De Leon & Associates, PLLC

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1 Edgar De Leon ** Sharifa M. Nasser * Of Counsel Walter D. Nealy De Leon & Associates, PLLC Attorneys and Counselors at Law Integrity in Practice - Commitment to Excellence 26 Broadway - Suite 2100 New York, New York Telephone: (212) Facsimile: (212) ** Licensed in NY & NJ * Licensed in NY Englewood, NJ Office Dear Impartial Hearing Litigant, Case No. :, 2013 Pursuant to 8 NYCRR 200.5(j)((3), I, EDGAR DE LEON, am assigned as the Impartial Hearing Officer ( IHO ) to your case. This writing will serve as a guide to the litigants concerning the relevant law and procedure for the conduct of the impartial hearing before the assigned IHO. For an in depth and comprehensive review of the regulations, policies and procedures governing the Impartial Hearing process, the litigants are respectfully referred to the Regulations of the Commissioner of Education, Part Students with Disabilities, Section 200.5(i) & (j) The parties are advised that the Individuals with Disabilities Act ( IDEA ) and the New York State Regulations of the Commissioner of Education place a two year statute of limitations on impartial hearings. "The IDEA requires that, unless a State chooses to set a different limitations period under State law, a party must request a due process hearing within two years of when the party knew or should have known of the alleged violation. (See 20 U.S.C. 1415[f][3][C]; 20 U.S.C. 1415[b][6][B] and N.Y. Educ. Law 4404[1]). The IDEA was amended in 2004 and the present two year statute of limitations became effective in July (Id.). Prior to July 2005, the statute of limitations in New York for alleged violations of IDEA was one year. (See M.D. v. Southington Bd. of Educ., 334 F.3d 217, [2d Cir. 2003] and SRO Nos & ) IDEA 2004 contains specific exceptions whereby a party will not be held to the two year statute of limitations period under two specific circumstances. (See 20 U.S.C. 1415[f][3][D][I]). The statute states in relevant part that the two year statute of limitations "shall not apply to a parent if the parent was prevented from requesting the hearing due to (i) specific misrepresentations by the local educational agency that it had resolved the problem forming the basis of the complaint; or (ii) the local educational agency's withholding of information from the parent that was required under this part to be provided to the parent." (Id.) 1

2 The Second Circuit courts disfavor the continuing violation doctrine. (See Cabrera v. NYC, 436 F. Supp. 2d 635, 642 [S.D.N.Y. 2006]; Berkhout v. New York City Dep't of Educ., 2004 WL , *6 [S.D.N.Y] and SRO No ). The continuing violation doctrine would act to toll the statute of limitations only if one of the alleged violations occurred within the limitations period. (Id.). If a party wishes to amended their Due Process Complaint ( DPC ), the procedures in 8 NYCRR 205.(i)(7) require the following: (i) A party may amend its due process complaint notice only if: (a) the other party consents in writing to such amendment and is given the opportunity to resolve the complaint through a meeting held pursuant to subdivision (j)(2) of this section; or (b) the impartial hearing officer grants permission, except that the impartial hearing officer may only grant such permission at any time not later than five days before an impartial due process hearing commences. (ii) the applicable timelines for an impartial due process hearing, including the timelines for a resolution session, shall recommence at the time the party files an amended due process complaint notice. Rules for the Conduct of an Impartial Hearing 1. As stated above, absent the allowable exceptions, the request for an impartial due process hearing must be submitted within two years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint. 2. The due process complaint shall be deemed sufficient unless the party receiving the notice notifies the IHO and the other party in writing within (15) days of receipt of the due process complaint notice, that the receiving party believes the notice has not met the requirements of the law. Within (5) days of receipt of the notice of insufficiency the IHO shall either dismiss the notice for insufficiency or grant permission to amend the notice at any time not later than (5) days before the impartial hearing commences. The notice may also be amended if the opposing party consents in writing to the amendment. The applicable timelines for the impartial due process hearing shall recommence when an amended due process complaint notice is filed. 3. The school district shall within (10) days of receiving the complaint, send to the parent a response to his/her complaint if it has not previously sent the parent a prior written notice. 4. Prior to the opportunity for an impartial hearing, the school district shall, within (15) days of receiving the due process complaint, convene a meeting with the parent for the purpose of resolving the dispute. The Resolution Period may be waived by both the parties or the parties may proceed to mediation. The parties may also enter into a written settlement agreement. If the matter is not resolved within (30) of receipt of the due process complaint, the impartial due process hearing may occur. 2

