A newsworthy State review officer (SRO) decision concerning finality and correction of IHO decisions, and how that topic affects timeliness of appeals to the SRO, is New York City Department of Education, No. 17-021, 117 LRP 25324 (NY SRO May 22, 2017). The lengthy opinion took up a request for three years of extended eligibility past age 21 for an alleged denial of FAPE from 2013 to 2016. The IHO denied that relief, while entering other relief, and the SRO dismissed the appeal.
The IHO issued a decision on the merits dated Jan. 24, 2017, stating that the parties agreed that the student had been denied FAPE for school years 2013-14, 2014-15, 2015-16, and a portion of 2016-17, and ordering ongoing placement of the student at Fusion with transportation, but stating the reservation that the IHO was wary about ordering prospective placement beyond the 2016-17 school year. The IHO also entered extensive compensatory education relief of 1,000 hours 1:1 basic skills tutoring and up to 100 hours vocational educational consulting services, but declined to extend the student’s age eligibility for special education in light of a lack of information about how the student would progress and whether he would graduate high school by the 2019-20 school year. Then, on Jan. 27, 2017, the IHO issued an “Amended Findings of Fact and Decision,” which provided that the compensatory services would terminate upon the student’s completing high school and further required transportation or reimbursement for transportation to and from the compensatory services.
The parent appealed to the SRO, saying that the remedy for the FAPE violation should have included extended age eligibility for three years beyond the school year when the student would turn 21. The request for review was served March 8, 2017, and although the school district did not object to the timeliness of the request, it told the SRO that the amended decision of Jan. 27 changed the substance of the Jan. 24 decision and so arguably exceeded the IHO’s authority. The parent responded that the Jan. 24 decision was issued erroneously, and that the Mar. 8 appeal was not late when time to serve the request for review of the Jan. 27 decision was counted.
The SRO dismissed the appeal. The opinion states that the IHO does not have authority to reopen a due process hearing, reconsider a prior decision, or retain jurisdiction to resolve future disputes between the parties to the hearing. The IHO decision is final unless appealed to the SRO. Therefore, the Jan. 24 decision ended the IHO’s jurisdiction over the case. Although the parent’s attorney requested the IHO to amend the decision to add an order for transportation to and from the compensatory services, and the IHO informed the parties that the Jan. 24 decision was issued in error before he had the chance to review it, the SRO declared that the IHO erred by issuing the Jan. 27 decision. Moreover, said the SRO, the Jan. 27 decision was issued beyond the last extension of the 45-day timeline, which ran out Jan. 26.
The SRO noted that New York has not created a law or regulation allowing clarification or reconsideration of a due process decision. New York could do so under U.S. Department of Education guidance, but the 45-day timeline must still be observed (citing Questions and Answers on IDEA Part B Dispute Resolution Procedures, 61 IDELR 232, at 6 (OSEP 2013)). The SRO said that “Allowing issuance of multiple final decisions with substantive changes would create confusion and throw the due process decision envisioned by Congress into disarray, resulting in multiple appeals from multiple final decisions.” The SRO declared that the Jan. 27 decision was a nullity, so the Jan. 24 decision was final and fully effective, although the parties could always make agreements between themselves on the provision of transportation for the compensatory services, something to which the school system did not appear to object. Accordingly, the parent’s appeal to the SRO was not timely within the 40-day period that started with the Jan. 24 decision, the last day of which was Mar. 6. The SRO said there was no good cause to excuse the failure to meet the deadline.
The SRO addressed the merits of the parent’s appeal, that is, the student’s extended special education eligibility past age 21, as an alternative ground for decision. The SRO said there was a distinction between compensatory services a student may receive after the eligibility period ends, and an extended eligibility period, which entails the obligation to hold IEP team meetings and develop IEPs on an annual basis. The SRO said that “even assuming that I possess the authority to order the district to provide the student with a FAPE for school years beyond the year that the student’s eligibility for special education under the IDEA expires, the hearing record does not support such relief in the present case.” Three years of age eligibility remained, giving the student plenty of time to achieve educational progress and graduate high school. The SRO declared that the IHO’s decision to decline the eligibility extension was reasonable under the circumstances.
As the SRO opinion notes, precedent conflicts on whether and when extended age eligibility is appropriate relief; this case may not have been the strongest vehicle to make such a claim because several years of eligibility remained for the student and the compensatory education ordered was extensive. From the perspective of the IHO, the more important aspect of the decision would appear to be its strong position that the IHO has no authority to reopen a due process hearing, reconsider a prior decision, or retain jurisdiction to resolve future disputes between the parties to the hearing, and its application of limitations to bar the appeal of a parent who relied on the amended decision as the relevant one. IHOs should take caution to be sure that the decision they issue is the one they intend to have as final, for there will be no chance for correction once the decision is issued. Most notably, if relief is ordered, the IHO should ensure that it is complete and addresses all aspects of what is required for the relief to be equitable.