STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-236
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:
Law Office of Philippe Gerschel, attorneys for petitioner, by Philippe Gerschel, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Gail Eckstein, 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 the decision of an impartial hearing officer (IHO) which terminated the parent's due process complaint notice with prejudice. The appeal must be sustained.
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 procedural posture of this matter—namely that it was terminated with prejudice prior to an impartial hearing—there was no development of an evidentiary record regarding the student through testimony or exhibits entered into evidence. Accordingly, the description of the facts is limited to the procedural history, including the parent's filing of a due process complaint notice, an amended due process complaint notice, and the IHO's order of termination with prejudice.
In an amended due process complaint notice dated November 21, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year (Amended Due Process Compl. Not. at p. 3).[1] Specifically, the parent asserted that the district failed to implement an April 29, 2020 "[individualized education program]" (IEP) for the beginning of the 10-month 2023-24 school year, and failed to implement a November 14, 2023 IESP for the remainder of the 10-month 2023-24 school year (id. at pp. 2-3).[2] The parent invoked the student's right to pendency and argued that the student's pendency services were based on both the April 29, 2020 "IESP," for the period of time from September 7, 2023 through November 13, 2023, and on the November 14, 2023 IESP for the period of time from November 14, 2023 through the conclusion of the proceedings (id. at p. 2). Next, the parent expressed concern regarding implementation of the April 29, 2020 "IESP" and with implementation of the November 14, 2023 IESP for the 2023-24 school year (id. at p. 3). The parent asserted that she had been unable to locate providers on her own and the district had failed to implement its own recommendations (id.). The parent also stated that "[w]ithout supports, the parental mainstream placement [wa]s untenable, and the failure to either implement the services or provide a placement [wa]s a denial of a FAPE to the student for the 2023-24 school year" (id.). As relief, the parent sought a finding that the district's failure to implement its recommendations was a denial of a FAPE for the 2023-24 school year, and requested funding for the providers located by the parent for the 2023-24 school year at the provider's contracted for rate and funding for a bank of compensatory periods of the recommended services for the entire 2023-24 school year "or the parts of which were not serviced" at the prospective provider's contracted for rate (id.).
An IHO was appointed from the Office of Administrative Trials and Hearings (OATH) on January 8, 2025 (IHO Decision at p. 1). The parties convened before the IHO on January 15, 2025 (Tr. pp. 1-6).[3] Review of the transcript indicates that the IHO was presiding over multiple cases assigned to an omnibus docket and that the parties had convened for this matter at 9:35 a.m. (Tr. p. 3). The transcript reflects that this matter was adjourned to March 11, 2025, from 9:00 a.m. to 4:00 p.m. by agreement of the parties to secure the attendance of the parent (Tr. pp. 3-4). The IHO stated that the district had requested that she sign a witness subpoena for the parent; however, the parent's attorney indicated that there was insufficient time to schedule the parent's appearance (Tr. p. 4). The parties agreed that the parent's attorney would present the parent as a witness, prepare an affidavit in lieu of direct testimony, and secure the parent's appearance for cross-examination (id.).
