PREPARING A CASE FOR APPEAL

PREPARING A CASE FOR APPEAL Presented by Randy Glasser, Esq. November 6, 2013 77 Conklin Street Farmingdale, New York 11735 24 Century Hill Drive Latham, New York 12110 1

INTRODUCTION The Individuals with Disabilities Education Act ( IDEA ) provides for due process procedures to promptly resolve disputes that arise between parents and school districts, so that children will receive appropriate special education services. B.C. v. Pine Plains Cent. Sch. Dist., 2013 U.S. Dist. LEXIS 127554 at *5 (S.D.N.Y. 2013) citing 20 U.S.C. 1415(b)(6) (7). New York State has implemented a two tiered system of administrative review for disputes regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability...or the provision of a [FAPE] to such a student." Id. citing Id.; 8 NYCRR 200.5(i)(1). 2

INTRODUCTION (Cont d) First, "[p]arents may challenge the adequacy of their child's IEP in an 'impartial due process hearing' before an [Impartial Hearing Officer ("IHO")] appointed by the local board of education." Id. citing E.A.M. ex rel. E.M., 2012 U.S. Dist. LEXIS 143266 at *2 (quoting Gagliardo, 489 F.3d at 109). Either party may then appeal the IHO's decision to a State Review Officer ("SRO"), an officer of the New York State Education Department, who conducts an impartial review of these proceedings. Id.; 34 C.F.R. 300.514(b)(2); 8 NYCRR 279.1(d). 3

Notice of Intention to Seek Review When It Is Required: The parent or person in parental relationship to a student with a disability who intends to seek review by the SRO of an IHO s decision must personally serve upon the school district a Notice of Intention to Seek Review in the form set forth in 8 NYCRR 279.2. 4

Notice of Intention to Seek Review Timeline: The Notice of Intention to Seek Review must be personally served upon the school district not less than ten (10) days before a copy of the petition is served, and within twentyfive (25) days from the date of the decision sought to be reviewed. Id. The Petition for Review must be personally served upon the school district within thirty five (35) days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four (4) days subsequent thereto shall be excluded in computing the twenty five (25) or thirty five (35) day period. Id. 5

Notice with Petition (8 NYCRR 279.3) Each petition must contain the Notice set forth in 8 NYCRR 279.3 6

Petition (8 NYCRR 279.4) Timeline: Petitioner must file with the Office of State Review the Petition for Review and the Notice of Intention to Seek Review where required, together with proof of service upon the other party to the hearing, within three (3) days after service is complete. Id. Filing by facsimile or electronic transmission is not permitted. Id. The Petition for Review must clearly indicate the reasons for challenging the impartial hearing officer s decision, identifying the findings, conclusions and orders to which exceptions are taken, and shall indicate what relief should be granted by the State Review Officer to the petitioner. Id. 7

Affidavit of Service (8 NYCRR 275.9) Within five (5) days after the service of any pleading or paper, the original, together with the affidavit of verification and an affidavit of service, proving the service of a copy such pleading or paper on the other party, must be transmitted to the Office of Counsel, New York State Education Department, State Education Building, Albany, NY 12234. The affidavit of service must be in substantially the form set forth in 8 NYCRR 275.9, and indicate the name and official character of the person upon whom service was made (see attached). The Affidavit of Service must be signed in the presence of a Notary Public or a Commissioner of Deeds by the person who delivered the Petition, Answer, Reply, etc. The original of the Affidavit should be attached to each pleading. 8

Cross Appeals (8 NYCRR 279.4) A respondent who wishes to seek review of an IHO s decision may cross appeal from all or a part thereof by setting forth a cross appeal in respondent s answer. A cross appeal is timely if it is included in the answer, which is served within the time permitted by section 279.5 of the Commissioner s Regulations. The petitioner must answer respondent s cross appeal within ten (10) days after service of a copy of the answer and cross appeal and file the answer to the cross appeal, together with proof of service, with the Office of State Review within two (2) days after service is complete. Id. No filing by facsimile or electronic transmission is permitted. Id. 9

