of material fact.” See J.D. v. Pawlet Sch. Dist., 224, F.3d 60, 69 (2d Cir. 2000); Application of a Student with a Disability (New York City Sch. Dist.), Appeal No. 11-090 at 3 n.3 (SRO Sept. 15, 2011); Application of a Student Suspected of Having a Disability, Appeal No. 11-044 at 5 n.5 (SRO June 22, 2011).
The District has moved to dismiss both complaints in this consolidated case (Exs. SD-1, SD-2, SD-3, SD-4). Decision on the District’s motions was reserved until after pre-hearing conferences were held on both complaints and until after the parties’ submission of documentary evidence supporting their respective positions, as an evidentiary record must be established to provide an adequate record for review (Exs. P-C, SD-5). See 8 NYCRR § 200.5(j)(3)(xii); Application of a Student with a Disability (Ardsley Union Free Sch. Dist.), Appeal No. 18-104 at 7 n.6 (SRO Bates Nov. 14, 2018). Having reviewed the content of those submissions, I find that I now have sufficient evidence to make necessary findings of fact and of law relative to the District’s motion to dismiss.
1. Sufficiency of Complaint – IHRS
Among other arguments, the District has moved to dismiss the complaint in IHRS as insufficient (Ex. SD-2 at 8-12). A due process complaint must meet the requirements of Federal and State law relating to the sufficiency of the content of the complaint. See 20 U.S.C. § 1415(b)(7)(A); 34 C.F.R. § 300.508(b); 8 NYCRR § 200.5(i)(1). An impartial due process hearing may not proceed unless the due process complaint satisfies the sufficiency requirements. See 20 U.S.C. § 1415(b)(7)(B); 34 C.F.R. § 300.508(c). "The purpose of the sufficiency requirement is to ensure that the other party, which is generally the school district, will have an awareness and understanding of the issues forming the basis of the complaint." Application of the New York City Dep’t of Educ., Appeal No. 07-046 at 7 (SRO June 13, 2007) (quoting S. Rep. 108-185, Individuals with Disabilities Education Act Senate Report No. 108-185, "Notice of Complaint," (November 3,2003).
In pertinent part, a due process complaint shall include the name and address of the child and the name of the school which the child is attending, a description of the nature of the problem of the child relating to the proposed or refused initiation or change, including facts relating to the problem, and a proposed resolution of the problem. See 20 U.S.C. §
1415(b)(7)(A)(ii); 34 C.F.R. § 300.508(b); 8 NYCRR § 200.5(i)(1). Should a hearing officer determine that the due process complaint is insufficient, the hearing officer may dismiss the complaint. See Questions and Answers on Procedural Safeguards and Due Process Procedures for Parents and Children with Disabilities, 52 IDELR 266, Question C-4 (OSERS 2009).
From my review of the parents’ due process complaint in IHRS , I find that it is insufficient as a matter of law because it fails to conform to the minimal pleading requirements required by law. See 8 NYCRR § 200.5(i)(1). Specifically, the parents’ due process complaint fails to include a proposed resolution of the problem relating to the identification, evaluation or educational placement of a student with a disability. See 8 NYCRR § 200.5(i)(1)(v). In IHRS Case No. 552466, the parents seek a “declaratory judgment” that the District’s Director of Pupil Personnel Services’ March 5, 2021 letter to the Private Consultant, “violated the due process protections afforded by the IDEA” (Ex. P-A at 2). The parents, however, have failed to cite or point to any authority indicating that an IHO or SRO should proceed with resolution of a claim where the sole remedy sought is declaratory relief. See Application of a Student with a Disability (Chappaqua Cent. Sch. Dist.), Appeal No. 13-212 at 16 (SRO Jan 8, 2014). In light of this defect, the District’s motion to dismiss the complaint in IHRS as insufficient is granted.
2. Predetermination/Parent Participation – IHRS Case No. 552467 In the complaint stemming from the June 2, 2021 CSE meeting (IHRS Case No. 552467), the parents assert that that the outcome of the meeting was predetermined and that they were unable to participate in the meeting in a meaningful way (Ex. P-B at 1-3).
