NYSED/SUNY Emblem
The State Education Department
State Review Officer

No. 06-109

 

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

 

Appearances:

Law Office of Andrew K. Cuddy, attorney for petitioner, Andrew K. Cuddy, Esq., of counsel

Hogan, Sarzynski, Lynch, Surowka & DeWind, LLP, attorney for respondent, Edward J. Sarzynski, Esq., of counsel

DECISION

            Petitioner appeals from a decision of an impartial hearing officer which determined that the issues raised in petitioner's due process complaint notice had been resolved and that the educational program respondent's Committee on Special Education (CSE) had recommended for her daughter commencing May 26, 2006 and for the following year was appropriate.  The appeal must be dismissed.

            At the time of the impartial hearing on June 27, 2006, the child was ten years old and had just completed the fourth grade at respondent's intermediate school.  On May 24, 2006, respondent's CSE classified the child as a student with a learning disability and the child's classification is not in dispute on this appeal (8 NYCRR 200.1[zz][6]).

            On appeal, the parties do not dispute that the child suffers from an attention deficit hyperactivity disorder (ADHD), dyslexia and various physical ailments and suffers from a language-based learning disability in reading.  The child has always attended respondent's schools and has struggled for years in school, repeating the second grade.  She was screened by respondent in June of 2004 and began receiving compensatory reading services in third grade.

            During the 2005-06 school year, the child was attending the fourth grade at respondent's intermediate school.  In November 2005, petitioner referred the child to respondent's CSE.  Respondent's school psychologist evaluated the child in November 2005 and issued her report in January 2006, which concluded that the child did not meet the criteria for classification as a student with an educational disability.  The report made recommendations for support to address multiple factors that the school psychologist found were responsible for the child's generalized academic problems, which included excessive school absences and motivation and engagement difficulty in school.  At a CSE meeting on February 6, 2006, the CSE did not classify the child as a student with a disability.

            In March 2006, petitioner obtained a private evaluation of the child from an educational diagnostician (Dist. Ex. 14).  The private evaluation report noted that the child displayed patterns and deficiencies of a developmental or specific reading disability (phonological dyslexia) and that the child displayed characteristics of a child with ADHD, inattentive type (Dist. Ex. 14 at pp. 3, 11).  Petitioner referred the child to respondent's CSE again after receiving this report.  On April 24, 2006, a CSE meeting was convened and the CSE did not classify her as a student with a disability.

            On May 3, 2006, petitioner through her attorney submitted a "Demand for a Due Process Hearing" (Parent Ex. A).  The demand listed five bases for the request:  1) failure to comply with "child find" and to provide a free appropriate public education (FAPE); 2) failure to provide a FAPE has resulted in the need for corrective services; 3) failure to conduct appropriate evaluations when the child was initially referred to the CSE; 4) failure to properly conduct the February 6, 2006 CSE meeting; and 5) failure to provide a functional behavioral assessment (FBA) and a behavioral intervention plan (BIP) (id.).  The demand requested attorneys' fees and expenses (id.).

            On May 19, 2006, the parties held a resolution session.  Respondent agreed to convene a CSE meeting and to resolve all of the five above-listed alleged failures referenced in petitioner's May 3, 2006 demand, but respondent did not agree to pay attorneys' fees.  No written settlement agreement was signed at the resolution session.

            On May 24, 2006, respondent's CSE convened with petitioner present in person and with a representative from her attorney's office present by telephone.  After the meeting, both petitioner and respondent believed that all of petitioner's concerns had been addressed. The parties agreed that the individualized education program (IEP) would begin immediately despite the fact that the Board of Education had not yet formally approved it.  On May 25, 2006, petitioner's attorney indicated that all substantive issues in the case had been resolved, but indicated his intent to proceed with an impartial hearing because respondent continued to refuse to pay his attorneys' fees (Dist. Ex. 33; see also Dist. Ex. 38).  On June 13, 2006, the Board of Education approved the IEP.

            On June 2, 2006, respondent made a motion to the impartial hearing officer to dismiss the hearing on the basis that petitioner's requests for relief had been met by respondent (Dist. Exs. 44, 45).  On June 6, 2006, petitioner opposed respondent's motion and cross-moved for summary judgment, on the basis that respondent had conceded a child find violation and a denial of FAPE (Dist. Ex. 55).  Petitioner's attorney also noted his belief that documents attached to respondent's motion, which were related to the resolution session, were confidential because they were related to settlement (id.).

