STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-046
Application of a STUDENT WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Appearances:
Liz Vladeck, General Counsel, attorneys for respondent, by Cynthia Sheps, Esq.
I. Introduction
This 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. Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which denied her request that respondent (the district) fund the costs of her daughter's private services delivered by Edopt, LLC (Edopt) for the 2023-24 school year. The district cross-appeals from those portions of the IHO decision which denied its motion to dismiss the parent's due process complaint notice for lack of subject matter jurisdiction and raised alternative grounds to deny the parent's requested relief. The appeal must be dismissed. The cross-appeal must be dismissed.
II. Overview—Administrative Procedures
When a student who resides in New York is eligible for special education services and attends a nonpublic school, Article 73 of the New York State Education Law allows for the creation of an individualized education services program (IESP) under the State's so-called "dual enrollment" statute (see Educ. Law § 3602-c). The task of creating an IESP is assigned to the same committee that designs educational programing for students with disabilities under the IDEA (20 U.S.C. §§ 1400-1482), namely a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, State law provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of [Education Law § 4404]," which effectuates the due process provisions called for by the IDEA (Educ. Law § 3602-c[2][b][1]). Incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 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" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An 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 business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[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 45 days after the expiration period or adjusted period for the resolution process (34 CFR 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 (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).
A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).
III. Facts and Procedural History
Given the disposition of this appeal on procedural grounds, the facts and procedural history of the case and the IHO's decision will not be recited here in detail.
Briefly, a CSE convened on November 17, 2020, determined that the student was eligible for special education as a student with a learning disability, and developed an IESP with an implementation date of November 24, 2020 (Parent Ex. B at p. 1).[1] The CSE recommended that the student receive six periods per week of direct, group special education teacher support services (SETSS), three 30-minute sessions per week of individual occupational therapy (OT), two 30-minute sessions per week of individual physical therapy (PT), and two 30-minute sessions per week of individual speech-language therapy (id. at p. 11).[2] Subsequently, a CSE convened on December 8, 2022, determined that the student should continue the previously recommended program of SETSS, speech-language therapy, and OT, but did not recommend that the student receive PT services (compare Dist. Ex. 3 at pp. 1, 6-7, with Parent Ex. B at p. 11).
On April 26, 2023, the parent completed a district form to notify the district that she intended to place the student in a nonpublic school at her own expense for the 2023-24 school year and requested that special education services continue to be provided to the student (Parent Ex. F). On September 3, 2023, the parent electronically executed an "Enrollment Agreement" with Edopt for the provision of services to the student for the 10-month 2023-24 school year "as per the last agreed upon IEP/IESP/FOFD" (Parent Ex. D). The parent's lay advocate notified the district, via a letter dated September 14, 2023, that the student had not been assigned a provider to deliver the special education services mandated for the 2023-24 school year and that, if the district did not assign a provider, the parent would have to locate her own provider and seek reimbursement from the district (Parent Ex. E). A CSE convened to develop an IESP for the student on October 24, 2023 and continued to recommend the same program of SETSS, speech-language therapy, and OT services (compare Parent Ex. C at pp. 1, 9, with Dist. Ex. 3 at pp. 6-7).
In a due process complaint notice dated May 15, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year (Parent Ex. A). The parent alleged that the district failed to develop an appropriate program of services and failed to supply providers for the recommended services or notify the parent how the student's recommended services would be provided for the 2023-24 school year (id. at pp. 1-2). The parent alleged further that she was unable to find a provider at the district's approved rate and was forced to retain a provider at an "enhanced rate" (id. at p. 2). The parent requested a pendency hearing and reimbursement or funding for SETSS, speech-language therapy, and OT for the 2023-24 school year in addition to an award of compensatory education for any services not provided by the district (id.).
An impartial hearing convened before the Office of Administrative Trials and Hearings (OATH) on September 18, 2024 (Tr. pp. 4-38). The parties submitted documentary evidence, all of which was admitted into the hearing record (Tr. pp. 7, 10). The district made a formal motion to dismiss the proceedings "based on subject matter jurisdiction," which was denied by the IHO (Tr. pp. 10-12; see IHO Decision at pp. 2-3). In a decision dated December 14, 2024, the IHO found that the district denied the student a FAPE for the 2023-24 school year by failing to implement the student's IESP but denied the parent's request for reimbursement or funding for the unilaterally obtained services provided to the student (IHO Decision pp. 2-3, 5-6). In her procedural summary, the IHO noted that the district "acknowledged that they failed to implement and had failed to offer the student an appropriate education" and that the district did not present any witnesses at the hearing (id. at p. 2). Next, the IHO summarized her findings of fact and held that "there [was] no question that the parent contracted with [Edopt] as a remedy for the violations of the district" (id. at p. 2-3). However, the IHO did not find the testimony of the Edopt administrator credible noting that he "did not have a credible, clear understanding of [the] [s]tudent" (id. at p. 5). Moreover, the IHO found that the timesheets submitted by the parent did not match the session notes and that, despite the IESP mandating group services, the student was receiving both individual and group services at a frequency of three hours per week instead of the recommended six hours per week (id.). The IHO found that the testimony provided by the Edopt administrator indicated that the student had only received half of the mandated services and that the witness could not testify to the student's needs or goals (id.). Thus, the IHO determined that the parent did not meet her burden and denied her requested relief (id.at p. 6).