As to predetermination, the consideration of possible recommendations for a student prior to a CSE meeting is not prohibited as long as the CSE understands that changes may occur at the CSE meeting. See T.P., 554 F.3d at 253; A.P. v. New York City Dep't of Educ., 2015 WL 4597545, at *8-*9 (S.D.N.Y. July 30, 2015); see also 34 C.F.R. §§ 300.501(b)(1), (3); 8 NYCRR §§ 200.5(d)(1), (2). The key factor with regard to predetermination is whether the school district has "an open mind as to the content of [the student's] IEP." T.P., 554 F.3d at 253; see D.D-S. v.
Southold Union Free Sch. Dist., 2011 WL 3919040, at *10-*11 (E.D.N.Y. Sept. 2, 2011), aff'd, 506 Fed. App'x 80 (2d Cir. Dec. 26, 2012); R.R. v. Scarsdale Union Free Sch. Dist., 615 F. Supp.
2d 283, 294 (E.D.N.Y. 2009), aff'd, 366 Fed. App'x 239 (2d Cir. Feb. 18, 2010). School districts may "'prepare reports and come with pre[-]formed opinions regarding the best course of action for the child as long as they are willing to listen to the parents and parents have the opportunity to make objections and suggestions.'" DiRocco v. Bd. of Educ. of Beacon City Sch. Dist., 2013 WL 25959, at *18 (S.D.N.Y. Jan. 2, 2013), quoting M.M. v. New York City Dept. of Educ. Region 9 (Dist. 2), 583 F. Supp. 2d 498, 506; (S.D.N.Y. 2008); see B.K. v. New York City Dept. of Educ., 12 F. Supp. 3d 343, 358-59 (E.D.N.Y. 2014) (holding that "active and meaningful" parent participation undermines a claim of predetermination). The IDEA sets forth procedural safeguards that include providing parents an opportunity "to participate in meetings with respect to the identification, evaluation, and educational placement of the child." See 20 U.S.C. § 1415(b)(1). Federal and State regulations governing parental participation require that school districts take steps to ensure that parents are present at their child's IEP meetings or are afforded the opportunity to participate. See 34 C.F.R. § 300.322; 8 NYCRR § 200.5(d). Although school districts must provide an opportunity for parents to participate in the development of their child's IEP, mere parental disagreement with a school district's proposed IEP and placement recommendation does not amount to a denial of meaningful participation. See T.F. v. New York City Dep't of Educ., 2015 WL 5610769, at *5 (S.D.N.Y. Sept. 23, 2015); A.P., 2015 WL 4597545 at *8, *10; E.F. v. New York City Dep’t of Educ., 2013 WL 4495676 at *17 (E.D.N.Y. Aug. 19, 2013) (stating that "as long as the parents are listened to," the right to participate in the development of the IEP is not impeded, "even if the [district] ultimately decides not to follow the parents' suggestions"); P.K. v. Bedford Cent. Sch. Dist., 569 F. Supp. 2d 371, 383 (S.D.N.Y. 2008) ("A professional disagreement is not an IDEA violation"); School for Language & Communication Dev. v. New York State Dep't of Educ., 2006 WL 2792754, at *7 (E.D.N.Y. Sept. 26, 2006) ("Meaningful participation does not require deferral to parent choice"). When determining whether a district complied with the IDEA's procedural requirements, the inquiry focuses on whether the parents "had an adequate opportunity to participate in the development" of their child's IEP. See Cerra, 427 F.3d at 192; see also T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 420 (2d Cir. 2009) (noting that the IDEA gives parents the right to participate in the development of their child's IEP, not a veto power over those aspects of the IEP with which they do not agree).