            On or about June 6, 2006, respondent faxed to petitioner's attorney a copy of the proposed IEP that was prepared based upon the May 24, 2006 CSE meeting (Tr. p. 127; Dist. Ex. 54).  The record reflects that petitioner's attorney was in receipt of the proposed IEP no later than June 7, 2006 (Pet. ¶ 44; Dist. Ex. 65). 

            On June 7, 2006, the impartial hearing officer denied petitioner's cross-motion for summary judgment and did not issue a decision on respondent's motion, although she stated that she "tentatively" granted respondent's motion (Dist. Ex. 58).

            On June 8, 2006, petitioner's attorney indicated to the impartial hearing officer that he had objections to the proposed IEP and wanted the impartial hearing to proceed (Dist. Ex. 65).  On several occasions over the following weeks, respondent offered to reconvene the CSE to revise the IEP to address petitioner's objections (Dist. Exs. 69, 73, 87).

            On June 8, 2006, petitioner requested that the impartial hearing officer recuse herself based upon the fact that she had become privy to settlement negotiations of the parties (Dist. Ex. 71).  Respondent opposed the request on the basis that resolution sessions are not confidential (id.).  The impartial hearing officer denied the request (IHO Decision, p. 6).

            On June 15, 2006, in response to a request from the impartial hearing officer for clarification of petitioner's objections to the proposed IEP, petitioner provided the following four numbered bases for her objections:  1) the reading goals are inadequate and there are no social skills goals or provision for counseling; the reading teacher is not adequately trained in the Wilson Reading Program (Wilson); 2) petitioner only intended to agree to this IEP as a pendency placement, pending the outcome of the impartial hearing, and not for a full year; 3) 20 hours of corrective services are not substantial enough; and 4) the child has not been administered a BIP or an FBA (Dist. Ex. 82).  Respondent offered to revise the IEP to the extent petitioner felt it did not reflect the parties' prior agreements at the resolution session and the CSE meeting on May 24, 2006 (Dist. Ex. 87).  Respondent objected to allowing petitioner to amend her initial hearing request, noting that the IEP was not in existence at that time, and asserted that all of petitioner's concerns in the hearing request had been addressed (Dist. Ex. 83).

            On June 21, 2006, the impartial hearing officer denied respondent's motion to dismiss on the basis that it was not clear that all issues raised in petitioner's hearing request had been addressed (Dist. Ex. 91, at p. 6).  The impartial hearing officer ordered the impartial hearing to commence on June 27, 2006 and noted that it would be limited to the four issues raised in petitioner's June 15, 2006 letter (id.). 

            The impartial hearing was held on June 27, 2006.  Both parties entered exhibits into evidence.  Petitioner objected to any resolution session-related documents being entered into evidence.  The impartial hearing officer allowed such documents into evidence.  Respondent's Director of Special Education testified on behalf of respondent.  Respondent's school psychologist was called as a witness by petitioner.  Petitioner also entered an affidavit sworn to by petitioner on June 27, 2006 into evidence in lieu of petitioner's testimony (Parent Ex. X).  The record reflects that petitioner was unavailable to testify due to employment constraints (Tr. pp. 12-15).  Petitioner's attorney set forth the arguments made in his June 15, 2006 letter, namely:  the reading goals are inadequate; there are no social skills goals or provision for counseling; the reading teacher is not adequately trained in Wilson; petitioner only intended to agree to this IEP as a pendency placement; 20 hours of corrective services are not substantial enough; and the child has not been administered a BIP or an FBA (Dist. Ex. 82).  Respondent argued that petitioner's substantive requests in her hearing demand had been met after the resolution session and subsequent CSE meeting, that the IEP created offered the child a FAPE, and that petitioner's attorney was pursuing the impartial hearing and fabricating issues in dispute in an attempt to obtain attorneys' fees. 

            The impartial hearing officer issued a decision dated August 17, 2006 in which she denied petitioner's request for relief in its entirety (IHO Decision, p. 2).  The impartial hearing officer held that the five substantive requests in petitioner's initial hearing request had been settled as a result of the resolution session and the IEP thereafter created by the CSE (id.).  She held that petitioner failed to meet her burden of proving the four additional issues that she identified in her attorney's correspondence of June 15, 2006, which petitioner had alleged were part of the original issues in her hearing request (id.).  The impartial hearing officer further concluded that "the additional issues were raised solely to pressure the district into paying attorneys' fees" (id.). 