Email correspondence included in the hearing record reflects that the parent disclosed documentary evidence in this matter to the district and the IHO on December 20, 2024, January 10, 2025, March 4, 2025, and March 6, 2025 (Email Correspondence at pp. 7-9). The correspondence includes a response from the IHO on March 6, 2025 at 12:49 p.m., inquiring as to what aspects of the documents had been updated and as to whether or not the district would accept the updated disclosures (id. at p. 6). A staff member from the parent's attorney's law firm responded a few minutes later at 12:52 p.m. indicating that the change to the disclosures was limited to the name of the parent's private provider (id.). The parent's attorney also replied at 1:00 p.m. stating, "[a]s the updates were submitted 7 days before the hearing and before the 5-Day Disclosure deadline, we are hoping this won't be an issue! Looking forward to making Tuesday run as smoothly as possible" (id at pp. 5-6). At 1:10 p.m. the IHO replied, "to clarify, the updates were submitted this morning and, therefore are not submitted 7 days before the hearing and before the 5 business Day Disclosure deadline. The updates sent this morning will only be accepted if [the district] is willing to accept them late" (id. at p. 5). The staff member responded at 1:12 p.m. and reiterated that the only change to the parent's disclosure was the name of the private provider, initially disclosed in an unnotarized affidavit on March 4, 2025, and "then notarized in today's disclosure" (id. at pp. 4-5). At 1:23 p.m., the IHO wrote, "I am in receipt of the [March 4] disclosure. Whatever was submitted today, still has to be accepted by [the district]" (id. at p. 4). On March 10, 2025 at 10:53 a.m., the district's attorney responded, "[t]he [district] objects to all disclosures submitted after the 5-day deadline" (id. at p. 3). On March 11, 2025 at 10:04 a.m., the staff member replied, "[the p]arent requests to withdraw this matter without prejudice" (id.). At 10:49 a.m., the district's attorney wrote, "[t]he [district] requests that the IHO dismiss the case with prejudice. The case was already adjourned once and relisted for March 11. We are ready. We further submit that parent is forum shopping" (id. at p. 2).
Also included with the hearing record in this matter was an excerpt from a March 11, 2025 transcript related to another matter that was part of the IHO's omnibus batch of cases for March 11, 2025, wherein the parties' attorneys discussed this matter (Mar. 11, 2025 Tr. pp. 51-60). Review of the March 11, 2025 transcript reflects a discussion of the district's 10:53 a.m. email responding to the staff member's request to withdraw the amended due process complaint notice (Mar. 11, 2025 Tr. p. 52). The parent's attorney requested an opportunity to brief a response, which the IHO denied; however, she offered to reschedule another appearance date or remain on the record past 4:00 p.m. (Mar. 11, 2025 Tr. pp. 52-53). The parties were unable to agree on a future appearance date and, at or around 4:04 p.m., the parent's attorney had to leave (Mar. 11, 2025 Tr. pp. 53-58). As relevant to the disposition of this matter, the parties agreed that the impartial hearing had not commenced as of late afternoon on March 11, 2025, which the IHO also acknowledged (Mar. 11, 2025 Tr. pp. 55, 57, 58).
On March 12, 2025, the IHO issued an order of termination (IHO Decision at p. 1). The IHO found that a hearing was scheduled for January 15, 2025, but rescheduled to March 11, 2025, for the parent to appear as a witness (id.). The IHO further found that on March 11, 2025, the parent notified the IHO and the district, "while the hearing for the omnibus batch was in progress, by email that the due process complaint was being withdrawn without prejudice" (id.). Next, the IHO found that the district objected to the withdrawal by email and requested that the IHO dismiss the matter with prejudice (id.). The IHO noted the parties' arguments in support of their respective positions and determined that "the herein due process complaint be withdrawn with prejudice given that [the parent] had months to withdraw the case prior to the start of the hearing, given that [the district] would be prejudiced if the withdrawal were permitted to be without prejudice, particularly where parent representative at no point prior to her email on March 12, 2025 indicated that the withdrawal request was being made because a witness had become unavailable, and given that petitioner's representative was reluctant to establish a date to adjourn the hearing" (id. at pp. 1-2).
IV. Appeal for State-Level Review
The parent appeals and argues that the IHO erred in issuing an order of termination dismissing the parent's amended due process complaint notice with prejudice. As relief, the parent requests reversal of the IHO's termination order, a finding that the IHO should have recused herself, and remand to another IHO.
In an answer, the district argues that the IHO did not err in dismissing the parent's amended due process complaint notice with prejudice and further asserts that the IHO did not exhibit bias or impropriety during the impartial hearing. The district also contends that the IHO's order of termination should be affirmed.
V. Applicable Standards
A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412[a][1][A]; Educ. Law § 4402[2][a], [b][2]). However, the IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137[a]). Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a], [c], 300.138[b]).