Answer (8 NYCRR 279.5) Respondent shall, within ten (10) days after the date of service of a copy of the petition, answer by either concurring in a statement of facts with petitioner or by service of an answer, with any written argument, memorandum of law, and additional documentary evidence. Id. Such answer or agreed statement of facts, together with proof of service of a copy of such documents upon the petitioner, shall be filed with the Office of State Review within two (2) days after such service. Id. No filing by facsimile or electronic transmission shall be permitted. Id. 10

Additional Pleadings (8 NYCRR 279.6) No pleading, other than a petition or answer, will be accepted or considered by the SRO, except a reply by petitioner to any procedural defenses interposed by respondent and to any additional documentary evidence served with the answer. Id. Such reply must be served upon the opposing party withinthree(3)daysafterserviceoftheanswerand thereafter shall be filed, along with proof of service, with the Office of State Review within two (2) days after service of the reply is complete. Id. No filing by facsimile or electronic transmission is permitted. Id. 11

Verification of Pleadings (8 NYCRR 279.7) All pleadings must be verified. The petition must be verified by the oath of at least one of the petitioners, except that when the appeal is by a Board of Education, it will be verified by any person who is familiar with the facts underlying the appeal, pursuant to a resolution of such Board authorizing the commencement of such appeal on behalf of such trustees or Board (e.g. superintendent). Id. When the appeal is brought from the action of a school district, verificationoftheanswermustbemadebyanypersonwhois familiar with the facts underlying the appeal. If two or more respondents are united in interest, verification of the answer must be made by at least one of them, who is familiar with the facts. Id. A reply must be verified in the manner set forth for the verification of an answer. Id. 12

Pleadings and Memorandum of Law Form: (8 NYCRR 279.8) Documents that do not comply with the requirements listed below may be rejected by the SRO. All pleadings and memoranda of law shall be in the following form: On 8 ½ by 11 inch white paper of good quality, with erasures or interlineations materially defacing the pleadings; Typewritten in black ink, single sided, and text double spaced (block quotation and footnotes may be single spaced). All text with the exception of page numbering, shall appear on pages containing margins of at least 1 inch. Text shall appear as minimum 12 pointtypeandthetimesnewromanfont (footnotes may appear as minimum 10 pointtypeandthetimesnewroman font). Compacted or other compressed printing features are prohibited; Set forth the allegation(s) of the parties in numbered paragraphs; 13

Pleadings and Memorandum of Law (8 NYCRR 279.8) (cont d) Pages shall be consecutively numbered and fastened together; Petition, answer, or memorandum of law shall not exceed twenty (20) pages in length and a Reply shall not exceed ten (10) pages in length; A party shall not circumvent page limitation through incorporation by reference e.g. memorandum of law submitted as a closing statement for impartial hearing; and Extensive footnotes may not be used to circumvent page limitations. 14

Petition Answer, Reply and Memorandum of Law Pleadings and Memorandum of Law: These documents must cite the record on appeal, identify the relevant page number(s) in the hearing decision, transcript, exhibit number, or letter, and if the exhibit consists of multiple pages, the exhibit page number. Id. 15

Record (8 NYCRR 279.9) Introduction: Whether the Board of Education is the petitioner or the respondent, it must file with the Office of State Review, a copy of the IHO s decision, a bound copy of the transcript from the impartial hearing including a word index for the transcript, an electronic copy of the transcript, copies of pre hearing conference summaries or transcripts, a copy of the original exhibits accepted into evidence at the hearing, and an index to the exhibits. Id. 16

Record (8 NYCRR 279.9) (Cont d) Certification: The Board of Education must submit a signed certification with the record stating that the record submitted is a true and complete copy of the hearing record before the IHO. Id. Where petitioner is a party other than the Board of Education, the Board of Education must file the completed and certified record with the Office of State Review within ten (10) days after service of the notice of the intention to seek review. Where the Board of Education is the petitioner, it mustfiletherecordbeforetheihotogetherwith the petition for review. Id. 17

Record (8 NYCRR 279.9) (Cont d) Certification (cont d): An SRO may dismiss an appeal by the Board of Education when a complete and certified hearing record is not filed with the petition for review. Id. AnSRO'sdismissalofanappealfromanIHO's decision, when based on procedural grounds, will not be overturned unless it is arbitrary and capricious. B.C. v. Pine Plains Cent. Sch. Dist., 2013 U.S. Dist. LEXIS 127554 at *19 20. 18