            Petitioner appeals and asserts that the impartial hearing officer erred on multiple grounds, including accepting evidence of settlement discussions; in failing to find a "child find" violation; concurring with the provision of 20 hours of corrective services for the child in reading; finding that the May 24, 2006 IEP had a one year duration; finding reading goals appropriate and the teacher appropriately qualified; finding that the IEP appropriately addressed the child's social skills needs; failing to find a violation of regulations relating to an FBA and BIP; and failing to recuse herself after being exposed to settlement discussions.  On appeal, petitioner requests that the impartial hearing officer's August 17, 2006 decision be vacated and that the matter be remanded for a new hearing with a new impartial hearing officer.  Respondent submitted an answer, asserting that the testimony and evidence support the impartial hearing officer's decision and that the petition should be dismissed.

            Preliminarily, I note that the impartial hearing officer conducted the impartial hearing efficiently and in an appropriate manner consistent with the requirements of due process.  She appropriately and expeditiously addressed multiple requests and motions by the parties prior to the impartial hearing.  Her decision is thorough and well-reasoned.  For the reasons set forth herein, I concur with the impartial hearing officer's decision. 

             First, I note that the resolution process is not confidential and therefore the impartial hearing officer properly allowed documents into evidence that memorialized discussions at the resolution session (18 U.S.C. § 1415[f][1][B]; 34 C.F.R. § 300.510;1 8 NYCRR 200.5[j][2]).  In contrast to mediation discussions held pursuant to the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482), neither statute nor regulation create confidentiality for IDEA resolution process discussions (compare 18 U.S.C. § 1415[e][2][G] [regarding confidentiality of mediation discussions], with 18 U.S.C. § 1415[f][1][B]; 34 C.F.R. § 300.510).  I also note that in response to a comment on the proposed federal regulations relating to the confidentiality of the resolution process, the Secretary of the United States Department of Education noted that IDEA is silent on confidentiality of the resolution process, that the parties could enter into confidentiality agreements, and also that "[a] State could not, however, require that the participants in a resolution meeting keep the discussions confidential . . ." (34 C.F.R. Parts 300 and 301, Analysis of Comments and Changes, 71 Fed. Reg. 46704 [2006]).  Therefore, the parties' discussions at the resolution session and the documents created memorializing that session are not confidential and the impartial hearing officer was not required to recuse herself as petitioner argues.

            Second, the impartial hearing officer properly held that she was not required to address matters that had already been settled to the satisfaction of both parties.  Where an alleged violation of the IDEA has been remedied prior to or during an impartial hearing, there exists no remaining controversy between the parties (see Application of a Child with a Disability, Appeal No. 04-071; Application of a Child with a Disability, Appeal No. 96-51).  Neither an impartial hearing officer nor a State Review Officer is required to issue a decision regarding an issue that will have no actual effect on the parties (id.).  The impartial hearing officer therefore did not err in declining to address the alleged "child find" violation when respondent has implemented an IEP classifying the child and petitioner is in agreement with the child's classification.

            The impartial hearing officer also appropriately requested that the parties identify any issues in dispute prior to the impartial hearing when it became clear, based upon petitioner's own representations, that the parties had settled some, if not all, of petitioner's concerns raised in her hearing request (8 NYCRR 200.5[j][3]; Application of a Child with a Disability, Appeal No. 04-103).  Impartial hearing officers may conduct pre-hearing conferences to simplify and clarify the issues for the impartial hearing and may also conduct conferences during the impartial hearing if a party represents that a matter has been resolved (id.).

            The central purpose of the IDEA is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; see Bd. of Educ. v. Rowley, 458 S. Ct. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356 [2d Cir. 2006]).  A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.320).  The "core of the statute" is the collaborative process between parents and schools, primarily through the IEP process (see Schaffer, 126 S. Ct. at 532).  The federal and state statutes and regulations concerning the education of children with disabilities provide for a collaborative process between parents and school districts in planning and providing appropriate special education services (see Schaffer, 126 S.Ct. at 532; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192-93 [2d Cir. 2005]). 

            A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07).  The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.114; 8 NYCRR 200.6[a][1]).  The burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief (see Schaffer, 126 S. Ct. at 537).