However, under State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the public school district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).[4] "Boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent" (Educ. Law § 3602-c[2][a]). In such circumstances, the district of location's CSE must review the request for services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602-c[2][b][1]). The CSE must "assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district (id.).[5] Thus, under State law an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district, that is dually enrolled, for the purpose of receiving special education programming under Education Law § 3602-c, dual enrollment services for which a public school district may be held accountable through an impartial hearing.
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]).
VI. Discussion
A. Withdrawal of the Due Process Complaint Notice
The parent argues that the IHO erred in determining that the impartial hearing had commenced prior to her request to withdraw the due process complaint notice. Review of the hearing record supports the parent's position.
Pursuant to State regulation, a due process complaint notice may be withdrawn by the party requesting a hearing (see 8 NYCRR 200.5[j][6]). If a party withdraws the due process complaint notice prior to the first date of an impartial hearing—meaning the first date the evidentiary hearing is held after the initial prehearing conference if one is conducted—the withdrawal shall be without prejudice unless the parties otherwise agree (8 NYCRR 200.5[j][6][i]). After the first date of an impartial hearing, a party seeking to withdraw a due process complaint notice must immediately notify the IHO and the other party, and the IHO "shall issue an order of termination" (8 NYCRR 200.5[j][6][ii]). In addition, a withdrawal "shall be presumed to be without prejudice except that the [IHO] may, at the request of the other party and upon notice and an opportunity for the parties to be heard, issue a written decision that the withdrawal shall be with prejudice" (8 NYCRR 200.5[j][6][ii]). The IHO's written decision that such withdrawal shall be "with or without prejudice" is binding on the parties unless appealed to an SRO (8 NYCRR 200.5[j][6][ii]). Lastly, State regulations provide that nothing in the withdrawal section shall "preclude an impartial hearing officer, in his or her discretion, from issuing a decision in the form of a consent order that resolves matters in dispute in the proceeding" (8 NYCRR 200.5[j][6][iv]).
As detailed above, the email correspondence reflects that the parent notified the IHO and the district by email at 10:04 a.m. prior to the discussion of this matter on the scheduled hearing date as part of a separate proceeding, at or around 4:00 p.m. on March 11, 2025 (Mar. 11, 2025 Tr. pp. 51-60; Email Correspondence at p. 3). The transcript clearly indicated that the parties agreed and the IHO acknowledged that, as of the conclusion of the proceedings held on March 11, 2025, an impartial hearing on this matter had not commenced (Mar. 11, 2025 Tr. pp. 55, 57, 58).
Notably, the district argues in its answer that the IHO has the authority to determine when the impartial hearing begins and further does not address the statements of its representative during the March 11, 2025 proceeding, who unequivocally stated that the impartial hearing had not commenced (Answer ¶ 5; Mar. 11, 2025 Tr. pp. 55, 57, 58). The district asserts that the withdrawal of the case should be with prejudice because the parent delayed in making the request to withdraw and the district was prepared to proceed with the impartial hearing.
Based on a review of the hearing record, I find that the IHO acknowledged the parties' agreement that the impartial hearing had not commenced prior to the parent's request to withdraw her amended due process complaint notice without prejudice. State regulations clearly state that if a party withdraws the due process complaint notice prior to the first date of an impartial hearing, the withdrawal shall be without prejudice unless the parties otherwise agree (8 NYCRR 200.5[j][6][i]). Based on the foregoing, the IHO erred in finding that the impartial hearing had commenced and in issuing an order of termination with prejudice.
B. IHO Bias
With respect to the parent's allegations of IHO bias, to the extent that the parent disagrees with the conclusions reached by the IHO, such disagreement does not provide a basis for finding actual or apparent bias by the IHO (see Chen v. Chen Qualified Settlement Fund, 552 F.3d 218, 227 [2d Cir. 2009] [finding that "[g]enerally, claims of judicial bias must be based on extrajudicial matters, and adverse rulings, without more, will rarely suffice to provide a reasonable basis for questioning a judge's impartiality"]; see also Liteky v. United States, 510 U.S. 540, 555 [1994] [identifying that "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion"]; Application of a Student with a Disability, Appeal No. 13-083).
