The State Education Department
State Review Officer

No. 04-030

 

 

 

 

 

 

Application of a CHILD WITH A DISABILITY, by his guardian, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Springville-Griffith Institute Central School District

 

 

Appearances:
O’Hara & O’Connell, attorney for respondent, Stephen Ciotoli, Esq., of counsel

 

 

DECISION

 

            Petitioner appeals from the decision of an impartial hearing officer that dismissed her request for a hearing on the grounds that she lacked standing to request an impartial hearing on behalf of the student.  The appeal must be sustained in part.

 

The central question raised in this appeal is whether the impartial hearing officer erred in determining that the guardian of a 17-year-old special education student lacked standing to request a due process hearing to dispute the student’s educational program.  I find the impartial hearing officer’s determination erroneous. 

 

On June 24, 2003, respondent’s Committee on Special Education (CSE) developed an individualized education program (IEP) for the student for the 2003-04 school year (Exhibit A, Attachment 1).1  The CSE recommended placement at a 12:1+1 half-day special class and vocational education, along with counseling twice a week and transportation.  The IEP lists petitioner as the student’s legal guardian (Exhibit A, Attachment 1).  The student resided temporarily outside of respondent’s district from June 2003 to December 10, 2003 (April 23, 2004 Transcript pp. 30-31).  Upon the student’s return to the district, petitioner requested that respondent implement the 2003-04 IEP (Exhibit A, Attachment 2).  Respondent asserts that it was unable to implement the IEP placement upon the student’s return to the district because there were no vacancies remaining in the class that the CSE recommended (Exhibit A, Attachment 3).  As an alternative, in February 2004, respondent offered the student tutoring at the high school 2.5 hours per day with transportation until an alternative program could be established (April 22, 2004 Transcript pp. 20, 67; Exhibit A, Attachments 4, 8).  The record does not indicate that respondent’s offered alternative educational program was developed at a CSE meeting. Petitioner rejected respondent’s offer of a tutoring program (Exhibit A, Attachment 5).  

 

            On February 20, 2004, petitioner requested a hearing alleging that respondent failed to provide the student with a free appropriate public education (FAPE) as required under the Individuals with Disabilities Education Act (IDEA) (see 20 U.S.C. § § 1400-1451 [1997]) (April 22, 2004 Transcript pp. 2-3).  On February 26, 2004 and March 9, 2004, respondent received information that the student no longer resided with petitioner (April 22, 2004 Transcript pp. 36, 46-47, 60-62; Exhibit 1).  In response to this information, relying on its interpretation of the McKinney-Vento Homeless Assistance Act (41 U.S.C. § 11431, et seq.), respondent determined that the student was a homeless youth and appointed a “local educational agency liaison for homeless children and youths” (homeless liaison) for the student (April 22, 2004 Transcript pp. 58-59, 64).  The liaison testified that his function was to “set up” educational programs for students who become homeless (April 22, 2004 Transcript p. 59).  Respondent made the determination that the student was homeless and made the appointment of the homeless liaison without contacting petitioner (April 23, 2004 Transcript pp. 21-23; April 22, 2004 Transcript pp. 69-70, 95).  In a March 9, 2004 CSE meeting notice to petitioner, respondent advised that the liaison would be attending the next CSE meeting and would “assist…in placement and/or enrollment decisions…and…in determining [the student’s] educational program” (District Exhibit 4).  Upon notification of the appointment, petitioner denied that the student was homeless (April 22, 2004 Transcript pp. 71, 79).

 

Prior to the start of the hearing, on March 26, 2004, respondent made a motion to dismiss the hearing arguing that petitioner and her husband lacked standing to request a hearing on behalf of the student (Exhibit 1).  Respondent asserted in its motion that by operation of the McKinney-Vento Homeless Assistance Act (McKinney Act) (41 U.S.C. § 11431, et seq.) the appointment of a homeless liaison for the student vitiated the guardianship as to matters affecting the student’s education (District Exhibit 1; April 22, 2004 Transcript pp. 146-155, April 23 Transcript pp. 143-161).  Petitioner argued that the McKinney Act did not terminate parental due process rights under the IDEA, nor did the student qualify as a homeless or unaccompanied youth under the statute (April 23, 2004 Transcript pp. 126-142).

        Testimony was taken at the impartial hearing on April 22, 2004 and April 23, 2004.  The impartial hearing officer limited the hearing to the issue of whether petitioner and her husband had standing to bring a hearing request on behalf of the student (April 22 2004 Transcript pp. 5, 10).  It is uncontroverted that at the time of the hearing the student was 17 years old (Exhibit A, Attachments 1, 11) and that petitioner and her husband were the legal guardians of the student (April 22, 2004 Transcript p. 152; April 23, 2004 Transcript p. 107).2

         The hearing officer rendered a decision on May 5, 2004 finding that petitioner and her husband did not have standing to bring a hearing request on behalf of the student by operation of the McKinney-Vento Homeless Assistance Act.  On June 3, 2004, petitioner filed a timely appeal of the hearing officer's decision.3  Petitioner requests that the hearing officer’s decision be annulled and remanded to another hearing officer, or, in the alternative, that the State Review Officer decide the pendency placement of the student and remand the matter for a new hearing on the denial of FAPE claim. 

        The IDEA was enacted to assure that all children with disabilities have available to them a FAPE and to assure that the rights of children with disabilities and their parents or guardians are protected (20 U.S.C. Section 1400 [d]).  The IDEA requires that a FAPE be available for all children with disabilities between the ages of three and 21 (20 U.S.C. Section 1412 [a][1][A]).  The IDEA also sets forth procedural safeguards with respect to the provision of a free and appropriate public education which include the requirement that parents must be given an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education (20 U.S.C. Section 1415 [b][6]). The plain language of 20 U.S.C. Section 1415 (f)(1) provides that the "parents shall have an opportunity for an impartial due process hearing." These procedural safeguards guarantee parents both an opportunity for meaningful input into all decisions affecting their child’s education and the right to seek review of any decisions they think inappropriate (Honig v. Doe, 484 U.S. 305, 311-312 [1988]).