Here the parents assert that they were denied an adequate opportunity to meaningfully participate in the June 2, 2021 CSE meeting because: (i) the District’s Director of Pupil Personnel Services refused to recuse herself as the CSE Chairperson; (ii) the District’s legal counsel refused to leave the meeting; (iii) the District did not provide a stenographer to transcribe the meeting; and (iv) the CSE allocated only forty-five minutes to complete the meeting. Each of the arguments will be addressed in turn. a. Composition of June 2, 2021 CSE The parents assert that the June 2, 2021 CSE meeting was not validly constituted because it failed to include a qualified district representative, i.e., the CSE Chairperson. More specifically, the parents assert that the District’s Director of Pupil Personnel Services should not have served as the chairperson of the June 2, 2021 meeting due to alleged “past violative conduct committed against [the student]” (Ex. P-B at 1).
The IDEA requires a school district to ensure that an IEP team for a child with a disability include a district representative who: (i) is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities; (ii) is knowledgeable about the general education curriculum; and (iii) is knowledgeable about the availability of district resources. See 20 U.S.C. § 1414(d)(1)(B); 34 C.F.R. § 300.321(a)(4). New York State has a similar requirement. See N.Y. Educ. Law § 4402(1)(b). The district representative should have the authority to commit school district resources and be able to ensure that the school district can implement the IEP shortly after the meeting. See 71 Fed. Reg. 46,670 (2006). The IDEA leaves it up to the school district to designate the specific staff member to serve as its representative, provided the individual it selects meets the above three requirements. According to various Office of Special Education Programs pronouncements, those people may include school psychologists and guidance counselors. See Letter to Cormany, 34 IDELR 9 (OSEP 2000); Letter to Holloway, 33 IDELR 101 (OSEP 1999).
There is no evidence contained in the hearing record to suggest that the District’s Director of Pupil Personnel Services lacked the necessary qualifications to serve as the district representative (or chairperson) of the June 2, 2021 CSE meeting. The parents’ argument to the contrary is based on her “forwarding a clandestine, subversive, and threatening letter to one of [the student’s] CSE members, namely [the Private Consultant]” (Ex. P-C at ¶ 55), which I take to mean the March 5, 2021 letter from the District’s Director of Pupil Personnel Services to the Private Consultant which triggered IHRS (Ex. SD-2 ex. B). The contents of that letter (discussed above) represent an insufficient basis for me to conclude that the District’s Director of Pupil Personnel Services intended to deny the parents an adequate opportunity to meaningfully participate in the June 2, 2021 CSE meeting. b. Presence of District’s Legal Counsel at June 2, 2021 CSE Meeting The parents assert that the presence of the District’s legal counsel at the June 2, 2021 CSE meeting “negatively impacted the CSE’s collaborative process” and that counsel’s refusal to leave the meeting forced them to leave the CSE meeting (Ex. P-B at 2).
The Commissioner of Education has held that “school district attorneys are not precluded from attending IEP conferences as a matter of law,” but has cautioned “that school attorneys be invited to CSE meetings only on those rare occasions when the committee’s ability to perform its functions depends upon the immediate resolution of critical legal issues.” Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 286 (1991); see Appeal of a Student with a Disability (Commack Union Free Sch. Dist.), 36 Ed. Dept. Rep., Decision No. 13,686 (Oct. 7, 1996). “The school attorney may not be used as a ‘listening post’ for the board of education, nor may the district’s lawyer attend CSE meetings for the purpose of intimidating parents or undermining the decision-making process.” See id.
Likewise, the State Review Officer has noted that “there may be occasions when it is entirely appropriate for a school district attorney to be present at an IEP meeting, such as when there has been a legal ruling involving the child and the CSE and parent would benefit from having the attorney explain the ruling,” see Application of a Child with a Disability (Greene Cent. Sch. Dist.), Appeal No. 02-009 (SRO Jan. 9, 2003), but cautioned that that presence of a school district attorney at an IEP meeting “could contribute to an adversarial atmosphere,” see id. (noting that “the official interpretation of the federal regulations implementing the Individuals with Disabilities Act (IDEA) recognizes such a possibility, and counsels against attorney attendance at CSE meetings (34 C.F.R. Part 300, Appendix A, Question 29)”.
