The University of the State of New York Seal
The State Education Department
State Review Officer

No. 06-065

   

 

 

Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Williamsville Central School District

 

 

Appearances:

Harris Beach PLLC, attorney for respondent, Alfred L. Streppa, Esq., of counsel

DECISION

            Petitioner appeals from the decision of an impartial hearing officer granting respondent's motion to dismiss petitioner's due process complaint notice dated January 30, 2006 in its entirety.  The appeal must be dismissed.

            A decision involving the same student and parties, Application of a Child with a Disability, Appeal No. 06-027, was issued on May 10, 2006.  That decision dismissed petitioner's appeal after finding that respondent offered the student a free appropriate public education (FAPE) for the 2005-06 school year and concluding that principles of estoppel and res judicata prevented petitioner from relitigating issues or claims that could have been raised in a prior impartial hearing where the parties had entered into a settlement agreement dated March 4, 2005 (Application of a Child with a Disability, Appeal No. 06-027).  The impartial hearing that was the subject of Application of a Child with a Disability, Appeal No. 06-027 occurred on January 25 and 26, 2006 (id.).

            Relating to the present appeal, on or about January 30, 2006, petitioner filed a due process complaint notice requesting an impartial hearing (IHO Ex. I).  The due process complaint notice set forth 36 numbered paragraphs of allegations describing various actions or inactions of respondent during the time period of October 5, 1999 to January 24, 2006 (id. at pp. 3-8).1  Petitioner asserted that respondent retaliated against petitioner and the student, and that respondent failed to offer the student a FAPE (id. at p. 3).  As a proposed resolution, petitioner requested reimbursement for unspecified expenses that she incurred as a result of the alleged violations, sought compensatory and punitive money damages, and requested that the New York State Department of Education and respondent be sanctioned (id. at p. 2).  At the time of petitioner's request for an impartial hearing in January 2006, the student was 18 years old and attending respondent's South High School (id. at p. 1).  The student's eligibility for special education programs and services as a student with multiple disabilities is not in dispute (see 8 NYCRR 200.1[zz][8]). 

By letter dated February 10, 2006, respondent notified the impartial hearing officer that it believed petitioner's due process complaint notice was insufficient and requested that the impartial hearing officer make a determination on its sufficiency (IHO Ex. II; see 8 NYCRR 200.5[i][6]).  Respondent asserted in its letter, among other arguments, that petitioner did not comply with the requirements of Section 200.5(i)(1) of the Regulations of the Commissioner of Education because petitioner failed to raise allegations relating to the identification, evaluation or educational placement of the student, or the provision of a FAPE to him (IHO Ex. II at p. 1).  The impartial hearing officer determined that the due process complaint notice was sufficient after finding that it met all the requirements of section 200.5(i)(1) of the state regulations because it identified the student's name, the student's address, the school that the student is attending, a description of the nature of the problem,2 and a proposed resolution (IHO Ex. III).

A prehearing conference was held on March 27, 2006 (Tr. p. 1).  At the prehearing conference, petitioner requested that the impartial hearing officer recuse himself, asserting that the hearing officer was biased and prejudiced against her as demonstrated by his conduct leading up to the impartial hearing (Tr. pp. 25-31).  The impartial hearing officer heard petitioner's argument and denied petitioner's request for recusal (Tr. p. 39).  He rejected petitioner's argument that he was prejudiced because he telephoned her on one occasion at 8:20 p.m. after failed attempts to contact her earlier in the day (Tr. pp. 29-31, 36-39; see IHO Exs. XXV, XXVI).  He referred to his letter dated March 6, 2006 where he explained to petitioner that he had contacted her outside business hours for the purpose of scheduling a telephone conference to discuss her extension request, and indicated that he would respect her wishes to contact her by telephone in the future only between the hours of 9:00 a.m. and 5:00 p.m. (Tr. pp. 36-38; IHO Ex. XXVI).  He stated at the prehearing conference, "I think that there may have been misunderstandings and obviously I upset [petitioner] by that 8:30, or 8:20 actually, p.m. communication.  But I don't feel I am prejudice[d] in this regard.  I don't think that, that situation, you know, concerned the merits in the case in any way.  I really haven't drawn any inferences from that whole situation, which I would hold against [petitioner]" (Tr. pp. 39-40).  He also provided petitioner an opportunity at the prehearing conference to be heard on the issue of respondent's request to consolidate an impartial hearing initiated by respondent with petitioner's due process complaint notice (Tr. pp. 40-68).  The impartial hearing officer explained that he never intended to decide respondent's request for consolidation of the two hearings without providing petitioner an opportunity to be heard, contrary to petitioner's assertion otherwise (Tr. pp. 27-29, 33-35, 40-44; see IHO Ex. VIII).  The record indicates that the impartial hearing officer denied respondent's request for consolidation.3 

