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FINDINGS OF FACT AND DECISION
Case Number: 155620
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: April 26, 2017
June 20, 2017
February 1, 2018
Actual Record Closed Date: March 2, 2018
Hearing Officer: Barbara Ebenstein, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 26, 2017
Attorney — Student
Student
Student
Student
Witness (Via Telephone) — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 20, 2017
Attorney (Via Telephone) — Student
Student
Student
Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 1, 2018
Attorney — Student
Student
Student
District Representative — DOE
This is New York City . On February 1, 2018, I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. Section 1415(f)(3), regarding the special education of , a Former Student, at the New York City Department of Education Impartial Hearing Office at 131 Livingston Street, Brooklyn, New York. , District Representative, represented the New York City Department of Education (DOE), and of represented the Former Student. A list of witnesses who testified and documents received into evidence is attached to this decision.
ISSUES P ESENTED
1. Whether the Former Student has standing to bring this impartial hearing on his own behalf.
2. Whether the DOE failed to appropriately evaluate and identify the needs of the Former Student.
3. Whether the DOE provided appropriate IEPs and educational programs to the Former
Student.
4. Whether the DOE “forced” the Former Student to graduate when he did not make educational progress and did not receive appropriate services.
5. Whether the DOE failed to provide the Former Student with a FAPE. The complaint does not clearly state the years for adenial of FAPE is alleged. It states:
“Based upon the foregoing, the DOE failed to provide the appropriate free public education to which is entitled and its failure continued for a period of years. At the very least, . . . that the IEPs the DOE developed for for the 2012-2013 school year and the 2013-2014 school year were inadequate and not reasonably calculated to provide a meaningful education benefit.” (Ex. O at 7)
P OCEDU AL HISTO Y
The Former Student filed an impartial hearing complaint on his own behalf through his attorney on May 29, 2015.[1] (Ex. O) At the time, he was a
.
In an opening statement, counsel for the Former Student requested the following relief:
“A finding that the above noted failings
and violations deprive of a free
appropriate public education under the IDEA.
A finding that the above noted violations
significantly impeded 's opportunity to participate in the decision-making process regarding the provision of a FAPE and caused the deprivation of educational benefits.
A finding that the DOE did not properly
implement 's IEP and did not provide
with the supports and services to which he was entitled in order that be provided with compensatory education as a result of the DOE's failure to provide an appropriate educational program to during the 2012/2013 school year and the 2013/2014 school year.
An order that be provided
services in the amount of to be provided by for the failure to provide an appropriate program for the commencement of the '11/'12,
12/'13, and '13/'14 school years.
An order reimbursing
for the cost of and for
An order providing
as warranted by evidence for the failure to provide an appropriate program during the litigation of this matter.
.[2]
Reimbursement for all costs incurred by and his family in their efforts to secure a free and appropriate public education for including, but not limited to, the cost of any evaluations funded by and/or his family, a full re-evaluation at DOE's expense by the orocher acceptable
Independent entity, reimbursement for the costs of 's recent evaluations by the , additional supports . . . .
Additional supports and services over and above any hours provided by and in conjunction with services provided by to compensate for the DOE's failure to provide with a free and appropriate public education, and payment of attorney's fees and expenses.” (Tr. 75-7)
An impartial hearing officer initially heard this case over a period of two days on April 26, 2017 and June 20, 2017. He discussed the fact that it took two years for this matter to be heard in the original impartial hearing:
HEARING OFFICER WALSH: . . . do you have any idea,
Ms. , why this case has taken so long to get to hearing?
Was it under settlement for alot of times; do you know?
MS. : I know that there were some
issues -- after I joined the firm, which was on September 20th, 2016, I know that after that time, there were issues due to illness and witness availability for which it was rescheduled. I do not know why it was rescheduled prior to that date.
HEARING OFFICER WALSH: Okay. Because l
know there is in the claim filed by the student a statement as to the urgency of getting the matter resolved. So it seems funny, in spite of that statement of urgency, that we're here almost two years later finally getting the student his hearing.
Nevertheless, I will take that . . . “
(Tr. 18-9)
The SRO found no adequate explanation for this delay in the hearing record. (Ex. X SRO FN1, page 3)
The previous impartial hearing officer issued a decision finding that the former
Student did not have standing to bring this impartial hearing. The former Student appealed to the State Review Office. The State Review Office issued its decision,
Appeal No. 17-077, on November 15, 2017 remanding the case to the impartial hearing officer “to develop the hearing record on the issue of standing and to decide whether a determination on the merits is warranted.” (Ex. X SRO decision at 8) The initial impartial hearing officer recused himself from this case on remand. On December 29, 2017, I was appointed impartial hearing officer to hear this remanded case.