Given the history of repeated litigation between the parents and the District (as noted above) and presence of an ongoing impartial hearing before the undersigned in IHRS Case No. 549825, I find that it was not unreasonable for the District’s legal counsel to attend the June 2, 2021 CSE meeting. The parents have not cited any specific examples of intimidating conduct by the District’s legal counsel which could have contributed to an adversarial atmosphere, undermined the decision making process, or necessitated their exit from the June 2, 2021 CSE meeting. c. Absence of Stenographer from June 2, 2021 CSE Meeting The parents assert that the District’s refusal to arrange for a stenographer to transcribe the June 2, 2021 CSE meeting precluded their ability to meaningfully participate in the meeting (Ex. P-B at 2).
The IDEA does not address whether a school district or a parent can record an IEP meeting. See Letter to Anonymous, 40 IDELR 70 (OSEP 2003). Generally, a school district has the option to require, prohibit, limit, or otherwise regulate the use of recording devices at IEP meetings. See id.
State educational agencies in other states have held that, under the IDEA, a school district is not required to make a verbatim recording of an IEP meeting, see Jefferson County Sch. Dist. R-1, 104 LRP 20613 (SEA CO Apr. 13, 2004), nor does it require that a school district prepare minutes of IEP meetings, see Grapevine-Colleyville Indep. Sch. Dist., 21 IDELR 875 (SEA TX Aug. 18, 1994). However, the IDEA permits parents to audio record meetings in cases where it will help them understand the program and participate meaningfully in the process. See E.H. v. Tirozzi, 735 F. Supp. 53, 59 (D. Conn. 1990).
In New York, State Review Officers and the Commissioner of Education have both held that school districts must, with certain exceptions, permit a parent to audio tape a CSE meeting regarding the parent's child. See, e.g., Application of a Child with a Disability (Arlington Cent. Sch. Dist.), Appeal No. 05-051 (SRO July 5, 2005); Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep., Decision No. 12,425 (Nov. 21, 1990). The Commissioner of Education has also held that parents may bring a stenographer to a CSE meeting as an aid for understanding CSE proceedings. See Appeal of a Child with a Handicapping Condition, 31 Ed. Dept. Rep., Decision No. 12,710 (Jun. 5, 1992).
While the parents assert that they required a verbatim transcript of the June 2, 2021 meeting to correct “Prior Written Notice (PWN) narratives... that are entirely unilateral” (Exs. P-B at 2, P-C at ¶ 58), the evidence contained in the hearing record demonstrates that the District did not prevent the parents from either audio-recording the meeting or brining their own stenographer to transcribe the meeting (SD-4 at ¶ 65). While the District may have arranged for a stenographer to transcribe past CSE meetings involving this student (Ex. P-C at ¶ 57), the District informed the parents prior the June 2, 2021 meeting that it did not intend to secure a stenographer for that meeting (Exs. P-C at ¶ 50, SD-5 at ¶ 60) allowing them the opportunity to make arrangements to either record the meeting or arrange for its transcription. I therefore find that the absence of a stenographer to transcribe the June 2, 2021 CSE meeting did not preclude the parents’ ability to meaningfully participate in the meeting. d. Forty-Five Minute Time Limit to June 2, 2021 CSE Meeting The parents assert that the District’s allocation of only forty-five minutes for the June 2, 2021 CSE meeting precluded their ability to meaningfully participate in the meeting (Ex. P-B at 3). According to the June 2, 2021 Prior Written Notice, the agenda for the meeting was to review the results of a physical therapy evaluation conducted in January 2021 (Ex. SD-4 ex. B). Given the limited agenda for the June 2, 2021 CSE meeting, I find the CSE’s allocation of forty-five minutes to complete the meeting to be adequate and not unreasonable.