It is well settled that an IHO must be fair and impartial and must avoid even the appearance of impropriety or prejudice (see, e.g., Application of a Student with a Disability, Appeal No. 12-066). Moreover, an IHO, like a judge, must be patient, dignified, and courteous in dealings with litigants and others with whom the IHO interacts in an official capacity and must perform all duties without bias or prejudice against or in favor of any person, according each party the right to be heard, and shall not, by words or conduct, manifest bias or prejudice (e.g., Application of a Student with a Disability, Appeal No. 12-064). An IHO may not be an employee of the district that is involved in the education or care of the child, may not have any personal or professional interest that conflicts with the IHO's objectivity, must be knowledgeable of the provisions of the IDEA and State and federal regulations and the legal interpretations of the IDEA and its implementing regulations, and must possess the knowledge and ability to conduct hearings and render and write decisions in accordance with appropriate, standard legal practice (20 U.S.C. § 1415[f][3][A]; 34 CFR 300.511[c][1]; 8 NYCRR 200.1[x]).
Here, the parent describes the IHO's conduct in other matters and fails to assert a single instance of impropriety related to this matter. Such speculative claims without any further information are insufficient to support a finding that the IHO exhibited bias in this matter.
VII. Conclusion
In summary, the hearing record does not support a finding that the IHO engaged in any bias toward the parent, however, the IHO erred in issuing an order of termination with prejudice. Accordingly, the parent's amended due process complaint notice shall be marked as withdrawn without prejudice.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the IHO's order of termination, dated March 12, 2025, is modified by reversing those portions which found that the impartial hearing had commenced prior to the parent's request to withdraw the amended due process complaint notice, and which ordered that the amended due process complaint notice be withdrawn with prejudice, and
IT IS FURTHER ORDERED that the parent's due process complaint notice in this matter is withdrawn without prejudice.
Footnotes
[1] The parent's amended due process complaint notice is not paginated. For purposes of this decision, the pages will be cited by reference to their consecutive pagination with the first page as page one. The parent filed an initial due process complaint notice on July 13, 2024 (see July 13, 2024 Due Process Compl. Not.). In a due process response dated October 11, 2024, the district generally denied the allegations contained in the initial due process complaint notice, asserted certain affirmative defenses, and attached a prior written notice dated November 16, 2023, which summarized the recommendations of the November 14, 2023 CSE (see Due Process Response at pp. 1-8).
[2] The amended due process complaint notice referred to the April 29, 2020 document as both an IEP and as an IESP (Amended Due Process Compl. Not. at pp. 2, 3). As an impartial hearing was not convened for this matter, no documentary or testimonial evidence was admitted into the hearing record. Nevertheless, the November 16, 2023 prior written notice, attached to the district's response to the parent's initial due process complaint notice, indicates that the November 14, 2023 CSE developed an IESP and considered an April 30, 2020 IESP in the development of the November 14, 2023 IESP (Due Process Response at pp. 3-4).
[3] An undated omnibus order applicable to this matter was issued by another IHO.
[4] State law provides that "services" includes "education for students with disabilities," which means "special educational programs designed to serve persons who meet the definition of children with disabilities set forth in [Education Law § 4401(1)]" (Educ. Law § 3602-c[1][a], [d]).
[5] State guidance explains that providing services on an "equitable basis" means that "special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district" ("Chapter 378 of the Laws of 2007–Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c," Attachment 1 (Questions and Answers), VESID Mem. [Sept. 2007], available athttps://www.nysed.gov/special-education/guidance-parentally-placed-nonpublic-elementary-and-secondary-school-students). The guidance document further provides that "parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student's placement in the nonpublic school program" (id.). The guidance has recently been reorganized on the State's web site and the paginated pdf versions of the documents previously available do not currently appear there, having been updated with web based versions.