STATE OF RHODE ISLAND
COMMISSIONER OF EDUCATION
IN E AJ v. Barrington SD
RIDE Case No. 18-031K
DECISION
STATE OF RHODE ISLAND COMMISSIONER OF
AND EDUCATION
PROVIDENCE PLANTATIONS
In the Matter of A.J. Doe
Held: Parents’ appeal of decision issued by due process hearing officer to Commissioner of Elementary and Secondary Education is dismissed because the Appellants failed to appear at the time of hearing on August 6, 2018 and the Commissioner lacks jurisdiction to review such decisions.
DATE: August 31, 2018
Travel of the Case:
On March 22, 2018 Mr. and Mrs. Doe filed a “Request For Hearing” before the Commissioner of Education. The request alleged that a March 12, 2018 decision of due process hearing officer Maureen A. Hobson was:
not in compliance with the law, nor is the decision a derivative of all the facts presented by both parties; it is wholly biased and not in the best interest of [Doe].
The matter was assigned on May 30, 2018 and scheduled for hearing on August 6, 2018. Written notice of the hearing date and time were sent by regular mailing[1] dated July 19, 2018 and also by email. Efforts to confirm the hearing were made by the legal office, but no response from the Appellants was received. On August 6, 2018 counsel for the Barrington School Department appeared on behalf of her client. The Appellants did not appear. A stenographic record was made and counsel for Barrington School Department placed on the record details of the Barrington School Department’s most recent attempts to provide Doe with a free appropriate public education (FAPE).
Apparently, at the parents’ request, the School Department had engaged the services of the Morgens Group located in Wellesley, Massachusetts for purposes of conducting a comprehensive evaluation of Doe at district expense. Doe is a student with a disability who has not received formal educational services since his parents removed him from a program at Pathways Strategic Teaching Center (Pathways) in July of 2014. Counsel for the School Department indicated that Doe’s parents (and Doe) had not attended any of three appointments with Dr. Morgens (February 28, March 1, and March 7, 2018) scheduled for his comprehensive evaluation. They also had not followed up to reschedule these appointments.
After placing the above-cited facts on the record and submitting the due process hearing officer’s decision into evidence, counsel for the School Department made a motion to dismiss this appeal for lack of jurisdiction and indicated that she would submit her legal arguments in a written memorandum. The district’s memorandum was submitted to the hearing officer on August 20, 2018, with a copy provided to the Appellants at their post office box in Riverside, Rhode Island. On August 27, 2018 two communications were received from the Appellants. The first, a letter dated August 27, 2018 indicated that the Appellants had not “heard from you in regards to a hearing date” and inquired:
When is the hearing date in front of the commissioner?
The second communication, hand-delivered on the same date, was an “Objection to the Memorandum in Support of the Motion to Dismiss and Request that the Order Dismissing Hearing be Vacated”. The parents asserted in this document that they had been unable to attend the hearing before the undersigned-hearing officer on August 6, 2018 “due to an emergency with [Doe]”. This pleading also contained lengthy factual assertions[2] and argued that Doe is currently not attending an educational placement due to the Barrington Public School’s failure to identify one in which Doe could make progress and one in which a seclusion room does not exist. This pleading failed to address the issue of jurisdiction of the Commissioner to hear this appeal.
ISSUE:
Does the Commissioner have jurisdiction to review the decision of a due process hearing officer who dismissed without prejudice a due process complaint alleging, inter alia, that the Barrington School District has failed to provide FAPE for [Doe] from July 2014 to the present date?[3]
Although entitled a “Request For Hearing Before Commissioner Of Education,” the Appellants actually seek review of a decision of a due process hearing officer acting pursuant to the procedures established under 20 USC Sec. 1401 et seq. and the Regulations Governing The Education Of Children With Disabilities (2013) (the “Regulations”). The Commissioner lacks jurisdiction to review decisions of due process hearing officers.[4] Under the current Regulations, when a due process complaint is filed, procedural safeguards include a Resolution Process (§300.510) and, if no resolution is achieved, an impartial due process hearing (§300.511). The impartial due process hearing officer is secured by the SEA, in this case RIDE, but may not be an employee of either the SEA or LEA. The hearing officer’s fee is paid by the LEA. The Regulations also specifically provide that any party aggrieved by the findings and decision made [by a due process hearing officer] “has the right to bring a civil action with respect to the due process complaint…” in any state court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy.[5] Such civil action must be filed within thirty (30) days of the party’s receipt of the decision of the hearing officer.
