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ORDER OF DISMISSAL
Case No.: 266641 /620162
Student’s Name: [REDACTED]
(hereinafter referred to as “Student”)
Date of Birth: [REDACTED]
District: [REDACTED]
Hearing Request by: Parent
(hereinafter referred to as “Parent”)
Hearing Dates: 1/22/24 2/7/24; 4/11/24; 5/20/24; 6/5/24; 6/11/24
Hearing Officer: David R. Gronbach, Esq.
Date of Decision: July 29, 2024
Hearing Officer’s Order of Dismissal
ISSUES
This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parents’ Due Process Complaint (“DPC”) dated 12/11/23 for the 2023/24 school year.
PROCEDURAL FACTS
The undersigned Hearing Officer was appointed to the above matter on 12/11/23. Pendency Hearings were held on 1/22/24 and 2/7/24. Parent representative did not appear. A Status Conference was held on 3/12/24 at which time Parent representative did not appear and a hearing was scheduled for 4/11/24. At the April 11th Hearing, Parent representative appeared and requested hearing dates, scheduled for 5/20/24 for openings and evidence and 6/5/24 for witnesses. Parent representative did not appear at the 5/20/24 hearing and District’s evidence was admitted into the record. Parent representative did not appear at the June 5th hearing and District renewed the motion to dismiss with prejudice for failure to prosecute. (T.pg.38-40).
After that hearing on June 5th, the undersigned IHO sent an email to the Parent advocate stating the District’s motion to dismiss would be granted. The Parent Advocate responded that she couldn't appear on June 5th due to a family emergency and asked that it not be dismissed. The Hearing was re-scheduled for June 11, 2024 at 12:30 PM. The Parent Advocate agreed with that date and time. (T.pg.38-40).
At the June 11th Hearing, Parent Advocate did not call in or email. The IHO sent an email to the Parent's advocate indicating that we were on the record, we were on the line and waiting for her to call in. There was no response. The IHO indicated District’s motion would be granted with decision to follow. (T.pg.38-40). Thus, I am issuing this Order of Dismissal, with prejudice, for Parent’s failure to appear and prosecute the 12/11/23 DPC.
LEGAL FRAMEWORK
The Individuals with Disability Education Act (“IDEA”) is comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.” Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982). In order to demonstrate that FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.” See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206. The student's recommended program must also be provided in the least restrictive environment with non-disabled peers. See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998).
Two purposes of the IDEA (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 (20 U.S.C. § 1400[d][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Rowley, at 206-07).
A parent or school district may file a due process complaint with respect to 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).
As set forth in SRO-22-054, state regulations set forth the procedures for conducting an impartial hearing and address, in part, minimal process requirements that shall be afforded to both parties (8 NYCRR 200.5[j]). Among other process rights, each party shall have an opportunity to present evidence, compel the attendance of witnesses, and to confront and question all witnesses (8 NYCRR 200.5[j][3][xii]). Furthermore, each party "shall have up to one day to present its case" (8 NYCRR 200.5[j][3][xiii]). State regulation further provides that the IHO "shall exclude any evidence" that he or she determines to be irrelevant, immaterial, unreliable, or unduly repetitious" and "may limit examination of a witness by either party whose testimony the impartial hearing officer determines to be irrelevant, immaterial or unduly repetitious" (8 NYCRR 200.5[j][3][xii][c], [d]). State regulation further provides that parties to the proceeding may be accompanied and advised by legal counsel and by individuals with special knowledge or training with respect to the problems of students with disabilities, that an IHO may assist an unrepresented party by providing information relating only to the hearing process, and that nothing contained in the cited State regulation shall be construed to impair or limit the authority of an IHO to ask questions of counsel or witnesses for the purpose of clarification or completeness of the record (see 8 NYCRR 200.5[j][3][vii]).
Generally, unless specifically prohibited by regulation, IHOs are provided with broad discretion, subject to administrative and judicial review procedures, in how they conduct an impartial hearing, so long as they "accord each party a meaningful opportunity" to exercise their rights during the impartial hearing (Letter to Anonymous, 23 IDELR 1073 [OSEP 1995]; see Impartial Due Process Hearing, 71 Fed. Reg. 46,704 [Aug. 14, 2006] [indicating that IHOs should be granted discretion to conduct hearings in accordance with standard legal practice, so long as they do not interfere with a party's right to a timely due process hearing]). Also, as a general matter, the parties to an impartial hearing are obligated to comply with the reasonable directives of the IHO regarding the conduct of the impartial hearing (see Application of a Student with a Disability, Appeal No. 14-090; Application of a Student with a Disability, Appeal No. 09-073; Application of a Child with a Disability, Appeal No. 05-026; Application of a Child with a Disability, Appeal No. 04-103; Application of a Child with a Disability, Appeal No. 04-061).
A dismissal with prejudice based on a party’s failure to comply with the directive of an IHO should generally be reserved for extreme cases (see Edward S. v. W. Noble School Corp., 2014 WL 1319358, at *8, *12 [N.D. Ind. Mar. 31, 2014] ["Dismissal is a harsh sanction, especially when the issue is the fair and appropriate education of a child with disabilities"]; Nickerson-Reti v. Lexington Pub. Sch., 893 F. Supp. 2d 276, 293-94 [D. Mass. 2012]). In upholding a dismissal with prejudice, SROs have considered whether there was adequate notice to the party at risk for dismissal and whether the party engaged in a pattern of conduct or in conduct so egregious as to warrant the maximum sanction of dismissal of the due process complaint notice with prejudice (see, e.g., Application of a Student with a Disability, Appeal No. 20-137; Application of a Student with a Disability, Appeal No. 20-009; Application of a Student with a Disability, Appeal No. 20-008; Application of a Student with a Disability, Appeal No. 18-111).
In the judicial context, when reviewing whether a dismissal for failure to prosecute was an abuse of discretion, courts review five factors prescribed by the Second Circuit: "[1] the duration of the plaintiff's failures, [2] whether plaintiff had received notice that further delays would result in dismissal, [3] whether the defendant is likely to be prejudiced by further delay, [4] whether the . . . judge has take[n] care to strik[e] the balance between alleviating court calendar congestion and protecting a party's right to due process and a fair chance to be heard . . . and [5] whether the judge has adequately assessed the efficacy of lesser sanctions" (LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 [2d Cir. 2001]; Harding v. Fed. Reserve Bank of New York, 707 F.2d 46, 50 [2d Cir. 1983]). Although the Second Circuit's factors are not directly applicable to hearings in this administrative setting, consideration of the principals is helpful.
Having filed the 12/11/23 DPC and failed to appear at three consecutive hearings dates to indicate an intention to pursue the claims in the DPC, the DPC will be dismissed with prejudice. The District was prepared to present its case and admitted exhibits into the record. Thus, dismissal with prejudice is appropriate.
ORDER
- ORDER THAT, the Parent’s due process complaint dated 12/11/23, is dismissed with prejudice.
SO ORDERED,
DATED: July 29, 2024
David R. Gronbach
David R. Gronbach, Impartial Hearing Officer
Hearing Officer’s Order of Dismissal
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.
Hearing Officer’s Order of Dismissal
District Exhibits
1 | IEP | 05/11/2023 | 23 |
2 | Prior Written Notice | 08/04/2023 | 4 |
3 | School Location Letter | 08/04/2023 | 2 |
4 | Counseling Progress Report | 01/31/2023 | 2 |
5 | Occupational Therapy Progress Report | 01/31/2023 | 2 |
6 | Teacher Report | 01/31/2023 | 2 |
7 | Psychoeducational Assessment | 12/17/2018 | 7 |
Parent Exhibits
N/A