Alternatively, while the parents assert that the District’s Director of Pupil Personnel Services refused their request to adjourn the meeting to another day when more time could be allocated for the meeting (Ex. P-B at 3), there is no allegation or evidence that the CSE refused schedule additional meeting time should it not complete its stated agenda within the forty-five-minute time frame. The parents’ argument that they were denied the ability to meaningfully participate in the June 2, 2021 CSE meeting because of the forty-five-minute time allocation is without merit. e. Conclusion
Based on the analysis set forth above, I find that the parents were not denied an adequate opportunity to meaningfully participate in the June 2, 2021 CSE meeting because of the presence of the District’s Director of Pupil Personnel Services and/or the District’s legal counsel at the meeting. Likewise, I find that the parents were not denied an adequate opportunity to meaningfully participate in the June 2, 2021 meeting based on the CSE’s allocation of forty-five minutes to complete the meeting’s limited agenda or based on the absence of a stenographer to transcribe the meeting. Given these findings, the District’s motion to dismiss the parents’ predetermination claims as a matter of law is granted.
3. Mootness – IHRS Case No. 552467 The District has also moved to dismiss the parents’ complaint in IHRS Case No. 552467 on the basis that the parents’ allegations regarding “physical therapy related services” (Ex. P-B at 3) are moot.
It is well settled that the 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); Toth v. City of New York Dep’t of Educ., 720 Fed. App’x 48, 51 (2d Cir. Jan. 2, 2018); F.O. v. New York City Dep’t of Educ., 899 F. Supp. 2d 251, 254 (S.D.N.Y. 2012; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 (W.D.N.Y. 2008); Student X v. New York City Dep’t of Educ., 2008 WL 2890440, at *12 (E.D.N.Y. Oct. 30, 2018); J.N. v. Depew Union Free Sch. Dist., 2008 WL 4501940, at *3*4 (W.D.N.Y. Sept. 30, 2008); see also Chenier v. Richard W., 82 N.Y.2d 830, 832 (1993); Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714 (1980). Mootness may be raised at any stage of litigation. See In re Kurtzman, 194 F.3d 54, 58 (2d Cir. 1999). A case becomes moot when the parties lack a legally cognizable interest in the outcome. See Murphy v. Hunt, 455 U.S. 478, 481 (1982). In determining whether a controversy has become moot, the relevant inquiry is whether the facts alleged, under all circumstances, show that there is a substantial controversy of sufficient immediacy and reality to warrant relief. See Christopher P. v. Marcus, 915 F.2d 794, 802 (2d Cir. 1990).
Administrative decisions rendered in cases that concern such issues that arise out of school years 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); M.S. v. New York City Dept. of Educ., 734 F. Supp. 2d 271, 28081 (E.D.N.Y. 2010). 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., V.M. v. N. Colonie Cent. Sch. Dist., 954 F. Supp. 2d 102, 119-21 (N.D.N.Y. 2013); M.S. v. New York City Dep't of Educ., 734 F. Supp. 2d 271, 280-81 (E.D.N.Y. 2010); Patskin, 583 F. Supp. 2d at 428-29; J.N., 2008 WL 4501940, at *3-*4.
Many of the parents’ allegations concerning changes to “physical therapy related services” in the student’s IEP, made “upon information and belief” (Ex. P-B at 3 ¶¶ 3(e)-(j)), have been disproven by the June 2, 2021 Prior Written Notice, which states that “no change in service or recommendation were proposed at the CSE meeting” (Ex. SD-4 ex. B at 2). Absent a change in the student’s IEP, there is no real or live dispute to adjudicate. Similarly, the student’s pendency interests (Ex. P-B at 3 ¶ 3(k)), see 20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a); N.Y. Educ. Law § 4404(4); 8 NYCRR § 200.5(m), are not triggered where, as here, there has been no change in placement (Exs. SD-4 exs. B, C). Lastly, while the parents assert that they “were barred from meaningfully discussing [the student’s] present levels of performance (PLEPS) – relative to his physical therapy related services” (Ex. P-B at 3 ¶ 3(e)), the evidence is clear that they were not “barred” from such discussion, but instead, they voluntarily chose to exit the June 2, 2021 (virtual) meeting (Ex. SD-5 at ¶ 68). Based on this evidentiary record, I find the parents’ claims concerning physical therapy goals and related services to be moot.