The request here is that the Commissioner review Hearing Officer Hobson’s March 12, 2018 decision. As indicated, the Commissioner is not authorized under state or federal law to exercise appellate review of an IDEA hearing officer’s decision. Even if the Commissioner were to exercise such authority, based on the record made at the time of hearing,[6] the administrative decision issued by Attorney Maureen Hobson is adjudged to be entirely consistent with applicable law and fully supported by the facts presented in the case. There is no evidence of bias on the part of the due process hearing officer. Ms. Hobson indicated in her March 12, 2018 decision:
Since the child was removed from school by the parents in 2014 and has not been evaluated since then, there are no services that the LEA has offered or could offer now that would be deemed FAPE without reviewing the test results and report from The Morgens Group.
Ms. Hobson’s conclusion therefore was that the due process complaint filed on February 13, 2018 was premature because current testing and a resulting report are necessary for an IEP team to make any determination of appropriate services for Doe and an appropriate setting in which to provide the services. Unfortunately, the Appellants have failed to follow up on the need for their child’s evaluation and to work together with the Barrington School Department to get an IEP in place. The Appellants have apparently disengaged from the process that must be followed for FAPE to be provided to their child, even when that process includes the evaluator of their own choice. The due process hearing officer’s dismissal of the due process complaint without prejudice was entirely appropriate, as was her directive that:
(f)ollowing receipt of the aforementioned test results and report, it is the duty of the LEA to convene an IEP team and to develop a plan for educational services for [Doe]. If the LEA fails to do so, or the parents disagree with the proposed services, the parents can renew their complaint and proceed to hearing at that time.
Therefore, if the Commissioner were to have jurisdiction over this appeal, an exercise of this jurisdiction would lead him to affirm the decision of the due process hearing officer in this matter.
For the foregoing reasons, and because the Appellants failed to appear at the time of hearing to press their appeal, this matter is denied and dismissed.
Footnotes
[1] The Appellants provided a post office box for receipt of communications with respect to this appeal.
[2] The assertions include the existence of a conspiracy/collusion involving the Federal, Superior, Supreme and Family Courts, RIDE, other agencies and individuals to deprive Doe of a free appropriate public education. The
[3] The date of the due process hearing officer’s decision was March 12, 2018.Barrington Ex. 1.
[4] Parents of students with disabilities are not precluded from utilizing the Commissioner’s hearing process as an alternative to the IDEA dispute resolution process. This principle was established in 1996 In The Matter of Jane A.H. Doe, decision of the Commissioner dated April 4, 1996. However, if a dispute with respect to FAPE is brought to the Commissioner for hearing under R.I. Gen. Laws 16-39-2, it must first be considered at the local level. Id.
[5] In the context of a different regulatory scheme in place in 1985, the R.I. Supreme Court ruled in In Re: Michael C., 487 A2d 495 (R.I. 1985) that parents utilizing the dispute resolution procedures in place under IDEA at that time did not give up a “third level of review” available to any parent aggrieved by a decision of the Commissioner, i.e. an appeal to the Board of Regents. In the present regulatory context, a state-level due process hearing officer acts independently of the Commissioner in adjudicating special education disputes at the state level. Such decisions would not be subject to review by the Council on Elementary and Secondary Education under R.I. Gen. Laws 16-39- 3.
[6] The Appellants failed to appear at the time of hearing to present contrary evidence in this regard. Their assertion in the letter submitted on August 27, 2018 (after their receipt of the School Committee’s written Motion to Dismiss) that they were unable to attend the hearing date because of an emergency with Doe is contradicted by their inconsistent assertion on the same date that they were unaware of the hearing date.
For the Commissioner,
Kathleen S. Murray
Hearing Officer
Kenneth Wagner, Ph.D.
Commissioner
Date: August 31, 2018