Although the previous impartial hearing officer found that the Former Student had no standing, he also heard the case in chief over a period of two days. I have now reviewed the record in the previous hearing, and I have heard an additional day of testimony on both the issue of standing and the case in chief. I offered both parties an opportunity to present any additional documentary evidence and testimony they needed to complete their case. The Former Student did admit a number of additional documents, including two orders of protection. (Ex. S, T)
It is now two years and nine months since the Former Student first filed his impartial hearing complaint, and there has been no decision on the merits of the case.
Therefore, as a matter of equity and judicial economy, I will issue my final decision addressing both standing and the underlying case in chief.
FINDINGS OF FACT
is a Former Student who in June 2014.
(Tr. 32) He was on May 29, 2015 when he filed this impartial hearing complaint on his own behalf. The complaint alleges a denial of a “free and appropriate public education” (FAPE) during the 2012 – 2013 and 2013 – 2014 school years but seeks compensatory education for the 2011 – 2012, 2012 – 2013, and 2013 – 2014 school years. (Ex. O at 7) There is little, if any, mention of the 2011 – 2012 school year in the hearing record. (Tr. 279, Ex. Y Brief at 5-6)
has a disability that the CSE classified as “ .” The DOE conducted a evaluation on May 28, 2014.
(Ex. K) On a , scored:
(Ex. K at 5)
. (Ex. K at 1) His academic skills were assessed with a
.
. (Ex. K at 5)
When was young, his Mother, , was his primary caregiver. (Tr.
162) attended a series of approved non-public special education schools. He attended the until he aged out of it, and he still lived with his Mother. (Tr.
302) Then, he attended the and continued to live with his Mother. (Tr.
302) ’s older brother, , thought that there wasn’t any special education program there although he acknowledged that it is a special needs school and that he did not have any proof of that “until after the fact.” (Tr. 167-8)
’s Mother had a very close relationship with Mr. ’s partner, from late 2006 until the end of 2013. (Tr. 325) Mr. , was instrumental in selecting the for . (Tr. 167) He testified, “I was actually the one who helped his mother get him into in the beginning,” and he wrote a letter requesting a transfer to the that the Mother signed. (Tr. 319, 322) He accompanied
’s Mother to visit the . (Tr. 319, 321-2) The Mother attended two parent-teacher conferences, and she participated in a CSE meeting by phone. (Tr. 319)
The July 16, 2013 IEP places in a New York State approved non-public school in a with . (Ex. 1 at 8) The is a New York State approved special education non-public school. (Tr. 28) The School has classes that follow
. (Tr. 58) The IEP July
16, 2013 provides
. (Ex. 1 at 10)
Testimony indicates that graduated from the with a . (Tr. 29, 36, 168, 189) However, documentary evidence establishes that graduated with a . (Ex. H at 1; Ex. 10, Ex. 11, Ex. 12 at 1)
. (Tr. 107-8, 235-6, 273-4, 293-5)
. (Tr. 294-5)
. (Ex. 10 at 5)
. (Ex. 10 at
4) .
(Ex. 10 at 3)
. (Ex. 10 at 2)
.
(Ex. 10 at 1) At some time, his brother requested to see and did not see them, but it does not appear that he helped appeal his score. (Tr.
222) I find that earned a by
, as a matter of fact.
continued to live with his Mother while he attended the .
His July 16, 2013 IEP reports his “
.” (Ex. 1 at 2, Ex. I at 2) Two months later in September 2013 when he was . moved out of his Mother’s home to move in with . (Tr. 302-4, 325) His Mother was angry about it. (Tr. 326-7) Mr. testified:
“And at the time, he was still in
. His brother and I were getting
involved in his education at that point, because nobody had been, and the school, Ms. , the at had informed us that even though at that point and not living with his mother, that because she was the parent, everything had to go through her.” (Tr. 317)
Ms. suggested an order of protection. (Id.)
On April 17, 2014, obtained an ex parte temporary restraining order against his Mother, and it was in effect up to and including June 2, 2014. (Ex. S at 1) His
Mother appeared in court with an attorney on June 2, 2014 when obtained another restraining order that lasted until and including December 3, 2014. (Ex. T at 1; Tr. 324-5) On May 29, 2015 when filed the impartial hearing complaint in this matter, both orders of protection had expired. The Mother was not in jail, not institution lized, nd she lived in .[3] (Tr. 211)
. (Tr. 310)
“
.”
(Ex. M at 3)
Furthermore, Mr. testified that the Mother has no diagnosed disability he knows of.
(Tr. 249) I find that the Mother did not desert or abandon as a matter of fact.
Rather, he left her home.