            I find that there is no need to modify the determinations of the impartial hearing officer relating to the issues raised by petitioner at the impartial hearing regarding the duration of corrective reading services, the duration of the March 24, 2006 IEP, the reading goals and teacher qualification, the social skills needs and the provision of an FBA and BIP.  Based upon my review of the record and the thorough and well-reasoned decision of the impartial hearing officer, I find that the impartial hearing was conducted in a manner consistent with the requirements of due process (34 C.F.R. §§ 300.511-13; N.Y. Educ. Law § 4404[2]).  I find that the decision of the impartial hearing officer relating to the above issues demonstrates that she carefully reviewed the evidence in the record and petitioner's allegations, and applied a proper legal analysis.  I therefore adopt the impartial hearing officer’s decision and order of dismissal on these issues.  In brief summary, I concur that the May 24, 2006 IEP offered the child a FAPE and also was in accordance with petitioner's express requests (Dist. Ex. 53).  The May 24, 2006 IEP was intended to commence immediately and was for the duration of one year (id.).  It specifically noted that an FBA was in the process of being scheduled (id. at p. 4).  Further, the record reflects that an FBA was completed on June 23, 2006 and was entered into evidence at the impartial hearing, along with a notice for a CSE meeting at the end of July 2006 to prepare a BIP (Dist. Exs. 101, 107).  I concur with the impartial hearing officer that petitioner's claims had either been resolved prior to the impartial hearing, or that petitioner did not meet her burden of proving that respondent failed to offer the child a FAPE with the May 24, 2006 IEP. 

            As a final point I note that extensive evidence in the record shows, as the impartial hearing officer noted, that petitioner's attorney sought to proceed to an impartial hearing after the resolution session, despite the fact that he conceded that his client's substantive concerns had been resolved, for the primary purpose of obtaining attorneys' fees (Dist. Exs. 27, 33, 38; IHO Decision, pp. 4-5).  Petitioner's attorney then proceeded to argue throughout the impartial hearing process that the evidence of this fact be deemed confidential settlement negotiations. 

            Respondent offered on several occasions to revise the May 24, 2006 IEP if petitioner felt it did not reflect the parties' agreement.  Respondent also offered a Wilson certified teacher if petitioner objected to the teacher who would otherwise provide the child's corrective reading instruction.  Petitioner's attorney was willing to have the impartial hearing officer issue a consent order, but was not otherwise willing to sign a settlement agreement unless attorneys' fees were included (Dist. Exs. 27, 33).  Petitioner's attorney then sought to proceed to an impartial hearing with the expressed intent of being able to seek attorneys' fees from a court (Dist. Ex. 27).  The IDEA does not authorize an administrative officer to award attorneys' fees or other costs to a prevailing party, and entitlement, if any, to costs must be determined by a court of competent jurisdiction (see 20 U.S.C. § 1415[i][3][B]; Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332 [2d Cir. 2005].  I note that the IDEA expressly precludes attorneys' fees to be awarded for an attorney's time during the resolution process or at a CSE meeting, unless convened as a result of an administrative proceeding or judicial action (18 U.S.C. § 1215[I][3][D][ii]; 34 C.F.R. § 300.517[c]).  Petitioner's attorney was therefore refusing an ultimate settlement of all of his client's substantive concerns based upon an unsettled demand for respondent to pay attorneys' fees, which he was not entitled to under the express language of IDEA.  I also note that the IDEA prohibits attorneys' fees to a parent if the final relief obtained is not more favorable than that offered in a written offer of settlement (34 C.F.R. §300.517[c][2][i][C]).  Lastly, I remind the parties that the IDEA also allows attorneys' fees to be awarded as follows:

(II) to a prevailing party who is a State educational agency or local educational agency against the attorney of a parent who files a complaint or subsequent cause of action that is frivolous, unreasonable, or without foundation, or against the attorney of a parent who continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation; or

(III) to a prevailing State educational agency or local educational agency against the attorney of a parent, or against the parent, if the parent's complaint  or subsequent cause of action was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.

(18 U.S.C. § 1415[i][3][B][i][II]-[III]).

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

         THE APPEAL IS DISMISSED.

Dated:

Albany, New York

 

__________________________

 

October 27, 2006

 

PAUL F. KELLY
STATE REVIEW OFFICER

1 The Code of Federal Regulations (34 C.F.R. Parts 300 and 301) has been amended to implement changes made to the Individuals with Disabilities Education Act, as amended by the Individuals with Disabilities Education Improvement Act of 2004.  The amended regulations became effective October 13, 2006.  In this case, none of the new provisions contained in the amended regulations are applicable because all relevant events occurred prior to the effective date of the new regulations.  However, for convenience, citations herein refer to the regulations as amended because the regulations have been reorganized and renumbered.