3 5. The pendency provisions of the Individuals with Disabilities in Education Act ( IDEA ) and the New York State Education Law require that a student remain in his or her then current educational placement, unless the student's parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the student. (See 20 U.S.C. 1415[j]; Educ. Law 4404[4], 4410[7][c]; 34 C.F.R [a]; 8 NYCRR 200.5[m]; see also Student X. v. New York City Dep't of Educ., 2008 U.S. Dist. LEXIS 88163, 108 LRP (E.D.N.Y. Oct. 30, 2008); SRO No , , , , , and ). Although not defined by statute, the phrase "then current placement" has been found to mean the last agreed upon placement at the moment when the due process proceeding is commenced. (See Murphy v. Bd. of Educ., 86 F. Supp. 2d 354, 359 [S.D.N.Y. 2000] aff'd, 297 F.3d 195 [2002]; SRO No and ). The parties may ask for a hearing on the issue of pendency at any time after the filing of a DPC. The purpose of the pendency provision is to provide stability and consistency in the education of a student with a disability. (See Honig, 484 U.S. 305). The provision "protect[s] the educational status quo of the student while the parents and the school fight out the legalities of the placement. The provision is student focused, not school district or parent focused." (See Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 391 [N.D.N.Y. 2001]). The pendency provision does not mean that a student must remain in a particular site or location. (See Concerned Parents and Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751 [2d Cir. 1980]; SRO No , , and 99-90), or at a particular grade level. (See SRO No and 95-16). If there is an agreement between the parties on placement during the proceedings, it need not be reduced to a new IEP, and it can supersede the prior unchallenged IEP as the then current placement. (See Evans, 921 F. Supp. at 1189 n.3; Bd. of Educ. v. Schutz, 137 F. Supp. 2d 83 [N.D.N.Y. 2001] aff'd, 290 F.3d 476, 484 [2d Cir. 2002], see also Letter to Hampden, 49 IDELR 197[OSEP 2007]). The Second Circuit has proffered three possible definitions of "then current educational placement": (1) the placement described in the student's most recently implemented IEP; (2) the operative placement actually functioning at the time when the pendency provision of the IDEA was invoked; and (3) the placement at the time of the previously implemented IEP. (See Mackey, 386 F.3d at 163, citing Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618, 625 [6th Cir. 1990] [emphasis added], see also SRO No ). 6. When the resolution period ends or when a school district files a due process complaint, the hearing or pre-hearing conference shall commence within the first (14) days after the IHO is appointed. 7. As a general matter, the parties to an impartial hearing are obligated to comply with the reasonable directives of the Impartial Hearing Officer ( IHO ) regarding 3