’s Father, , lives in . Although he has not been involved with ’s education, continued making child support payments to ’s Mother even after moved out of her home and until was . (Tr. 308-9, 332, 334-5) saw him occasionally when he visited his grandmother. (Tr. 308-9) Even now, still sees his Father occasionally. He saw his Father at Thanksgiving or Christmas 2016, and at his grandmother’s funeral in December 2017. (Tr. 328)
On May 29, 2015, was not in jail, not mentally ill, and not institutionalized. (Tr. 308-9, 328) He lived in New York State.[4] His continuing child support payments establish that he did not desert or abandon .
. (Tr. 305)
. (Tr. 305-6, 331-2) .
(Id.)
does not have a guardian. In an opening statement, the attorney for the Former Student admitted:
“No one petitioned for guardianship of .
Furthermore, a petition for guardianship over would likely not succeed due to his abilities. Furthermore, with a 17A Guardianship, would lose all of his rights and independence, something that he is interested in maintaining. does not lack capacity which is required for Article 81 Guardianships.” (Tr. 278)
Additionally, the Brother testified:
MS. : Okay. Does have a legal guardian?
MR. : No.
MS. : Okay. Did maintain
all of his legal rights when he turned 18?
MR. : Yes.
MS. : Okay. Does have any living parents at the time -- at this time?
MR. : Yes.
MS. : Where are they?
MR. : My father lives in
, and my mother lives in, I believe -- what
is it? What is that town? ..
(Tr. 210-11)
After , underwent a series of private evaluations.
On July 2, 2014, he had an Evaluation at
. (Ex. J) They concluded that
. (Ex. J at 6) This evaluation made a number of school-based recommendations even though had already graduated from . These recommendations include:
. (Id.)
assessed on July 5, 2014. (Ex. G) The testing found
. This score confirms the on the July 16, 2013 IEP. (Ex. R at 14) did not give an overall rating for his . Even so, suggested a total of
. (Ex. B at 1)
Also in July 2014, conducted a
Evaluation that concluded that the Former Student’s performance on the demonstrated . (Ex. L at 6, 10) On , he sored in the . (Ex. L at 6) He also displayed . (Ex. L at 10) The evaluation suggests . (Id.)
(Ex. L at 6)
One year later in July to September 2015, the Evaluation repeated some of the .
(Ex. M at 7)
.
In 2015, underwent the evaluation. (Ex. M) This evaluation states:
“
.” (Ex. M at 17)
The hearing record does not indicate whether this serious issue is being addressed.
There were four witnesses in the original impartial hearing, and two of them also testified in the remanded case on February 1, 2018.
DOE Witness #1:
Ms. , the at the
, testified in the original hearing. She worked with on beginning in the fall of 2012. (Tr. 28, 45) Although the believes that , his personal goals were
. (Tr. 63, 34)
“
.” (Tr. 34)
5
registered with , and Ms. believed that he was going to register at after . (Tr. 37)
During the two years Ms. worked with , she spoke with his Mother by telephone once, and she met his brother, , at two CSE meetings. (Tr. 55)
Former Student Witness #1
’s brother , who is years older than him, testified on behalf of the Former Student in the initial impartial hearing. (Tr. 154) testified that he lives in . (Tr. 150) is not ’s guardian.
MS. : What is your relationship to the petitioner?
MR. : I'm his brother.
MS. : Okay. Are you his legal guardian?
MR. : No.
M.S. : Does he have a legal guardian?
MR. : To the best of my
knowledge, no.
M.S. : Okay. To your knowledge, are there any limitations on his legal rights that you know of?
MR. : No” (Tr. 152).
did not become involved in ’s educational decisions, school meetings, and paperwork until the “later part of his year.”[6] (Tr. 156)
MR. : He was graduating, and at the time there was no one attending his IEP meeting and I made myself go there to see what it was because wasn't exactly very confident in the fact that he was graduating and I remembered in seeing some of the coursework that he was doing, I didn't think it was appropriate for him, and that's when we discovered that it really wasn't, and I had my sneaking suspicions, and I wanted to delay his graduation to give him more time. (Tr. 156)
At the time, ’s Mother believed that he was doing fine in school.
“I raised this concern, of course, but my
mother was under the -- under the impression that he's doing fine. Everything was fine.” (Tr. 164)
first expressed his concerns at ’s meeting and requested on . (Tr. 188) He is concerned that
. (Tr. 189)
Former Student Witness #2
testified on his own behalf in the original hearing and in the remand.
Although the former Student himself testified that he lives in , another witness testified that he lives with an aunt in . (Tr. 228, 252)
testified that
. (Tr. 235-7)
. (Tr. 238-9)
. (Tr. 294-5)
Former Student Witness #3
Mr. , ’s partner, testified for the former Student in both the original hearing and the remand. He agreed that does not have a guardian. (Tr. 246)
Mr. stated that he was instrumental in getting out of the and into the , although Mr. never visited the . (Tr.
