Parental Challenges

 

There are instances where parents of a student with a disability challenge the actions taken by a committee or the school board regarding the classification, evaluation, or placement of their child. Every parent wants what is best for their child, and sometimes may not agree with their child being placed in special education, or may not agree with the placement of their student in a particular program. Parents have the right to challenge the actions taken by the school board or special education committee, and are entitled to submit a complaint. Parents are also entitled to request, in writing, an impartial due process hearing regarding the placement or evaluation of their child (20 USC § 1415(b)(6)(A), (f); 34 CFR §§ 300.507–514; Educ. Law § 4404(1); 8 NYCRR § 200.5(j)).

 

To be upheld, a complaint from parents must be submitted within two years of the date the parents either knew, or should have known about the alleged action taken that forms the basis of the complaint. However, this two-year limitation does not apply where the parents were prevented from requesting a hearing due to either specific misrepresentations by the school district that it had resolved the problems complained of, or the district withholding information it was required to provide the parents (20 USC § 1415(b)(6)(B), (f)(3)(C), (D); 34 CFR §§ 300.507(a)(2), 300.511(e), (f); 8 NYCRR § 200.5(j)(1)(i)).

 

Non-Custodial Parents

 

For noncustodial parents, a separation agreement, custody order, or divorce decree must be obtained or authorized to make education decisions for the child. Otherwise, non-custodial parents may not initiate due process hearing requests to challenge actions taken by the committee of special education, special educations subcommittee, or school board (Fuentes v. Bd. of Educ. of the City of N.Y., 569 F.3d 46 (2d Cir. 2009) and 12 N.Y.3d 309 (2009)).

 

An example would be in a court case that occurred in a federal appellate court with jurisdiction over New York. In this case, the court dismissed a lawsuit by a noncustodial parent that alleged the school district violated the Americans with Disabilities Act when it removed her child from public school and placed the child into a residential facility. The court found that the father had custody of the child, and had consented to the placement. They also determined that the child’s mother was precluded from establishing that the district acted with deliberate indifference to the student’s rights (Frank v. Sachem Sch. Dist., 633 Fed. Appx. 14 (2d Cir. 2016)).

 

However, even if a non-custodial parent has no decision-making authority, he or she may still participate in the child’s education. Even without specific provisions in a separation agreement, custody order, or divorce decree, non-custodial parents may still request information about, and remain interested in their child’s educational progress (Fuentes v. Bd. of Educ. of the City of

N.Y., 12 N.Y.3d 309 (2009); Taylor v. Vermont Dep’t of Educ., 313 F.3d 768 (2d Cir. 2002)).

 

 

Resolving Challenges

 

School districts who receive parental complaints are obligated to attempt to resolve these complaints by holding a resolution meeting before matters proceed to a hearing. This meeting must be attended by a district representative with decision making authority on behalf of the district. The purpose of a meeting such as this is to discuss the complaint and provide the district an opportunity to resolve it. This meeting must be held within 15 calendar days after the district’s receipt of the parents’ complaint, unless the parents and the school district agree to use mediation or waive the meeting on grounds of a mutual agreement in writing (20 USC §1415(f(1)(B)(i); 34 CFR § 300.510(a); 8 NYCRR § 200.5(j)(2)). If the parents and the district are unable to come to an agreement, and resolve the complaint within 30 days of the district’s receipt of the complaint, then matters may proceed to a due process hearing (20 USC § 1415(f)(1)(B)(ii); 34 CFR § 300.510(b), (c); 8 NYCRR § 200.5(j)(2)(v)).

 

Due Process Hearings

 

A due process hearing based on a parent complaint regarding the education of a child with a disability is conducted by an impartial hearing officer (IHO) who is appointed by the school board (20 USC § 1415(f)(1)(A),(3); 34 CFR § 300.511(b), (c)(3); Educ. Law § 4404(1); 8 NYCRR §§ 200.2(b)(9), 200.5(j)(3)(i), (ii)).

 

The impartial hearing officer may schedule a pre-hearing conference with the differing parties to either simplify, or clarity the issue. Other reasons for a pre-hearing conference may be to establish dates for the completion of the hearing, to identify evidence and witness, or to address any other administrative matters necessary to complete a timely hearing (8 NYCRR § 200.5(j)(3)(xi)). Both the parents and the school district will have up to one day to present their cases unless the hearing officer determines that additional time is necessary for a full, fair disclosure of the facts to arrive at a decision (8 NYCRR § 200.5(j)(3)(xiii)).

 

Impartial hearing officers are appointed by the school district on a rotation bases from a list provided by the NYS Education Department that is maintained in alphabetical order. The list is organized by the first name after the IHO who last served, or the first name on the list if no impartial hearing officer on the list has served (Educ. Law § 4404(1); 8 NYCRR §§ 200.2(e)(1), 200.5(j)(3)(i); NYS Education Department, Selection and Appointment of Special Education Impartial Hearing Officers (April 2015). More information can be found at:

 

http://www.p12.nysed.gov/specialed/publications/2015-memos/impartial-hearing-officers-memo-april-2015.pdf

 

This appointment process must commence immediately, but no later than two business days after the district receives a due process complaint notice (8 NYCRR § 200.5(j)(3)(i)(a)). According to the commissioner’s regulations, an impartial hearing officer may not accept an appointment if he or she is unable to:

 

  • make a determination regarding the sufficiency of a potential complaint notice within five days of receiving such a request, and:
  • if he or she is unable to begin the hearing within 14 days after either receiving a written waiver of the resolution meeting or notice off the parties’ inability to resolve their problems at the resolution, or the expiration of the 30-day period that started with the district’s receipt of the parent’s complaint, whichever occurs first (8 NYCRR § 200.5(j)(3)(i)(b), (iii)).