Record (8 NYCRR 279.9) (Cont d) The "arbitrary and capricious" inquiry requires the Court to determine whether the SRO's decision was supported by a consideration of the relevant factors and whether a clear error of judgment occurred. R.S., 899 F. Supp. 2d at 290 91 (citation omitted). "The law of arbitrary and capricious administrative behavior...requires consistency in agencies' application of law," and "ultimately...is a rule of reasonableness" that safeguards against unpredictability. Id. citing Id.at 291. 19

Additional evidence (8 NYCRR 279.10(b)) IntheeventtheSROdeterminesthatadditional evidence is necessary, it may seek additional oral testimony or documentary evidence. Id. The SRO may conduct hearings for the purpose of taking additional evidence at a time and place which is reasonably convenient to the parties. The procedures for such hearing shall be consistent with the requirements of 8 NYCRR 200.5(j)(3). 20

Interim Determinations (8 NYCRR 279.10(d)) With the exception of a pendency determination, it is not permissible to appeal an IHO s ruling, decision, or refusal to decide an issue during a hearing. Id. However,either party may appeal any interim ruling, decision, or refusal to decide an issue to the SRO from a final determination of an IHO. Id. 21

Extensions of Time to Answer (8 NYCRR 279.10(e)) No party shall be granted an extension of time to answer the petition for review, interpose a crossappeal, or reply to an answer by the SRO unless timely application is made, upon written notice to all parties. Id. Such application shall be in writing, addressed to the Office of State Review, postmarked no later than the date on which the time to answer a reply expires, set forth the reasons for the request, and briefly state whether the other party consents or opposes the application for extension. Id. The time to respond to a pleading may not be extended solely by stipulation of the parties or their counsel. Id. 22

Computation of Days When computing the ten (10) day period in which service of an answer and cross appeal must be made, the date upon which personal service of the petition was made upon respondent is excluded. Id. If the answer was served by mail upon petitioner or petitioner s counsel, the date of mailing and the two (2) days subsequent thereto shall be excluded in the computation of the three (3) day period in which a reply to procedural defenses or a response to additional documentary evidence served with the answer may be served and filed by petitioner. Id. 23

Computation of Days (Cont d) If the last day for service of a notice of intention to seek review, a petition for review, an answer, or response to an answer falls on a Saturday or Sunday, service may be made on the following Monday; if the last day for such service falls on a legal holiday, service may be made on the following business day. Id. 24

Decision of SRO (8 NYCRR 279.12) The SRO s decision must be based solely upon the record, and is final, unless an aggrieved party seeks judicial review. Id. The decision of the SRO must be mailed by the Office of State Review to counsel for petitioner and respondent, parties appearing pro se and the Superintendent or Superintendent s designee of the school district involved as a party in the appeal. Id. The Superintendent, or the Superintendent s designee, must forward a copy of the decision as soon as practicable to the Principal and Chairperson of the Committee on Special Education of the school involved in developing the most recent Individualized Education Program ( IEP ) that wasincontentionintheappeal. Id. 25

Dismissal by SRO (8 NYCRR 279.13) An SRO may dismiss sua sponte a late petition for review. Id. However, an SRO may excuse a failure to timely serve or file a petition for review within the time specified for good cause shown. Id. The reasons for such failure shall be set forth in the petition for review. Id. 26

Appeal of SRO Decision The Decision of the SRO is final unless either party seeks review, in either State Supreme Court or Federal District Court, within four (4) months from the date of the SRO s decision. N.Y. Educ. Law 4404(3)(a). 27

PENDENCY If an SRO issues a placement decision that agrees with the parents, pendency during any subsequent appeal to a Court is the placement decision by the SRO. If the SRO issues a placement decision that agrees with the school district, pendency during the subsequent appeal to a Court is the student s current educational placement. Unless the school district and the parents or persons in parental relationship otherwise agree, the student shall remain in his or her then current educational placement during the pendency of an appeal of an SRO decision to either State or Federal Court, or, if applying for initial admission to a public school, shall be placed in the public school program until all such proceedings have been completed. N.Y. Educ. Law 4404(4)(b). 28

RECENT COURT AND SRO DECISIONS B.C. v. Pine Plains Cent. Sch. Dist., 2013 U.S. Dist. LEXIS 127554, supra: The Court granted, defendant, school district s motion to dismiss, and thus declined to review the merits of Plaintiff's claim because of Plaintiff s failure to timely and properly initiate her appeal to the SRO, and therefore failure to exhaust her administrative remedies under the IDEA. 29