VII. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS
HEREBY ORDERED THAT:
The District’s motion to dismiss the parents’ complaint in IHRS as insufficient is GRANTED and the complaint is hereby DISMISSED; and The District’s motion to dismiss the parents’ complaint in IHRS Case No. 552467 for failing to state and claim and as moot is GRANTED and the complaint is hereby DISMISSED.
Dated: August 13, 2021
/s/ Jeffrey J. Schiro
Jeffrey J. Schiro, Esq.
Impartial Hearing Officer
PLEASE TAKE NOTICE
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 plan 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.
DOCUMENTATION ENTERED INTO THE HEARING RECORD
PARENT
A. Due Process Complaint (IHRS ), 6/2/21, 2 pgs.
B. Due Process Complaint (IHRS Case No. 552467), 6/3/21, 4 pgs.
C. Verified Response in opposition to Motion to Dismiss (IHRS Case Nos. 552467 & 552466), 6/30/21, 23 pgs.
SCHOOL DISTRICT
1. Combined Answer & Motion to Dismiss (IHRS ), 6/12/21, 18 pgs.
2. Supporting Affirmation (IHRS ), 6/12/21, 17 pgs.
Ex. A - Due Process Complaint (IHRS ), 6/2/21, 2 pgs.
Ex. B – Letter to [REDACTED] from [REDACTED], 3/5/21, 2 pgs.
Ex. C – Email to [REDACTED] from [REDACTED], 3/8/21, 2 pgs.
Ex. D – Verified Complaint (Index # CV-21-3264) E.D.N.Y., 6/9/21, 12 pgs.
3. Combined Answer & Motion to Dismiss (IHRS Case No. 552467), 6/16/21, 25 pgs.
Ex. A – Petition to State Education Department, 6/8/21, 12 pgs.
4. Supporting Affirmation (IHRS Case No. 552467), 6/16/21, 19 pgs.
Ex. A - Due Process Complaint (IHRS Case No. 552467), 6/3/21, 4 pgs.
Ex. B – Prior Written Notice, 6/2/21, 3 pgs.
Ex. C – Individualized Education Program (IEP), 6/2/21, 19 pgs.
5. Reply Affirmation (IHRS Case Nos. 552467 & 552466), 7/26/21, 19 pgs.
Ex. A – Email from [REDACTED], undated, 4 pgs.
IMPARTIAL HEARING OFFICER
I. Letter to parties from IHO Jeffrey J. Schiro, 6/16/21, 6 pgs.
II. Letter to parties from IHO Jeffrey J. Schiro, 6/22/21, 6 pgs.
III. Order on Consolidation (IHRS Case Nos. 552467 & 552466), 6/30/21, 5 pgs.
Footnotes
[1] References to the transcript of the pre-hearing conference are noted as “Tr.” References to exhibits admitted into the hearing record as evidence are noted as “Ex.” References to exhibits within exhibits are noted as “ex.”
[2] Intellectual disability means significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period, that adversely affects a student’s educational performance. 8 NYCRR § 200.1(zz)(7).
[3] See Application of a Student with a Disability, Appeal No. 21-019; Application of a Student with a Disability, Appeal No. 20-135; Application of a Student with a Disability, Appeal No. 19-121; Application of a Student with a Disability, Appeal No. 19-021; Application of a Student with a Disability, Appeal No. 18-110; Application of a Student with a Disability, Appeal No. 18-075; Application of a Student with a Disability, Appeal No. 18-064; Application of a Student with a Disability, Appeal No. 17-079; Application of a Student with a Disability, Appeal No. 17-015; Application of a Student with a Disability, Appeal No. 16-040.
[4] According to a June 2, 2021 prior written notice, the District requested the parent’s availability to participate in a CSE meeting to review the completed physical therapy evaluation in letters sent to the parents on March 5, 2021, March 15, 2021, March 26, 2021, April 12, 2021 and April 29, 2021. A meeting was scheduled for May 6, 2021, but later postponed to June 2, 2021, based on the physical therapist’s availability (Ex. SD-4 ex. B at 2).
[5] The term “free appropriate public education” means 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 school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.