IV. Appeal for State-Level Review
The parent appeals, alleging that the IHO erred in finding that her witness was not credible and that the unilaterally obtained services were not appropriate. The parent argues that she did not need to follow the exact IESP guidelines when unilaterally arranging for services for the student and that the testimony presented demonstrated an appropriate program was provided to the student.
In an answer and cross-appeal, the district argues that the instant matter should be dismissed due to the parent's failure to conform with practice regulations as the request for review as submitted was not properly signed or verified. Alternatively, the district cross-appeals arguing that the IHO erred in denying the district's motion to dismiss for lack of subject matter jurisdiction and also argues that the parent failed to demonstrate that equitable considerations supported the parent's requested relief. [3]
V. Discussion
As a threshold matter, it must be determined whether the parent's appeal should be dismissed for failing to comply with practice regulations. The district argues the parent's pleading does not conform with the signature requirement of Part 279 of the State regulations and further that the request for review is not properly verified.
On January 24, 2025, the parent's lay advocate filed the following documents with the Office of State Review: a notice of intention to seek review and an affidavit of service (both dated December 30, 2024), a request for review (dated January 1, 2024), an affidavit of verification (subscribed and sworn to on January 23, 2025), and an affidavit of service (subscribed and sworn to on January 23, 2025).
The request for review set forth the parent's conformed signature and her name under the signature line followed by "Prime Advocacy" and the lay advocate's business address. State regulation provides that "[a]ll pleadings and papers submitted to a State Review Officer in connection with an appeal must be endorsed with the name, mailing address, and telephone number of the party submitting the same or, if a party is represented by counsel, with the name, mailing address, and telephone number of the party's attorney" (8 NYCRR 279.7[a]). It would be impermissible for the lay advocate to sign the pleading as she has been previously warned (see, e.g., Application of a Student with a Disability, 24-572); however, here, it appears that the lay advocate simply substituted the parent's conformed signature in place of her own, while maintaining the preprinted signature block of Prime Advocacy, again adding confusion to what should be a straightforward procedure. The lay advocate, in the role of "assisting" the parent, should direct the parent to put her own name and current information on pleadings herself.
While I acknowledge the issues with the parent's signature, the more pressing issue before me is that the submitted "Affidavit of Verification" included with the parent's request for review does not appear to be signed by either of the student's parents.[4] The practice regulations require verification of all pleadings submitted to an SRO in connection with an appeal (see 8 NYCRR 279.7[b]). When the appeal is taken by the student's parent or parents, "[t]he request for review shall be verified by the oath of at least one" such petitioner (see id.). Verification of a document entails a sworn statement that the affiant knows the contents of the document and knows the contents of the document to be true; or, with respect allegations made "upon information and belief," the affiant believes the allegations to be true (see 8 NYCRR 279.7[b][1]). The submitted affidavit of verification included with the parent's request for review is signed by an individual with a similar first name to the parent's mother but a completely different last name that does not appear anywhere else in the hearing record and does not correspond to the parent's name as stated in the first paragraph or signature line of the request for review itself (compare Aff. of Verif., with Req. for Rev. at pp. 1, 8; Not. of Intention to Seek Rev.; IHO Decision at pp. 1, 9; Parent Exs. A at p. 1, 5; C at p. 12; D at pp. 1, 3; E; F; Dist. Exs. 2 at p. 12; 3 at p. 9 ).[5], [6] The discrepancy was raised by the district in its answer and cross-appeal and, therefore, the parent had an opportunity to explain; however, the parent did not file a responsive pleading even after requesting an extension of time to file an answer to the district's cross-appeal (see Letter from OSR to Prime Advocacy, dated Jan. 29, 2025).
In general, the failure to comply with the practice requirements of Part 279 of the State regulations may result in the rejection of the submitted documents or the dismissal of a request for review by an SRO (8 NYCRR 279.8[a]; see T.W. v. Spencerport Cent. Sch. Dist., 891 F. Supp. 2d 438, 440-41 [W.D.N.Y. 2012] [upholding dismissal of a petition for review that was untimely and exceeded page limitations]). "[J]udgments rendered solely on the basis of easily corrected procedural errors or 'mere technicalities,' are generally disfavored" (J.E. v. Chappaqua Cent. Sch. Dist., 2015 WL 4934535, at *4-*6 [S.D.N.Y. Aug. 17, 2015], quoting Foman v. Davis, 371 U.S. 178 [1962]). However, "while a singular failure to comply with the practice requirements of Part 279 may not warrant an SRO exercising his or her discretion to dismiss a request for review or reject a memorandum of law (8 NYCRR 279.8[a]; 279.13; see Application of a Student with a Disability, Appeal No. 16-040), an SRO may be more inclined to do so after a party's or a particular attorney's repeated failure to comply with the practice requirements" (Application of a Student with a Disability, Appeal No. 19-060; Application of a Student with a Disability, Appeal No. 19-058; Application of a Student with a Disability, Appeal No. 18-110; 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)
Here, the parent's lay advocate has been frequently cautioned by SROs that failure to comply with the practice requirements of Part 279 of State regulations is likely to result in rejection of submitted documents (see, e.g., Application of a Student with a Disability, Appeal No. 24-603; Application of a Student with a Disability, Appeal No. 24-584; Application of a Student with a Disability, Appeal No. 24-577; Application of a Student with a Disability, Appeal No. 24-574; Application of a Student with a Disability, Appeal No. 24-573; Application of a Student with a Disability, Appeal No. 24-572; Application of a Student with a Disability, Appeal No. 24-564; Application of a Student with a Disability, Appeal No. 24-563; Application of a Student with a Disability, Appeal No. 24-558; Application of a Student with a Disability, Appeal No. 24-541; Application of a Student with a Disability, Appeal No. 24-515).