4 the conduct of the impartial hearing. (SRO No , and ). An IHO is authorized to administer oaths and to issue subpoenas in connection with the administrative proceeding (8 NYCRR 200.5[j][3][iv]). An IHO may ask questions of attorneys or witnesses for the purposes of clarification or completeness of the hearing record (8 NYCRR 200.5[j][3][vii]). The parents, school authorities, and their respective attorneys or representatives, shall have an opportunity to present evidence, compel the attendance of witnesses, and to confront and question all witnesses at the impartial hearing (8 NYCRR 200.5[j][3][xii]). The IHO may take direct testimony by affidavit in lieu of inhearing testimony, provided that the witness giving such testimony shall be made available for cross-examination (8 NYCRR 200.5[j][3][xii][f]). An IHO may require the parties to be present at the impartial hearing. (8 NYCRR 200.5(j)(3)(xiii). I do so require unless personal appearance at the hearing is excused prior to the actual hearing date. The IHO s order to the parties to attend the impartial hearing in order to be questioned by the IHO is a reasonable directive that obligates the parties to comply. (SRO No ) An IHO's dismissal of the due process complaint with prejudice, based on the failure of the party to prosecute and comply with reasonable directives issued during the proceeding, has been held appropriate under the circumstances of this case. (SRO No ) 8. The IHO is authorized to administer oaths and to issue subpoenas in connection with the administrative proceeding before him/her. Request for subpoenas must be made on notice to the other side prior to their submission to the IHO for signature. The Second Circuit has held that [r]ecords of collective entities still must be maintained, and their production can be compelled by a subpoena duces tecum addressed to the entity. (See In re Grand Jury Subpoenas Issued to Thirteen Corporations, 775 F.2d 43, C.A.2,1985, October 15, 1985, citing In re Grand Jury Matter (Brown), 768 F.2d 525, 528 (3d Cir. 1985) (emphasis added) Under New York law, a subpoena with general language is adequately met when any person able to identify the item and attest to its custody shows up at the appointed time and place with the papers or things sought. (See CPLR 2305(b)) If the records sought are with a large entity with a central office and other branches all over, service of the subpoena at either the central office or the branch that has the records is sufficient under New York law. (See Application of Bott, 125 Misc.2d 1029, 481 N.Y.S.2d 266 (1984)) It is the duty of the collective entity to identify an appropriate custodian to produce subpoenaed documents. (See In re Two Grand Jury Subpoenae Duces Tecum, 793 F.2d 69, C.A.2 (N.Y.),1986, citing In re Grand Jury Subpoenas Issued to Thirteen Corporations, 775 F.2d 43, 47, (2nd Cir. 1985) For the purposes of this proceeding: (1) The Department of Education ( DOE )/School District is a collective entity; (2) The request for records pursuant to a subpoena must be specific and not unduly burdensome; (3) The DOE/School District/Private School has a duty to identify the appropriate custodian to produce the subpoenaed documents. 9. A written or electronic verbatim record of the proceedings before the IHO shall be maintained. 4

5 10. Interpreters shall be used at the school district s expense, where required. 11. The parties may be accompanied and advised by legal counsel and by individuals with special knowledge or training with respect to the problems of students with disabilities. 12. If the IHO request an independent educational evaluation as part of the hearing, the cost of the evaluation shall be at public expense. If the parent disagrees with an evaluation obtained by the school district, the parent has a right to obtain an independent evaluation at public expense. (See 8 NYCRR ) If the parent request an independent educational evaluation at public expense, the school district must, without unnecessary delay, either ensure an independent evaluation is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. (See 8 NYCRR 200.5(g)(iv). 13. If the IHO determines that the interest of the parent are opposed or inconsistent with those of the student, or that for any other reason, the interests of the student would be best protected by appointment of a guardian ad litem, the IHO shall appoint a guardian ad litem. 14. The hearing shall be conducted at a time and place which is reasonably convenient to the parent and student involved and shall be closed to the public unless the parent requests an open hearing. The parent has the right to determine whether the student shall attend the hearing. 15. A Pre-Hearing Conference with the parties will be scheduled. Such conference will be conducted by telephone. A transcript or a written summary of the Pre- Hearing Conference will be entered into the record by the IHO. At the scheduled date and time, the litigants will initiate a conference call with this office. The litigants will not communicate with the IHO ex parte, e.g., without the other party also on the telephone or without first serving the other party with a copy of any written communication for the IHO and providing the IHO with proof of such service. A Pre-Hearing Conference is for the purposes of: (a) simplifying or clarifying the issues; (b) establishing date(s) for the completion of the hearing; (c) identifying evidence to be entered into the record; (d) identifying witnesses expected to provide testimony; and/or, (e) addressing other administrative matters as the IHO deems necessary to complete a timely hearing. 16. Each party will have the opportunity to present evidence, compel the attendance of witnesses and to confront and question all witnesses at the hearing. The standard for the introduction of evidence and/or testimony is relevance and materiality. The evidence and/or testimony must also be reliable and not overly repetitive or duplicative. The witnesses may provide testimony by telephone at the IHO s discretion, provided they do so under oath and subject to cross 5