247-8) He attended two parent-teacher conferences at the with ’s
Mother. (Tr. 248-9) Mr. testified that he had a close relationship with ’s
Mother at the time, and that . (Tr. 166, 249,
325) But she did not have a disability herself. (Tr. 249) Mr. believes that ’s
Mother only attended some of the CSE meetings and parent-teacher conferences because she did not what was going on in the meetings, and she was scared to go. (Tr. 250)
CONCLUSIONS OF LAW
STANDING
The Former Student claims that he has standing to bring this impartial hearing on his own behalf because “he was essentially abandoned by his mother because she failed to care for him, failed to advocate for him as a student with a disability and did not protect his best interests.” (Ex. Y Brief at 1) He considers himself an “emancipated adult student.” (Tr. 278)
What constitutes emancipation in the State of New York “is a question of law although whether there has been an emancipation is a question of fact.” G ttleman v.
G ttleman, 81 A.D. 2d 632, 438 N.Y.S. 2d 130 (2d Dept. 1981) A minor is considered emancipated if (1) he is married; Bach v. Long Island Jew sh Hosp tal, 49 Misc. 2d 207, 267 N.Y.S. 2d 289 (Sup. Ct. Nassau County 1966); (2) he is in the armed forces,
Zuckerman v. Zuckerman, 154 A.D. 2d 666, 546 N.Y.S. 2d 666 (2d Dept. 1989); (3) he is financially independent of his parents and he has established a home; Matter of Knoll v.
K lcher, 100 A.D. 2d 686, 473 N.Y.S. 2d 887 (3rd Dept. 1984), or (4) his parent has failed to fulfill parental support obligations and the minor seeks emancipation. G ttleman,
81 A.D. 2d 632, 438 N.Y.S. 2d 130. None of these factors exist in this case. When filed the impartial hearing complaint in this case, he was not married, he was not in the armed forces, his Father was still paying child support for him, and he lived with relatives. I find that was not an emancipated minor as a matter of fact.
The previous impartial hearing officer and the State Review Officer found that the former Student does not have standing to bring an impartial hearing on his own behalf.
Their analysis begins with a consideration of whether IDEA parental rights transfer to a student when he reaches the age of majority in New York State. The Former Student cites federal law and the Supremacy Clause of the United States Constitution to establish that IDEA rights transfer to the student with a disability who reaches the age of majority set by state law. But 20 U.S.C. Section 1415(m) and 34 CFR § 300.520 uses discretionary language to permit states to provide the transfer of rights to adult students rather than mandate it. New York State does not transfer rights to adult students. In the appeal of the original impartial hearing officer’s decision, the SRO noted:
“While the IDEA and federal regulations provide that a State may provide for the transfer of all rights accorded to parents under the IDEA to a former Student with a disability who has reached the age of majority under State law (20 U.S.C.
1415(m); 34 CFR 300.520), New York State law “does not grant a child who has reached the age of majority all rights previously granted to parents under IDEA.”
(internal citations omitted) (Ex. X at 4)
Therefore, the Former Student does not have standing to bring this impartial hearing in his own behalf based on a transfer of rights at the age of majority.
Then the SRO considered whether the former Student has standing under another theory. Federal and New York State statutes and regulations provide a list of possible
“parents” under the IDEA.
34 CFR Sec. 300.30
(a) Parent means--
(1) A biological or adoptive parent of a child;
(2) A foster parent, unless State law, regulations, or contractual obligations with a State or local entity prohibit a foster parent from acting as a parent;
(3) A guardian generally authorized to act as the child's parent, or authorized to make educational decisions for the child (but not the State if the child is a ward of the State);
(4) An individual acting in the place of a biological or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child lives, or an individual who is legally responsible for the child's welfare; or
(5) A surrogate parent who has been appointed in accordance with Sec. 300.519 or section 639(a)(5) of the Act.
New York Commissioner of Education Regulations Sec. 200.1(ii)
(1) Parent means a birth or adoptive parent, a legally appointed guardian generally authorized to act as the child’s parent or authorized to make educational decisions for the child; a person in parental relationship to the child as defined in Education Law, section 3212; an individual designated as a person in parental relation pursuant to title 15-A of the General Obligations Law including an individual so designated who is acting in the place of a birth or adoptive parent (including a grandparent, stepparent, or other relative with whom the child resides); or a surrogate parent who has been appointed in accordance with section 200.5(n) of this Part. The term does not include the State if the former
Student is a ward of the State.
(2) A foster parent may act as a parent unless State law, regulations or contractual obligations with a State or local entity prohibit the foster parent from acting as a parent.
The definition of ‘parent’ may be “broad,” but a student with a disability who has reached the age of majority is not included. (Ex. X SRO, FN 2 at 5) There is no law that gives an adult student standing to file an impartial hearing complaint on his own behalf.
The question is still whether anyone may be deemed a “parent” in this case.