Accordingly, in conformity with the concerns identified in the above decisions and given the number and type of procedural deficiencies present in the initiation of this particular appeal, as well as the district's arguments in its answer that the procedural defects warrant dismissal, I decline to exercise my discretion to consider the parent's appeal (see Appeal of Y.O., 59 Ed. Dep't Rep., Decision No. 17,842 [2020] [dismissing an appeal before the Commissioner of Education for lack of proper verification where a non-party completed the verification], available athttps://www.counsel.nysed.gov/Decisions/volume59/d17842).
VI. Conclusion
Given the above determination there is no need to address the remaining arguments, the necessary inquiry is at an end.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS DISMISSED.
Footnotes
[1] The student's eligibility for special education as a student with a learning disability is not in dispute (see 34 CFR 300.8[c][10]; 8 NYCRR 200.1[zz][6]).
[2] The term SETSS is not defined in the State continuum of special education services (see NYCRR 200.6), and the manner in which those services are treated in a particular case is often in the eye of the beholder. As has been laid out in prior administrative proceedings, the term is not used anywhere other than within this school district and a static and reliable definition of "SETSS" does not exist within the district, and unless the parties and the hearing officer take the time to develop a record on the topic in each proceeding it becomes problematic (see Application of the Dep't of Educ., Appeal No. 20-125). For example, SETSS has been described in a prior proceeding as "a flexible hybrid service combining Consultant Teacher and Resource Room Service" that was instituted under a temporary innovative program waiver to support a student "in the general education classroom" (Application of a Student with a Disability, Appeal No. 16-056), and in another proceeding it was suggested that SETSS was more of an a la carte service that is completely disconnected from supporting the student in a general education classroom setting (Application of a Student with a Disability, Appeal No. 19-047).
[3] While the district argues the IHO improperly denied its motion to dismiss for lack of subject matter jurisdiction in its cross-appeal, in a number of recent decisions, the undersigned and other SROs have rejected the district's position that IHOs and SROs lack subject matter jurisdiction to address claims related to implementation of equitable services under State law (see, e.g., Application of a Student with a Disability, Appeal No. 24-615; Application of a Student with a Disability, Appeal No. 24-614; Application of a Student with a Disability, Appeal No. 24-612; Application of a Student with a Disability, Appeal No. 24-602; Application of a Student with a Disability, Appeal No. 24-595; Application of a Student with a Disability, Appeal No. 24-594; Application of a Student with a Disability, Appeal No. 24-589; Application of a Student with a Disability, Appeal No. 24-584; Application of a Student with a Disability, Appeal No. 24-572; Application of a Student with a Disability, Appeal No. 24-564; Application of a Student with a Disability, Appeal No. 24-558; Application of a Student with a Disability, Appeal No. 24-547; Application of a Student with a Disability, Appeal No. 24-528; Application of a Student with a Disability, Appeal No. 24-525; Application of a Student with a Disability, Appeal No. 24-512 Application of a Student with a Disability, Appeal No. 24-507; Application of a Student with a Disability, Appeal No. 24-501; Application of a Student with a Disability, Appeal No. 24-498; Application of a Student with a Disability, Appeal No. 24-464; Application of a Student with a Disability, Appeal No. 24-461; Application of a Student with a Disability, Appeal No. 24-460; Application of a Student with a Disability, Appeal No. 24-441; Application of a Student with a Disability, Appeal No. 24-436; Application of the Dep't of Educ., Appeal No. 24-435; Application of a Student with a Disability, Appeal No. 24-392; Application of a Student with a Disability, Appeal No. 24-391; Application of a Student with a Disability, Appeal No. 24-390; Application of a Student with a Disability, Appeal No. 24-388; Application of a Student with a Disability, Appeal No. 24-386). On these same grounds, the IHO did not err in denying the district's motion and there is no need to further consider this issue on appeal.
[4] I also note that the parent's request for review was not accompanied by a required "Notice of Request for Review" (see 8 NYCRR 279.3).
[5] The hearing record includes different spellings of the parent's first name but no variations of her last name (see IHO Ex. IV at p. 1 [identifying different spellings of the first name on a subpoena with "aka"]).
[6] Further confusing the matter, the request for review bears a caption with initials on behalf of the student that do not correspond to the parent's name or the name of the individual who signed the affidavit of verification.