R.S. and M.S., individually and on behalf of their minor child, O.S. v. Bedford Cent. Sch. Dist., 899 F. Supp. 2d 285 (S.D.N.Y. 2012) Plaintiffs appealed an SRO decision dismissing their appeal as untimely. In dismissing Plaintiffs' appeal, the SRO relied on 8NYCRR 279.2(b) and 279.13 which provide that "the petition for review shall be personally served upon the school district" within 35 days, id. at279.2(b); and that the SRO, "in his or her sole discretion, may excuse a failure to timely serve or file a petition for review within the time specified for good cause shown," id.at279.13. In this case Plaintiffs did not dispute that service on the school district was a day late, or show cause for their lateness. The Court granted defendant, school district s motion for summary judgment and denied as moot Plaintiffs' previous motion for an extension of time to file their notice of appeal because Plaintiffs were unable to circumvent the IDEA's exhaustion requirement. 30

T.W. v. Spencerport Cent. Sch. Dist., 891 F. Supp. 2d 438 (W.D.N.Y. 2012) The Court granted defendant, school district s motion to dismiss, stating in part, I conclude that plaintiffs have failed to exhaust their administrative remedies, or to plausibly allege that such exhaustion would have been futile, and have failed to state a claim upon which relief can be granted. The defendants' motions to dismiss the complaint pursuant to Fed. R. Civ. Proc. 12(b)(6) (Dkt. #11, #12) are granted, and the complaint is dismissed in its entirety, with prejudice. Id. at 13. 31

Appeal No. 12 120 (2013) Petitioner, school district, appealed the decision of an IHO which found that it failed to offer an appropriate educational program to respondents (the parents ) son and ordered it to reimburse the parents for their son s tuition costs at the McCarton School and home based services for the 2011 2012 school year. The parents crossappealed and sought modifications to the IHO decision. The SRO dismissed the appeal, finding that the school district failed to properly initiate the appeal, in that the District failed to serve the notice of appeal on a timely basis. 32

Appeal No. 12 100 (2013) Petitioner, school district, appealed from the IHO s decision which denied its motion to dismiss and found the district denied the student a FAPE for the 2011 2012 school year. The SRO dismissed the appeal, before reaching the merits of the case, because the district failed to properly initiate the appeal. The district s affidavit of service indicated that the petition was served on parents counsel, instead of serving the parents personally, which is not permitted by State regulations (see 8 NYCRR 275.8(a); 279.2(b)). Moreover, the parents did not agree to waive service by personal delivery. Accordingly, the SRO dismissed the appeal, finding that while the district filed a reply to the parents procedural defense, the reply did not assert any reason why the district failed to serve the parents on a timely basis, and there was no record of any attempt to personally serve the parents. 33

Appeal No. 12 077 (2012) Petitioner appealed from the decision of an IHO which denied her request to be reimbursed for her son s tuition costs at the Gow School for the 2011 2012 school year. The parent s affidavits of service indicated that thepetitionforreviewwasservedonthedistrict by mail and on counsel for the district by private overnight delivery service, which is not permitted by state regulations, and the district did not agree to waive service by personal delivery. 34

Appeal No. 12 077 (2012) (Cont d) The parent also did not file a reply responding to the district s procedural defense, or assert in the petition any reason why she could not timely personally serve the district or that the district agreed to waive personal service. There was also no indication in the record that the parent attempted to effectuate personal service of the petition on the district prior to mailing or made a request to an SRO to effectuate service by alternative means. Accordingly, the SRO dismissed the appeal. 35

Appeal No. 12 065 (2012) Petitioners (the parents) appealed from an interim decision of an IHO which ordered the appointment of a guardian ad litem for the student. The impartial hearing began on June 1, 2011, continued for additional hearing dates, but at the time of the appeal had not yet concluded. The IHO ordered the appointment of a guardian ad litem in an interim decision. The SRO found that the parents appeal was premature and dismissed the appeal since the authority of an SRO in direct appeals from interim decisions of IHOs is limited to pendency placement determinations. The SRO s decision was based upon 8 NYCRR 279.10(d). 36