When there are multiple individuals who qualify as the “parent,” the biological or adoptive parent must be presumed to be the parent unless they do not have authority to act on the child’s behalf. 34 CFR Sec. 300.30(b)(3), New York Commissioner of Education Regulations Sec. 200.1(II)(3) In this case, there have been a number of allegations about ’s Parents.
lived with his Mother for the first years of his life. She visited the as a potential placement for him. She signed a letter written by Mr.
to get him into the , and she spoke with Ms. by telephone once when he was attending the . She attended two parent-teacher conferences.
When turned and moved out of his Mother’s and into , their relationship deteriorated. His Mother attended court with an attorney when applied for a permanent order of protection against her.
obtained the orders of protection, but an order of protection is not a judicial decree or order that identifies a specific person or persons to act as “parent” or to make educational decisions for the student. Pursuant to New York State Commissioner of Education Regulation Section 200.1(II)(4), the Mother still had rights as a “parent”
Furthermore, the orders of protection expired prior to his filing this impartial hearing complaint.
There was testimony that , and that she was scared to attend school meetings. There was also testimony that the Mother believed that was doing well in school. These are not legal reasons to deem another person “parent” rather than the Mother.
I find that , ’s Mother, had standing to file this impartial hearing complaint on May 29, 2015.
Although ’s Father, , was not involved in his education, saw him when he visited his grandmother. (Tr. 309) The Father continued to provide financial child support payments for up until he turned even after he no longer lived with his Mother. (Tr. 332, 334-5) As was years old when he originally filed the impartial hearing complaint in this case, the Father was still providing child support payments for him.
I find that , ’s Father, had standing to file this impartial hearing complaint on May 29, 2015. As both parents had standing, their rights are superior to those of any other individual. Parents with authority to make educational decisions for a student may give written authority to a non-parent to make educational decisions for their child. In this case, ’s Parents could have appointed their son or his partner
Mr. oranyone else to act on their behalf in this impartial hearing
Assuming that ’s Parents are not qualified to act as parent, the SRO considered whether there is another person who qualifies as a person in a parental relation to the student as a custodian under New York Education Law Section 3212(1).
“. . . a person in parental relation to another individual shall include his father or mother, by birth or adoption, his step-father orstep-mother, his legally appointed guardian, or his custodian. A person shall be regarded as the custodian of Case No. 155620 another individual if he has assumed the charge and care of such individual because the parents or legally appointed guardian of such individual have died, are imprisoned, are mentally ill, or have been committed to an institution, or because, they have abandoned ordeserted such individual or are living outside the state or their whereabouts are unknown.”
The SRO questioned whether the , ’s older brother or Mr. or another person had become the student’s custodian under New York Education Law Section 3212 by assuming ‘the charge and care of {the student} because the parents . . . have died, are imprisoned, are mentally ill, or have been committed to an institution, or because, they have abandoned or deserted {the student) or are living outside the state or their whereabouts are unknown.’” The SRO found insufficient evidence in the record of this impartial hearing to make that determination and remanded the case for further proceedings. I have now reviewed additional documents and testimony to be able to make that determination.
’s older brother, , took ona number of the tasks of parenthood.
MR. : I'm the one that's
primarily dealing with all of his needs, when he has appointments that need to be made, whether it's doctors, I'm the one that has to deal with it.
Managing his finances, I'm the person who deals with that as well. (Tr. 155)
While this is laudable, it does not qualify the Brother as a “parent” under the law. The
SRO questioned whether the Brother, or anyone else, was a “custodian” for .
testified that he is not ’s guardian, and he has not applied to serve as his guardian. He may have been “acting in the place of a biological” parent in some ways, but was not living with him, and the Brother is not responsible for ’s welfare. 34 CFR Sec. 300.30(a)(4); New York Commissioner of Education Regulations
Sec. 200.1(ii) I find that ’s brother does not qualify as a “parent.”
I find that cannot have a custodian as his Parents are alive, they were not imprisoned, and they were not committed to an institution. I have already found that ’s Parents did not abandon or desert him as a matter of fact. They both live within the State of New York and their whereabouts were either known or easily knowable from other family members and the internet.
THE ME ITS OF THE CASE
Adults who graduate from and later allege that the school did not provide an appropriate or sufficient education bring educational malpractice cases even though they may be camouflaged as another cause of action. “At the outset, it should be stated that although plaintiff’s complaint does not expressly so state, his cause of action sounds in ‘educational malpractice.’” Hoffman v. Bd. of Educ., 49 N.Y.2d 121, 125
(1979) See also Rockwood v. Shoen, -- 2015 WL6774314 (S.D. Ohio, Nov. 6, 2015)
(“regardless of the label a plaintiff places on such a claim,” the former student’s claim “which targets allegedly substandard educational services” . . . “is actuality an impermissible claim for educational malpractice.”)