 

The IDEA includes legal guardians within the definition of a parent (see 20 U.S.C. 1401 [19][A]; 34 C.F.R. 300.20 [a]).  However, state law should also be examined to further determine eligibility to act as a parent under the IDEA (see Taylor v. Vermont Department of Education, 313 F.3d 768, 778-779 [2d Cir. 2002]).

 

            The Regulations of the Commissioner of Education define a parent as “a natural or adoptive parent, a guardian [or] a person in parental relationship to the child as defined in Education Law § 3212” (8 NYCRR 200.1[ii]), which in turn states that “a person in parental relation to another individual shall include his father or mother, by birth or adoption, his step-father or step-mother, his legally appointed guardian, or his custodian” (Education Law § 3212 [1]).

 

            Upon examining the record before me, it is clear that petitioner was the legal guardian of the student, and accorded the right to act on his behalf, at the time petitioner filed the hearing request (see Exhibit A, Attachments 6, 9). 

 

Further, I am not persuaded by the record that the student was homeless at the time this hearing was requested.  Petitioner had a long, on-going involvement in the education of the student, which was known to the respondent (April 22, 2004 Transcript pp. 40-41, 72).   The student left petitioner’s home on January 26, 2004 and was initially not in contact with petitioner for approximately ten days (April 23, 2004 Transcript pp. 6-7).  Petitioner denies that there was conflict at home that caused the child to leave or that the child was asked to leave the home (April 22, 2004 Transcript p. 83).  After the initial ten days, the student resided with petitioner off and on, staying with friends when not at home (April 22, 2004 Transcript p. 79).  Petitioner was in daily contact with the student (April 22, 2004 Transcript p. 92).  The student often came home for dinner and on weekends to visit siblings (April 22, 2004 Transcript p. 99).  Petitioner provided the student with money (April 22, 2004 Transcript p. 94; April 23, 2004 Transcript p. 13).  The student had a bedroom that contained his possessions at petitioner’s home and received his mail at petitioner’s address (April 22, 2004 Transcript p. 98), which included correspondence from respondent (April 22, 2004 Transcript pp. 53-54, 103).  Petitioner met the student at the homes of his friends’ families to bring him clothes and to take him shopping or for a haircut  (April 22, 2004 Transcript p. 81).

 

I find no basis in the record supporting the proposition that petitioner’s rights under the IDEA were altered or limited, or that the guardianship relationship was extinguished, at the time petitioner filed a hearing request.  Further, respondent has not cited any legal authority, whether in statute or caselaw, that persuades me that the McKinney Act requires me to find that petitioner lacked standing.  Accordingly, petitioner, as the legal guardian of the student, had standing to request an impartial hearing on behalf of the student on February 20, 2004. 

 

I note that respondent has raised an argument on appeal asserting that petitioner does not have standing to bring an appeal before a State Review Officer on the student’s behalf because the guardianship has recently expired as a result of the student turning 18 years of age.  I am unwilling to dismiss the appeal on that basis in the absence of a showing that petitioner is not acting in a parental capacity under other criteria found in 34 C.F.R. 300.20 [a] or Education Law § 3212 (1).

 

I find that the hearing officer erred in not making a pendency placement determination pertaining to the 2003-04 school year. 

 

Lastly, I have considered petitioner's contention that the hearing officer engaged in conduct that constitutes misconduct or incompetence and find it to be without merit.

 

            THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

           

IT IS ORDERED that the hearing officer’s decision is hereby annulled; and

 

IT IS FURTHER ORDERED that petitioner’s request for a hearing on behalf of the student is reinstated and that, unless the parties otherwise agree, the matter shall be remanded to the impartial hearing officer below, and a hearing shall be held to consider the complaint raised by petitioner in the hearing request that was dismissed.

 

 

 

Dated:

Albany, New York

 

__________________________

 

July 9, 2004

 

PAUL F. KELLY

STATE REVIEW OFFICER

 

 

1  The student’s prior educational history is discussed in Application of a Child with a Disability, Appeal No. 03-011, and familiarity with the facts in that decision will be assumed.

 

2  Petitioner is the student’s great-aunt (April 22, 2004 Transcript p. 78).  On September 28, 1993, when the student was seven years old, petitioner and her husband were appointed the legal guardians of the student by the Erie County Surrogate’s Court “…until he arrives at the age of eighteen years, hereby requiring you [petitioner and her husband] to be said guardian[s], to maintain lawful control, custody and jurisdiction over the person of said infant and to be accountable at all time for the care, welfare and education of said infant in accordance with the laws of the State of New York until such time as said infant arrives at the age of eighteen years…” (Exhibit A, Attachment 9).

 

3  Petitioner attached seven exhibits to her petition which were not entered into evidence at the hearing.  Respondent objects to their submission.  A State Review Officer may consider additional evidence if it is not available at the hearing or such evidence is necessary to enable him or her to render a decision (Application of the Bd. of Educ., Appeal No. 03-062; Application of a Child with a Disability, Appeal No. 02-098).  I find that these exhibits were available to petitioner before the hearing (with the exception of Exhibit VI, which is correspondence created by petitioner after the hearing).  Moreover, these documents are not necessary to enable me to make a decision.  Therefore, I will exercise my discretion and not consider the seven exhibits attached to the petition.