            On March 30, 2006, respondent submitted a motion to dismiss petitioner's due process complaint notice dated January 30, 2006 in its entirety, asserting that every allegation raised in petitioner's due process complaint notice was beyond the subject matter jurisdiction of the impartial hearing officer (see Motion to Dismiss and Enclosures).  For each allegation set forth in petitioner's due process complaint notice, respondent identified one or more reasons, as detailed below, why the allegation was beyond the jurisdiction of the impartial hearing officer.  Specifically, respondent asserted that the impartial hearing officer lacked jurisdiction to take the following actions: (1) award money damages or punitive damages; (2) sanction respondent or the New York State Department of Education; (3) address issues barred by the two-year statute of limitations in section 200.5(j)(1)(i) of the state regulations; (4) address petitioner's claims of retaliation and/or harassment; (5) address issues that could have been raised or were addressed in prior impartial hearings; (6) address issues related to the scheduling of related services that are left to the discretion of a school district; and (7) enforce the terms of a settlement agreement that the parties entered into on March 4, 2005. 

            By letter dated May 3, 2006, petitioner opposed respondent's motion to dismiss (see Response to Motion to Dismiss and Enclosures).  She argued, inter alia, that she "must be allowed to exhaust [her] administrative remedies" and "to make a record"; that respondent committed procedural violations precluding her ability "to address violations in a timely manner"; and that pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure she should be allowed to proceed to an impartial hearing unless it appears beyond a doubt that she can prove no set of facts to support her claims (id. at pp. 1-3). 

            In a decision dated May 22, 2006, the impartial hearing officer granted respondent's request to dismiss petitioner's due process complaint notice dated January 30, 2006 in its entirety.  The thorough and well-reasoned 18-page decision summarized the allegations raised in the 36 numbered paragraphs of petitioner's due process complaint notice (see IHO Decision, pp. 4-14), summarized the legal arguments made by respondent in support of its motion to dismiss each and every allegation (see IHO Decision, pp. 3-14), and summarized petitioner's legal arguments submitted in opposition to respondent's motion to dismiss (see IHO Decision, pp. 14-15).  The impartial hearing officer explained his reasons for finding petitioner's arguments unavailing and for finding respondent's legal grounds for dismissal of the complaint persuasive (see IHO Decision, pp. 3, 14-17).  Due to the order of dismissal, an impartial hearing was never held on the merits of petitioner's claims against respondent. 

On appeal, petitioner asserts wide-ranging allegations against the impartial hearing officer, including claims of bias, prejudice, harassment, discrimination, disparate treatment, ex parte communications, "illegal rulings," and incompetence.  The petition requests relief as follows:  "The decision should be reverse petitioners due process complaint remand back to a hearing with an 'impartial' partial hearing officer presiding" (sic) (Pet. 32).  Respondent requests that the petition be dismissed in its entirety, asserting that there is no support in the record for petitioner's contention that the impartial hearing officer exhibited bias, prejudice or incompetence, and that petitioner has neither sought a reversal of the impartial hearing officer's decision dismissing the due process complaint notice nor alleged any legal basis for reversal.

Preliminarily, I address a procedural issue raised by petitioner in its reply.4  Petitioner requests that I reject respondent's memorandum of law for failure to conform to part 279 of the state regulations.  The state regulations provide that the memorandum of law shall not exceed 20 pages in length and shall contain a table of contents (8 NYCRR 279.8[a][5], [6]), and specifically state that documents that fail to comply with these requirements may be rejected in the sole discretion of the State Review Officer (8 NYCRR 279.8[a]; Application of the Bd. of Educ., Appeal No. 04-080).  Petitioner asserts that the memorandum of law that respondent submitted at the time of its answer exceeds 20 pages in length and fails to include a table of contents.  Respondent's memorandum of law dated July 17, 2006 consists of five pages, and although the original submission did not contain a table of contents, respondent subsequently provided the State Review Officer with a table of contents.  In the exercise of my discretion, I decline petitioner's request to reject respondent's memorandum of law; however, I remind respondent's counsel to ensure compliance with Part 279 of the state regulations in the future.