New York State does not recognize educational malpractice. In Donohue v.
Cop ague Un on Free School D str ct, 47 N.Y.2d 440, 418 N.Y.S.2d 375, 391 N.E.2d
1352 (1979), the New York Court of Appeals addressed claims similar to those presented in this impartial hearing. The former student received a high school diploma but claimed that he lacked “even the rudimentary ability to comprehend written English on a level sufficient to enable him to complete applications for employment. . .” The Court concluded that the courts should not entertain such claims as a matter of public policy.
“Clearly, each and every time a student fails to progress academically, it can be argued that he or she would have done better and received a greater benefit if another educational approach or diagnostic tool had been utilized. Similarly, whenever there was a failure to implement a recommendation made by any person in the school system with respect to the evaluation of a pupil or his or her educational program, it could be said, as here, that liability could be predicated on misfeasance. However, the court system is not the proper forum to test the validity of the educational decision to place a particular student in one of the many educational programs offered by the schools of this State.
Hoffman V. Bd. Of Educ. 49 N.Y.2d 121, 127 (1979)
See also Harr s v. Dutchess County Bd. of Co-Op Educ. Serv ces, 2015 WL 6835461
(N.Y. Sup. Ct., Nov. 4, 2015) (“Plaintiffs' cause of action for negligent misrepresentation is dismissed as barred by the State's public policy against courts evaluating non-intentional acts of educators and school officials in the educational context.”)
Statute Of Limitations
The parties in this impartial hearing misinterpret the two-year Statute of Limitations as a two-year look back from the date of the impartial hearing complaint.
(Tr. 19) An IDEA claim accrues on the date that a parent “knew or should have known”
(KOSHK date) about the alleged action that forms the basis of the complaint. 20 U.S.C.
section 1415(b)(6)(B). See Somoza v. New York C ty Dep’t of Educ., 538 F.3d 106, 112
(2d Cir. 2008)
“Timeline for requesting an impartial hearing. The request for an impartial due process hearing must be submitted within two years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint, except that the two-year timeline shall not apply to a parent if the parent was prevented from requesting the impartial hearing due to specific misrepresentations by the school district that it had resolved the problem forming the basis of the complaint or the school district’s withholding of information from he parent that was required to be provided to the parent under this Part or under Part 201 of this Title.”
New York State Commissioner of Education regulation § 200.5(j)(1)(i).
The Statute of Limitations is a look forward from the date that the Parent “knew or should have known” (KOSHK) of the alleged violation of the IDEA and provides two years in which to file their impartial hearing complaint. See G.L. v. L gon er Valley Sch.
D st. Auth., 802 F.3d at 601, 614-15 (3d Cir. 2015). It is unclear how far back an impartial hearing may go, but one may also consider the equitable doctrine of laches.
It is impossible to calculate the statute of limitations in this case. First, there is no allegation of a specific action that forms the basis of the Former Student’s complaint.
Second, the statute of limitations is based on the rights and knowledge of parents rather than that of the student or others. In this case, it is impossible to calculate a KOSHK date.
To the contrary, there was testimony that the Mother “was under the impression that he’s doing fine. Everything was fine.” (Tr. 164) There is no law to establish that the KOSHK can be based on when someone other than a parent knew or should have known of a violation.
The impossibility of calculating the Statute of Limitations using the IDEA impartial hearing system further proves that former students do not have standing to bring IDEA cases and that this case is a camouflaged educational malpractice case.
Child Find
The Former Student claims a failure of the DOE to comply with the “Child Find” obligations of the IDEA. (Tr. 70) The IDEA places an affirmative duty on states and school districts to identify, locate, and evaluate children with disabilities who reside in the state.
(3) Child Find
(A) In general
All children with disabilities residing in the State, including children with disabilities who are homeless children or are wards of the State and children with disabilities attending private schools, regardless of the severity of their disabilities, and who are in need of special education and related services, are identified, located, and evaluated and a practical method is developed and implemented to determine which children with disabilities are currently receiving needed special education and related services.
20 U.S.C. §1412(a)(3)(A)
See also 34 C.F.R. § 300.111(a)(1); New York State Commissioner of Education Regulation Section 200.2(a)(7) It is well-established that the “Child Find” provisions impose an affirmative duty on school districts to identify, locate and evaluate all children suspected of having a disability, including those in private schools. Letter to Lane, 16
EHLR 959 (OSERS, 1990).
In this case, the Former Student claims that the DOE failed to conduct appropriate evaluations to identify his disability. The hearing record does not establish that. To the contrary, the hearing record establishes that the DOE identified as a student with a disability and provided him with special education over aperiod of many years.
I find that the DOE complied with its “Child Find” obligations.
Misclassification Of Disability
The former Student’s complaint alleges that the CSE misclassified his Disability as “ .”