6 examination. Direct testimony may also be taken by affidavit in lieu of in-hearing testimony, provided that the witness giving such testimony is made available for cross examination. 17. Not less than (5) business days before the hearing, each party shall disclose to all other parties all evaluations and any other documents that they wish to submit as evidence at the hearing. The IHO may bar the introduction of relevant documents without the consent of the other party for failure to comply with the discovery rule. Each party shall provide an index cover sheet for their documentary evidence, with the following columns: No. for (School) or Letter for (Parent) Date Name/Description No. of Pages Each page in each exhibit is to be identified as follows: Examples: (School), 1-1, 1-2, 1-3, 2-1, 2-2, 2-3 ect. for each page in each exhibit. (Parent), A-1, A-2, A-3, B-1, B-2, B-3 ect. for each page in each exhibit. The parties will also exchange witness lists prior to the hearing. 18. Wherever possible, the parties should stipulate to the facts and/or joint exhibits agreed to. The IHO will enter the stipulations into the record. If the parties will not stipulate to the admission of evidence, the general rules for the admission of evidence in an administrative hearing provided below should be followed. 19. The IHO may receive Memoranda of Law from the parties not to exceed (30) pages in length, with typed material in minimum 12-point type (footnotes minimum 10 point type) and not exceeding 6 ½ by 9 ½ inches on each page. 20. Each party shall have up to one day to present its case unless the IHO determines that additional time is necessary. Additional hearing days, if required, shall be scheduled on consecutive days wherever practicable. 21. Except for where otherwise indicated, the IHO s decision shall be submitted not later than (45) days from the date required for commencement of the impartial hearing. If extensions have been granted, the decision shall be rendered and mailed no later than (14) days from when the record is closed. 22. Extensions shall be for no more than (30) days. Not more than one extension at a time may be granted. The IHO shall consider the following in granting an extension: (a) the impact on the child s educational interest or well-being; (b) the need of a party for additional time to prepare, (c) any financial or other detrimental consequences likely to be suffered by a party in the event of a delay; and (d) whether there has already been delay in the proceeding through the actions of one of the parties. 6

7 23. Absent a compelling reason or a specific showing of a substantial hardship, a request for an extension shall not be granted because of: (a) school vacations, (b) a lack of availability resulting from the parties and/or representatives scheduling conflicts; (c) settlement discussions; and/or agreement of the parties. 24. Chapter 583 of the Laws of 2007 was enacted to provide that the burden of proof present in an impartial due process hearing pursuant to 4404(1) of Education Law to challenge the recommendation of a Committee on Special Education (CSE) or Committee on Preschool Special Education (CPSE), or otherwise challenge actions or omissions relating to the provision of a free appropriate public education (FAPE) to a student with a disability, is generally placed on the school district (or State agency) providing special education to the student. The law creates an exception for impartial hearings in which the parent seeks tuition reimbursement for a unilateral placement in a private school. 25. In either case, the School District will present its case-in-chief first and in tuition reimbursement cases, address all three prongs of the Burlington/Carter test, e.g., (1) that it offered the student a FAPE under law (or a concession that it did not), (2) that the student s private school placement is inappropriate (or a concession that it is appropriate), and (3) that the equities do not favor an award of tuition reimbursement to the parent/student (or a concession that the equities do favor such an award) The parent will then present his or her case-in-chief addressing all three question. 26. New York City litigants are advised that in some instances a Nickerson Letter must be issued pursuant to a court ordered stipulation. A Nickerson Letter is a letter from the Department of Education (DOE) to a parent authorizing the parent to place the child in an appropriate special education program in any stateapproved private school, at no cost to the parent. (See Jose P. v. Ambach, No. 79 Civ. 270 [E.D.N.Y. Jan. 5, 1982], 553 IDELR 298). The remedy of a Nickerson Letter is intended to address the situation in which a child has not been evaluated or placed in a timely manner. (See SRO Nos , & ) The remedy is also available when a student has completed all necessary evaluations but a final notice of recommendation is not sent/given to the parents by the student s eligibility date. There again, the parent must be sent/given a Nickerson Letter entitling the student to be placed in an appropriate non-public school at public expense. (Jose P., et al. v. Thomas Sobol, et al., 1995 WL (EDNY) - Stipulation) 27. Rebuttal testimony is discretionary with the Hearing Officer. It should not consist of anything that could have been offered in the case-in-chief. Its function is to explain, repel, counteract or disprove evidence or theory of adverse party (examples: evidence that tends to disprove bias, surprise evidence was presented by the defendants; evidence was unavailable through no fault of the plaintiffs). It is an abuse of discretion for the Hearing Officer to allow rebuttal evidence if: (a) it surprises the other party; and (b) the opposing party doesn t 7