Turning to the substantive issues raised by petitioner on appeal, I find that the majority of the allegations in the petition concern the impartial hearing officer's conduct, as opposed to the merits of the impartial hearing officer's decision.  I do note that petitioner makes a reference to appealing the "findings, conclusions, and failings of the hearing officer" (Pet. 6), and therefore, I will also address the merits of the impartial hearing officer's decision.  After thoroughly reviewing the petition and petitioner's multiple assertions regarding the impartial hearing officer's rulings and conduct, and, as detailed below, upon a review of the record as a whole, I find that petitioner's assertions are not supported by the record.

An impartial hearing officer must be fair and impartial and must avoid even the appearance of impropriety or prejudice (see Application of a Child with a Disability, Appeal No. 06-039; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 04-010; Application of a Child Suspected of Having a Disability, Appeal No. 03-071), and must render a decision based on the record (see Application of a Child with a Disability, Appeal No. 00-063; Application of a Child Suspected of Having a Disability, Appeal No. 00-036; Application of a Child with a Disability, Appeal No. 98-55).  A hearing officer, like a judge, must be patient, dignified and courteous in dealings with litigants and others with whom the hearing officer interacts in an official capacity and must perform all duties without bias or prejudice against or in favor of any person, and shall not, by words or conduct, manifest bias or prejudice, according each party the right to be heard (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child Suspected of Having a Disability, Appeal No. 01-021; see 8 NYCRR 200.1[x]; see also 22 NYCRR 100.3[B]; New York State Unified Court System Standards of Civility, 22 NYCRR Part 1200, Appendix A [1997]).  At all stages of the hearing, a hearing officer may assist an unrepresented party by providing information relating only to the hearing process (8 NYCRR 200.5[j][3][vii]).  State regulations do not impair or limit the authority of an impartial hearing officer to ask questions of counsel or witnesses for the purpose of clarification or completeness of the record (id.).

Upon careful review of the record, I find that there is no evidence that the impartial hearing officer displayed bias or prejudice against petitioner.  Petitioner proceeded pro se (Tr. pp. 2, 9-10, 81, 110, 133-34).  The record reveals that before the prehearing conference, the impartial hearing officer made a ruling about the sufficiency of the due process complaint notice that favored petitioner (see IHO Ex. III).  By letter dated April 4, 2006, he denied respondent's request to consolidate two hearings (Pet. Ex. F; Ans. Ex. A).  The transcript of the prehearing conference demonstrates that the impartial hearing officer acted appropriately and evenhandedly in accommodating and addressing petitioner's various requests and concerns throughout the prehearing conference.  He repeatedly provided her with opportunities to be heard whenever she raised a concern, including when she raised allegations of bias (see Tr. pp. 25-31, 38-39, 40-44, 89-91, 96-100, 101, 111-15, 125-29, 134-42, 146-47, 150, 162, 164).  He also attempted to discuss each of the 36 numbered paragraphs of the due process complaint notice with the parties for the stated purpose of clarifying or simplifying the issues (Tr. pp. 68-95); however, petitioner repeatedly stated that she would "not testify" at the prehearing conference and asserted that all 36 paragraphs raised "legitimate allegations" that should proceed forward to an impartial hearing (Tr. pp. 74-77, 79, 81-82, 87, 100, 106-07).  The record reveals that the impartial hearing officer remained courteous at all times, treated petitioner with respect, and went to great efforts to explain his rationale for his rulings and decisions (see Tr. pp. 33-38, 39-40, 109-10, 130-34, 136, 142, 154-57, 172).  Based on the foregoing, I find no evidence to support petitioner's contentions that the impartial hearing officer acted with bias.  Although petitioner disagrees with the conclusions reached by the impartial hearing officer, that disagreement does not provide a basis for finding actual or apparent bias by the impartial hearing officer (Application of a Child with a Disability, Appeal No. 06-035; Application of a Child with a Disability, Appeal No. 06-013; Application of a Child with a Disability, Appeal No. 96-03; Application of a Child with a Disability, Appeal No. 95-75).

I also note that the record reveals that petitioner has demonstrated a pattern of requesting impartial hearings and then demanding that the appointed impartial hearing officers recuse themselves (see IHO Ex. XXX; Motion to Dismiss and Enclosures).  I caution petitioner that both the Commissioner of Education and the State Review Officer have consistently taken a strong position against improper acts of judge shopping by either school districts or parents (Application of a Child with a Disability, Appeal No. 04-061 [explaining that "attempts at judge shopping are a misuse and manipulation of the administrative process, as well as a improper use of time, money, and resources more appropriately spent on providing proper services to students with disabilities"]; Application of a Child with a Handicapping Condition, 29 Ed Dept Rep 138, 143, Decision No. 12,246 ["it is important to underscore that my ruling does not imply that petitioners can abuse their right to withdraw their request for an impartial hearing as a means of forum shopping until the school district appoints a hearing officer acceptable to the petitioners"]; Application of a Child with a Disability, Appeal No. 01-037 [petitioner's withdrawal and then refiling of a due process request on the same issues with a different hearing officer results in dismissal of claims]; Application of a Child with a Disability, Appeal No. 00-049 [petitioner's attempt to reargue claims that were withdrawn in a prior hearing results in dismissal of claims]).