Appeal No. 12 059 (2012) Petitioner (the district) appealed from the decision of an IHO which ordered it to reimburse respondents (the parents) for a portion of their son s tuition costs at the Norman Howard School for the 2011 2012 school year. The parents crossappealed, from the IHO s determination which denied their request for full tuition reimbursement. 37

Appeal No. 12 059 (2012) (Cont d) The IHO s decision was dated February 4, 2012, but was mailed on February 3, 2012. The date of the mailing and the four days subsequent were excluded in calculating the 35 day period within which the petition needed to be timely served. Therefore, the petition was required to be served personally on the parents no later than March 13, 2012. However, the district personally served the petition upon the parents on or before March 22, 2012, which was nine days late. The district requested the delay be excused, explaining that they failed to serve the petition on a timely basis, because of their belief that the parents were going to serve the district with an appeal. The SRO dismissed the appeal, finding that their reason didn t constitute good cause. 38

Appeal No. 12 059 (2012) (Cont d) The SRO also noted that even if the district s late petition had been accepted, it would still have been dismissed because while 8 NYCRR 275.8 states that respondents must be served between 6:00 a.m. and 9:00 p.m., the parents here were served at approximately 9:10 p.m. Therefore, the appeal was dismissed on this ground as well. 39

Appeal No. 12 042 (2012) Petitioner (the parent) appealed from the decision of an IHO which denied her request to be reimbursed for her son s tuition costs at the Kildonan School for the 2011 2012 school year. The SRO dismissed the appeal holding, Based upon the aforementioned nonconformities with State regulations including the parent s failure to initiate the appeal in a timely manner with proper service, I will exercise my discretion and dismiss the petition without determination of the merits of the parent s claims (8 NYCRR 279.13; see 8 NYCRR 1279.2(b), (c), 279.11...) 40

Appeal No. 12 042 (2012) (Cont d) In this appeal personal service of the second petition* upon the district did not occur, nor did service occur pursuant to any of the enumerated exceptions to personal service requirement. In this regard the parent s affidavit of service was not filed, as required to show that the second petition was served upon the district, and the district alleged that it was never served with the petition. *The first petition was rejected by the SRO because it exceeded 20 pages in length and thus failed to comply with 8 NYCRR 279.8(a)(5). 41

Appeal No. 12 042 (2012) (Cont d) In the petition, the parent did not offer any explanation for her failure to personally serve the petition. Given that the original petition was rejected by the Office of State Review, and in the absence of any showing that the parent personally served the district with the second petition, obtained an agreed upon waiver of personal service, or obtained permission from an SRO for service by means other than personal service, the SRO found that the parent did not effectuate proper service pursuant to 8 NYCRR 279.2. 42

Appeal No. 12 042 (2012) (Cont d): The SRO found that the appeal had not been initiated in a timely manner with proper service and the cause alleged in the petition was not sufficient to excuse the untimeliness of the parent s appeal. In the instant case, the IHO s decision was dated January 19, 2012. Accordingly, personal service on the district was required no later than February 28, 2012, after excluding the date of mailing and the four days subsequent thereto in calculating the 35 days within which the petition would have been timely served pursuant to 8 NYCRR 279.2(b). 43

Appeal No. 12 042 (2012) (Cont d): The parent failed to set forth any reasons in the petition to explain why she could not personally serve the petition within the requisite time period, and did not file a reply to the procedural defenses interposed by the district in its answer. The parent was represented by experienced counsel who ha[d] previously appeared before the Office of State Review. Under the circumstances of this case, I find that the petition was not properly served upon the district prior to the expiration of the parent s time to initiate an appeal (8 NYCRR 279.13; see 8 NYCRR 279.2[b]). 44

Appeal No. 12 042 (2012) (Cont d): In addition, the SRO held that the parent did not personally serve a notice of intention to seek review upon the district, which resulted in the delay of the hearing record being submitted to the Office of State Review. The SRO also noted that the parent s memorandum of law failed to comply with the regulations as it did not include a table of contents as required by 279.8(a)(6) of the Commissioner s regulations. Finally since the verification appeared to be a copy of the original verification from the rejected petition which was then affixed to the second petition, the SRO held that he could not conclude that the second petition was verified as required by 279.2 of the Commissioner s regulations. 45