In this case, the Former Student’s July 16, 2013 IEP describes (Ex. 1 at 1)
After graduation, the 2014 Evaluation and the 2014 Evaluation confirm that still had . His performance on repeated administrations of the demonstrate
. His
“ ” and had “
. (Ex. M at 16) These weaknesses adversely
affected his past educational performance as indicated on his July 16, 2013 IEP.
I find that ’s disability met the criteria for a student with
.
In the Former Student’s opening statement, there was also a statement about a
.
“ as proven by the Petitioner's exhibits
and the DOE ignored this.” (Tr. 73)
Upon this hearing officer’s questioning, the attorney for the Former Student indicated that a is mentioned in the private Evaluation from 2015. (Ex. M) This evaluation includes two lines on ’s medical history:
“
.” (Ex. M at 2)
The attorney for the former Student infers from that statement that the Former Student has a although there is no such diagnosis in the hearing record before me.
I find that the hearing record does not establish that has a disability that could have been classified as “ .”
The complaint also alleges a diagnosis of relying on the private Evaluation dated 2015 after graduated from .
(Ex. M) This evaluation includes the diagnostic impression of “ .” (Ex. M at 17) This nomenclature comes from the American Psychiatric Association’s (APA) “Diagnostic and Statistical Manual – Fifth Edition (DSM-5). The APA issued the DSM-5 on May 18, 2013, and it made major revisions in the definition and diagnostic criteria for “ . The
2015 evaluation of includes a
. , the publisher, replaced the with the in 2013 to incorporate the new DSM-5 criteria for . So in this case, the evaluator administered an outdated version of the but then tried to apply the results to the new DSM-5 criteria. (Ex. M at 13)
Even so, the evaluator concluded:
“
” (Ex. M at 13, emphas s added)
This interpretation of the significance of the scores does not reflect the language uses in the . With an , the probability of is
Lastly, even if the Former Student did have a medical diagnosis of , the educational classification “ ” is delineated in the New York State regulations:
“
In this case, there is no evidence that had evident before the age of . The 2015 Evaluation rated ’s and the hearing record does not establish that he displayed
.
I find that the hearing record does not establish that has a disability that could have been classified as “ .” I find that the CSE appropriately classified
’s disability as “ .”
The Former Student claims that the DOE “forced” him to graduate before he was ready, and that he received a he did not earn. While testimony indicated that obtained a , the and the establish that he earned
. (Ex. 10, Ex. 11)
To earn a , a student must
:
.7
As the is a aligned with the State standards, obtaining a terminates the student’s right to a public education. 28 C.F.R. §300.102(a)(3)(iv) “. . . the term does not include an that is not fully aligned with the State’s academic standards, such as a .”
In the matter before me, entered in September 2010 and he was, therefore, entitled to take . persisted in taking
. Although the was available to him, he persevered and took .
.
I find that earned a using the option available to all New York State Students as a matter of fact. As the is aligned with New York State’s academic standards and the , students who obtain a no longer have a right to a “free and appropriate public education” (FAPE).
(a) General. The obligation to make FAPE available to all children with disabilities does not apply with respect to the following: . . .
(3)(i) Children with disabilities who have graduated from high school with a regular high school diploma.
(ii) The exception in paragraph (a)(3)(i) of this section does not apply to children who have graduated from high school but have not been awarded a regular high school diploma.
(iii) Graduation from high school with a regular high school diploma constitutes a change in placement, requiring written prior notice in accordance with § 300.503.
(iv) As used in paragraphs (a)(3)(i) through (a)(3)(iii) of this section, the term regular h gh school d ploma does not include an alternative degree that is not fully aligned with the State's academic standards, such as a certificate or a general educational development credential (GED).
28 C.F.R. §300.102(a)(3)(iv)
and his brother assume that the CSE has authority to delay a student’s receipt of a even after he completes all required courses and examinations.
wanted to “ .” (Tr. 167) Once
, his right a free public education terminates. The CSE did not have legal authority to
.
In New York State, a nonveteran who has received a regular high school diploma is not entitled to a free public education but may pay to attend public school classes.
A person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition. . . . A nonveteran under twenty-one years of age who has received a high school diploma shall be permitted to attend classes in the schools of the district in which such person resides or in a school of a board of cooperative educational services upon payment of tuition under such terms and conditions as shall be established in regulations promulgated by the commissioner; provided, however, that a school district may waive the payment of tuition for such nonveteran, but in any case such a nonveteran who has received a high school diploma shall not be counted for any state aid purposes.
New York Education Law Section 3202
I find that the DOE did not .
Denial Of FAPE
The Former Student claimed that:
“ was neglected educationally by the Department of Education.”