To the extent that petitioner appears to be asserting claims against the New York State Department of Education on this appeal, I decline to address such claims.  A State Review Officer does not have jurisdiction to review the actions of any officer or employee of the State Education Department (8 NYCRR 279.1[c][2]).

Based upon my review of the record and the thorough and well-reasoned decision of the impartial hearing officer, I find that the prehearing conference was conducted in a manner consistent with the requirements of due process, and that there is no need to modify the determination of the impartial hearing officer (34 C.F.R. 300.510[b][2]; N.Y. Educ. Law 4404[2]).  I find that the decision of the impartial hearing officer evidences that he carefully reviewed the allegations contained in the due process complaint notice, respondent's motion to dismiss, and petitioner's response to the motion to dismiss; and applied a proper legal analysis in ordering the dismissal of petitioner’s due process complaint notice dated January 30, 2006.  I, therefore, adopt the impartial hearing officer’s decision and order of dismissal.

            I have considered petitioner's remaining contentions and I find them to be without merit.

            THE APPEAL IS DISMISSED.

Dated:

Albany, New York

 

__________________________

 

August 28, 2006

 

PAUL F. KELLY
STATE REVIEW OFFICER

 

1 Petitioner also raised in the due process complaint notice allegations against respondent's attorney, the New York State Department of Education, and previous impartial hearing officers, and petitioner asserted that these parties along with respondent retaliated against petitioner and the student (IHO Ex. I at p. 3). 

 

2 A description of the nature of the problem must include notice of the facts relating to the problem (8 NYCRR 200.5 [i][1][iv]; see 20 U.S.C. 1415[b][7][A][III]; New York State Education Department, Sample Due Process Complaint Notice Form To Request An Impartial Hearing (http://www.vesid.nysed.gov/specialed/publications/policy/dueprocess7105.htm).  A party may not have a due process hearing until the party or the attorney representing the party, files a due process complaint notice that meets the requirements of  20 U.S.C. 1415[b][7][A][ii] (20 U.S.C. 1415[b][7][B]).  Moreover, under the new amendments to the Individuals with Disabilities Education Act (IDEA), which became effective July 1, 2005, (see Individuals with Disabilities Education Improvement Act of 2004, Pub. L. No. 108-446, 118 Stat. 2647 [2004] [codified as amended at 20 U.S.C. 1400-1482]), the party requesting an impartial hearing may not raise issues at the impartial due process hearing that were not raised in his original due process complaint unless the original complaint is amended prior to the hearing by permission of the hearing officer not later than five days before the due process hearing occurs (20 U.S.C. 1415[c][2][E]), or the other party otherwise agrees (20 U.S.C. 1415[f][3][B]).  The Senate Report pertaining to this new amendment to the IDEA noted that although a due process complaint notice need not "reach the level of specificity and detail of a pleading or complaint filed in a court of law, "the purpose of the sufficiency requirement is …to ensure that the other party, which is generally the school district, will have an awareness and understanding of the issues forming the basis of the complaint" (S. Rep. 108-185, Individuals with Disabilities Education Act Senate Report No. 108-185, "Notice of Complaint", [November 3, 2003]).

 

3 At the prehearing conference, petitioner objected to respondent's request for consolidating the two hearings (see Tr. pp. 40-68).  The impartial hearing officer reserved decision (Tr. p. 65).  By letter dated April 4, 2006, the impartial hearing officer found that consolidation would not serve the interests of judicial economy, and therefore denied respondent's request for consolidation and recused himself from presiding over the impartial hearing initiated by respondent (Pet. Ex. F, Ans. Ex. A).

 

4 Respondent claims that petitioner’s reply to its answer exceeds the permissible scope of a reply, and requests that I reject the reply.  State regulations limit the scope of a reply to "any procedural defenses interposed by respondent or to any additional documentary evidence served with the answer" (8 NYCRR 279.6). I will accept the reply, but will not consider any additional arguments not related to procedural defenses or to claims that were not raised before the impartial hearing officer (Application of the Bd. of Educ., Appeal No. 06-069; Application of the Bd. of Educ., Appeal No. 01-012).