8 have an opportunity to meet the proof; and (c) there is a detriment to the opposing party because of the order in which the evidence was introduced; (d) it is unfair, (e) it confuses the issues, and (f) it is repetitive evidence. A change in litigation strategy is not permitted in rebuttal. Rebuttal testimony is not offered for just rebutting cross examination. 28. Sur-rebuttal Testimony is a matter of right when introduced to deny, explain, or avoid matters introduced during rebuttal, but it is discretionary with the Hearing Officer whether it is cumulative of the case-in-chief and admissible. Testimony: General Rules for the Conduct of an Administrative Hearing Hearsay - While compliance with technical rules of evidence is not required in administrative hearings, under certain circumstances, the receipt of hearsay evidence may be so prejudicial as to have a tendency to deprive a party of fair hearing. (See Strain v. Sarafan, 57 A.D.2d 525, 393 N.Y.S.2d 572, N.Y.A.D. (1977), where the hearsay testimony was of vital importance and should have been subjected to cross-examination by the petitioner the petitioner was deprived of a meaningful hearing) Hearsay evidence is admissible where the hearsay source is identified and there is an indicia of reliability. Dukes v. New York City Housing Authority, 63 A.D.2d 690, 404 N.Y.S.2d 889, N.Y.A.D. (1978), (holding that the excessive reliance on hearsay evidence effectively denied petitioner the right to cross-examine adverse witnesses) Claim of Evans, 254 A.D.2d 564, 678 N.Y.S.2d 696, N.Y.A.D. (3 Dept. 1998), (where in an unemployment compensation proceedings, administrative law judge ( ALJ ) properly exercised discretion to exclude hearsay evidence to protect employer s fundamental right of cross-examination, where claimant proffered written hearsay statement, authored by acquaintance of the employer s president, which allegedly indicated that claimant did not resign but was fired, but the acquaintance failed to answer subpoena directing him to testify at hearing, thereby denying employer the opportunity to cross-examine him on the statement.) Alvarado v. State of New York, 110 A.D.2d 583, 488 N.Y.S.2d 177 (1 st Dept. 1985), held that a license suspension hearing against a boxer and his managers was faulty because of a lack of an opportunity to cross-examine certain witnesses whose reports were introduced into evidence without their testifying, in violation of SAPA Section 306, subd. (3). (Id. at 585, 488 N.Y.S.2d at 179) Cross Examination - ALJs/IHOs have broad discretion to limit crossexamination, particularly on collateral points where there is no jeopardy to the 8