 

There are, however, restrictions on who may serve as an impartial hearing officer. For example, persons employed by a school district, school, or program that serves students with disabilities placed there by a committee on special education, are forbidden from serving as an impartial hearing officer while so employed. For individuals employed by such schools or programs serving students with disabilities placed there by a committee on special education, may not serve as an IHO. If an impartial hearing officer is unavailable, or becomes unable to continue with a hearing that is already in progress, a district must offer appointment to each successive IHO on the list. When an IHO declines appointment, fails to respond, or is unreachable within 24 hours after efforts to contact him, that are documented, independently verifiable, and reasonable (8 NYCRR § 200.2(e)(1)(ii)), the school board must rescind an IHO appointment and appoint a new IHO.

 

 

Limitations to the Authority of an Impartial Hearing Officer

 

An IHO may not use “sua sponte”, which means he or she may not, on his or her own, raise or make decisions on issues that were not identified in the due process complaint notice filed by the parents, or issues not otherwise address during the impartial hearing (Application of the [redacted] Dep’t of Educ, SRO dec. no. 09-024 (2009)).

 

For example, a hearing officer awarded tuition reimbursement to the parents of a student with disabilities because the parents asked the hearing officer to decide only on the stay-put placement of the student until they, and the district could come to an agreement on the appropriate placement. This was an improper decision made by the hearing officer because IHOs may not issue so-ordered decisions on the terms of a settlement agreement in matters that are not before the IHO in the due process complaint, or amended due process complaint (8 NYCRR § 200.5(j)(4)(iii).

 

Additionally, the U.S Court of Appeals for the Second Circuit, with jurisdiction over New York, determined that an impartial due process hearing is not the appropriate vehicle for enforcing a prior settlement agreement between parents and a school district under the Disabilities Education Act.

 

Appealing an Impartial Hearing Officer’s Decisions

 

Parents have the right to appeal an Impartial Hearing Officer’s decision to the state review officer (SRO) at the NYS Education Department’s Office of State Review in accordance with the provisions of Part 279 of the commissioner’s regulations (20 USC § 1415(g) 34CFR § 300.514(b); Educ. Law § 4404(2); 8 NYCRR § 200.5(k)). The State Review Officer’s decision may also be appealed should the parents disagree with his or her decision. Appeals are to the New York State Supreme Court or federal district court (20 USC § 1415(i)(2)(A); 34 CFR §§ 300.514(d); 300.516; Educ. Law § 4404(3); 8 NYCRR § 200.5(k)(3)). However, under New York’s two-tier administrative review process, individuals wishing to appeal a hearing officer’s decision may not progress directly to state or federal court without first appealing to the State Review Officer (Cave v. E. Meadow UFSD, 514 F.3d 240 (2d Cir. 2008)).

 

Statuses of Students with Disabilities While Proceedings are Taking Place

 

Unless the parent and school district agree otherwise, while proceedings are taking place while parents are challenging the classification, evaluation, and placement of a student with a disability, the student must remain in his or her current educational placement (20 USC §

1415(j), (k)(4)(A); 34 CFR §§ 300.518, 300.533). This is most often referred to “stay-put”. A school district can alter its stay-put obligations by providing additional services while the parent’s complaint is pending.

 

School District Liabilities

 

According to the U.S Court of Appeals for the Second Circuit, which has jurisdiction over New York, parents would be entitled to having their accrued attorney fees paid for by the school district if they are a “prevailing defendant”. However, the court did not specify, nor set any standard for determining whether a prevailing defendant parent should be awarded such fees (Mr. L. v. Sloan, 449 F.3d 405 (2d Cir. 2006)).

 

Additionally, school districts may be liable for a parent’s attorney fees even if the parents were represented by a publicly funded attorney (Yankton Sch. Dist. v. Schramm, 93 F.3d 1369 (8th Cir. 1996)).

 

However, there are limitations to the grounds that justify the recovery of attorney fees. A parent’s attorney fees may not be awarded for an attorney’s attendance at a committee on special education meeting, unless it is covered as a result of an administrative proceeding or judicial action (20 USC § 1415(i)(3)(D)(ii), (iii); 34 CFR § 300.517(c)(2)(ii), (iii)).

 

Additionally, according to the U.S Supreme Court, the individuals with Disabilities Education Act does not authorize prevailing parents to recover fees for services rendered by experts in IDEA actions, including the services of an additional consultant (Arlington CSD Bd. of Educ. v. Murphy, 548 U.S. 291 (2006)).

 

Additional Information

 

Parents of a child with a disability are entitled to an independent educational evaluation of their child at a public expense if they disagree with the evaluation obtained by the school district (20 USC § 1415(b)(1); 34 CFR § 300.502(a); 8 NYCRR § 200.5(g)(1). An independent educational evaluation consists of an individual evaluation of a student conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student (8 NYCRR § 200.1(z)).

 

When independent education evaluations are at a public expense, they are subject to the same criteria that the school district would use in their own evaluation, including the location of the evaluation, and the qualifications of the examiner (34 CFR § 300.502(a)(2), (e); 8 NYCRR §§ 200.1(z), 200.5(g)(1)(ii)).

 

When it comes to parents challenging decisions made by a CSE or school district, it is important to know the details that are involved in the often tumultuous process. 

 

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Angel A. Castro, III, Esq.

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