(Former Student Opening, Tr. 73)
Again, this sounds in educational malpractice. Furthermore, there are only bare general allegations that the DOE failed to provide appropriate: evaluations, ,
IEP’s, and implementation of IEP’s for over a period of years. But the hearing record only includes one IEP dated July 16, 2013. The parties did not enter additional
IEP’s, evaluations, progress reports, and other documents into the record, or provide additional testimony to establish a denial of FAPE over a period of years. The parties had ample opportunity to do so.
Essentially, the Former Student assumes that the DOE did not provide appropriate services because his disability is still evident after graduation. The Brother believes that
:
MR. As far as his educational needs are concerned,
. (Tr. 153)
The Former Student also assumes that evaluations conducted after graduation showing continued disability issues can establish that he did not have an appropriate education.
But the DOE placed in a series of approved private special education schools over a period of many years. He was in the , an approved private special education school for , where he could have stayed. But the Mother, with Mr. ’s assistance, requested the instead of the . The DOE responded to her request and placed in the . Now they claim that the did not provide an appropriate education for him. But was in there. The prepared him for that
P. The worked with him on for two years, and helped him .
I find no denial of FAPE.
CONCLUSION
While I have concluded that the Father and the Mother both had standing to file this impartial hearing, I have also considered the merits of the underlying case as a matter of equity and judicial economy. The case sounds in educational malpractice rather than as an IDEA case. Even so, I have reviewed the Former Student’s claims. I found the claims to make unsubstantiated allegations, and to be based on inaccurate assumptions concerning New York State disability classifications and diplomas.
O DE
There is no order in this case.
Dated: March 7, 2018
BARBARA J. EBENSTEIN, ESQ. BE: Impartial Hearing Office
PLEASE TAKE NOTICE
The parent and/or the New York City Department of Education has a right to obtain areview of this decision by a State eview Officer of the New York State Education Department under Part 200.5(k) of the egulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act.
Directions and forms can be found on the Office of State eview website: http://www.sro.nysed.gov/ evised egulationsOverview.html
DOCUMENTATION ENTERED INTO THE RECORD
DOE
1 IEP, dated July 16, 2013, 15 pages
2 Final Notice of Recommendation, dated 7/16/2013, 1 page
3 Notice of IEP meeting, dated 6/24/14, 3 pages
4 Waiver of an IEP meeting for amendment, dated 10/26/2012, 3
pages
5 Final Notice of Recommendation, dated 5/11/12, 1 page
6 CSE minutes, dated 6/24/14, 2 pages
7 , dated of 5/28/14, 4 pages.
8 Progress Report, dated June 12, 2013, 3
pages.
9 , dated 6/6/2013, one page.
10 , June 2011 through January 2014, 5
pages.
11 , dated 6/23/14, 5 pages.
12 , dated 6/30/14 1 page.
13 Events log, various dates 5/2/12 through 11/5/14. 3 pages
14 Memorandum Of Law For The Department Of Education, dated March 2,
2018, 4 pages
PARENT
A Evaluation, dated 7/5/2014, 3 pages B Omitted C , dated
7/5/2014, 8 pages D , dated 7/5/13, 7 pages i
E , dated 7/5/2014, 2 pages
F , dated 7/5/14, 3 pages
G , dated 7/5/14, 37 pages
H , dated 6/23, 5 pages
I Present Levels of Performance, undated, 3 pages
J , dated 7/10/14, 7
pages
K , dated 5/28/14, 5 pages
L , dated 7/9/14, 10 pages
M , dated 9/17/2015, 23 pages
N Request for evaluation dated 3/31/14, one page
O Complaint, dated 5/29/2015, 8 pages
P Corrected Complaint – Identification Only
Q , dated 12/27/16, 11
pages
R IEP dated 7/16/13, 16 pages (duplicate DOE Ex. 1 with cover sheet)
S Temporary order of protection, dated 4/17/14, 5 pages
T Order of protection, dated 6/2/14, two pages
U Impartial hearing transcript, 4/26/17, 87 pages
V Impartial hearing transcript, 6/20/17, 104 pages
W SRO appeal document, dated 9/7/17, 29 pages
X SRO decision, dated 11/15/17, 10 pages
Y Petitioner’s Post-Hearing Brief, dated March 2, 2018, 30 pages
Footnotes
[1] The Former Student filed a corrected Complaint dated June 1, 2015, but the previous impartial hearing did not admit it into evidence.
[2] Testimony establishes that . (Tr. 306) .
[3] A simple search of whitepages.com would have quickly, and with certainty, given him the address of the Mother in .
[4] Although Mr. testified that did not know his Father’s address (Tr. 327-8), a simple search of whitepages.com would have quickly and with certainty given him the address of the Father in .
[6] also testified that he became involved with ’s education in his year. (Tr. 168) There is no resolution of this inconsistency in the record. It appears that became involved when was in the final year of .