9 essential fairness of the proceedings. (See Heydari v. Jackson, 237 A.D.2d 763, 655 N.Y.S,2d 168 (3d Dep t 1997) (ALJ did not err in limiting cross examination of agency investigator where petitioner s counsel indicated that his case would be base primarily on petitioner s own testimony) Admissibility of Prior Testimony in Lieu of Witness Appearance - (See CPLR 4517 and Fleury v. Edwards, 14 NY2d 334, 251 NYS2d 647) Statutorily, there are three sets of conditions for the admissibility of a witness prior testimony: (1) the unavailability of the witness, (2) the identity of the subject matter, and (3), the identity of the parties. (See CPLR 4517) The New York common law holds that the prior testimony of an unavailable witness is admissible in a subsequent trial if that testimony was given under oath, referred to the same subject matter and was heard in a tribunal where the other side was represented and allowed to cross examine. witness unavailable as considered by CPLR 4517, is that she is (1) asserting a privilege, (2) dead, (3) suffering from physical or mental illness, (4) absent beyond the jurisdiction of the administrative tribunal for the same to compel her appearance by its process, and (5) whereabouts are unknown. prior testimony at the criminal trial is not admissible at administrative proceeding if the witness is not unavailable under either the prevailing statutory and/or case law. (See National Hotel Management Corp. v. Shelton Towers Assocs., 188 AD2d 305, 590 NYS2d 476, app. den., 81 BY2d 706, 597 NYS2d 937, 613 NE2d 969 (1 st Dept. 1992)) Competency of Witness to Testify - A witness may not testify unless he or she had personal knowledge of the matter in question. (See Hallenbeck v. Vogt, 9 A.D.2d 836, 192 N.Y.S.2d 945 (3d Dept. 1959) That is, a witness may not attempt to establish as fact something learned from information furnished by others. (See People v. Thomas, 212 A.D.2d 474, 623 N.Y.S.2d 203 (1st Dept. 1995) It is important to distinguish this objection, which goes to the competency of the witness, from an objection based on the hearsay rule, which goes to the admissibility of a particular bit of evidence. Proponent of the testimony may ask that testimony be admitted subject to connection. (And must make sure to make the connection!) Personal knowledge is an impression derived from the exercise of one s own senses, not from the reports of others. (See Hallenbeck v. Vogt, 9 A.D.2d 836, 192 N.Y.S.2d 945 (3d Dept. 1959) 9

10 Foundation for Expert Testimony - The qualifications of an expert should be placed on the record. (See Analysis & Comments to the Regulations, Federal Register, Vol. 71, No. 156, Page (August 14, 2006), hearing officers can determine appropriate expert witness testimony) (1) his or her academic study or practical experience, (2) reasonable connection to the subject matter, (3) the subject matter clarifies an issue in the case, (4) theories or test used are generally accepted in the scientific community, (5) has personal knowledge, uses facts in evidence, or out-of-court materials that are accepted in the field, (6) states his or her opinion with a reasonable degree of certainty Subpoena: SAPA 304(2) allows parties to request the agency or ALJ/IHO to issue a subpoena requiring unwilling witnesses to testify. (See SAPA 304(2) and National Basketball Ass n v. New York State Div. of Human Rights, 68 N.Y.2d 644, 505 N,Y.S.2d 63, 496 N.E.2d 222 (1986) (employer could not be faulted for failing to request the attendance of a doctor where agency ruled that the doctor s report would not be admitted to conclusively establish any matter) Evidence: Privileges apply Hearsay cannot be too remote from the issues, unreliable, untrustworthy, irrelevant, cumulative, (i.e., lookout for double and triple hearsay in reports or unidentified hearsay source) ALJ/IHO can take Judicial Notice Written reports of investigators on the case shall be received into evidence Evidence cannot be unlawfully obtained Is the burden of proof preponderance of the evidence or substantial evidence Authentication/Foundation for Evidence - What is, or does he/she recognize: (1) date, (2) signature, (3) handwriting, (4) recollection of having written or received ALJ/IHO receives the document into evidence Foundation for Business Records - (1) is the witness the authorized custodian of the records, (2) is he a qualified witness, (3) where is the original, (4) is this an exact copy of the original, (5) was the document made by the agency staff in the regular course of its business, (6) was it his or her regular course of business to 10

11 make such a record at the time, (7) does the agency regularly make these records I hope that this summary of the applicable regulations and general rules for the conduct of an administrative hearing will assist the parties in preparing for the upcoming impartial hearing and will facilitate the entire process. Very truly yours, De Leon & Associates, PLLC EDL:er Edgar De Leon, I.H.O. (Impartial Hearing Officer) 11