State-level review decisions in due process cases, though they lack binding force outside the cases themselves, often have instructive value for Impartial Hearing Officers. That is the case with Decision No. 190028, (SRO No. 20-080), N.Y.S. Educ. Dep’t State Review Officer, June 18, 2020.

The case involved a student with language impairment and other disabilities. In an earlier due process proceeding, an IHO ruled that the school system had denied the student a free, appropriate public education during the 2015-16, 2016-17, and 2017-18 school years. An interim disposition required an independent neuropsychological evaluation, which led to a December 2017, IEP meeting and IEP. The student began attending the Aaron School in May 2018. The IHO issued a final decision on June 25, 2018, which ordered tuition reimbursement for the parental placement of the child at the Aaron School during the 2017-18 school year, as well as compensatory services. The final decision was not appealed, and the parties subsequently entered into a settlement agreement regarding the parent’s claim that the school system failed to offer the student a FAPE during the 2018-19 school year. Near the end of that school year, on May 29, 2019, the parent entered a re-enrollment contract with the Aaron School for the 2019-20 school year. The parent never received notice of an IEP meeting or placement recommendation for the 2019-20 school year, and early in August wrote the school system that she would place the student unilaterally at Aaron for that year and seek funding from the school system. The parent filed for due process on October 7, 2019. The IHO in this proceeding made an interim ruling on October 15, 2019 that the parties agreed the Aaron School was the student’s pendency placement based on the unappealed 2018 IHO decision, that the school system had to provide the pendency services, and that the failure to fund the services before the October 15, 2019 ruling was itself a denial of FAPE. The school system objected on the record to the last of those findings, and the IHO said on the record that the system could present its case on the merits at the full hearing.

A one-day hearing on March 27, 2020 led to a final decision on March 31. The IHO found a denial of FAPE for the 2019-20 school year. As described in the SRO decision, the IHO held first that the school system would not equitably be permitted to fail to offer the student a FAPE and simultaneously refuse to reimburse the parent for exercising self-help by means of a unilateral placement. Second, the IHO held that the Aaron School placement stopped being a unilateral placement when tuition was awarded in the unappealed June 25, 2018 hearing decision, and that the Aaron School continued as the pendency placement due to that decision, so it was the system’s burden to show it offered the student FAPE and that the Aaron School was not an appropriate placement. The system failed on both issues. The IHO held that the student’s placement continued to be at the Aaron School and ordered the system to fund the placement for 2019-20 and reimburse the parent any out-of-pocket expenses.

The SRO agreed with the school system that the Aaron School should not have been treated as the pendency placement as the IHO had ruled. Instead, the SRO agreed with the initial view of the parties that the case was to be treated as a private placement-reimbursement case. The SRO said that pendency and appropriateness of placement were distinct issues, and that each school year should be analyzed separately. The SRO read the June 2018 IHO decision as providing a remedy specific to the 2017-2018 school year and said there was no pending proceeding to trigger stay-put that would operate for the 2019-20 school year.

The school system contended that because the IHO viewed the case as turning on stay-put, it was not afforded the opportunity to cross-examine witnesses supporting the parent’s contention that the placement at the Aaron School was appropriate. At the due process hearing, which was held over video due to the pandemic, the school system lawyer would not say whether system was conceding a denial of FAPE, but offered in evidence only the 2017 IEP and a 2020 IEP from five months after the due process complaint was filed. The IHO made a finding on the record that the system denied the student FAPE for 2019-20. The parent then submitted 15 exhibits, including 3 affidavits in lieu of live testimony. The school system objected to the November 2017 neuropsychological evaluation as hearsay, and made the same objection to a February 2020 school progress report as well as to portions of the affidavits. The IHO overruled the objections, noting that due process hearings do not observe strict rules of evidence and the school system itself routinely admits school documents at hearings without authentication. The witnesses who testified by affidavit were made available for cross-examination, but after the cross-examination of the Aaron School’s principal had continued for a while, with the IHO asking at points about the goal of the questions and requesting that the examination be limited to essential matters, the IHO stated that the Aaron School was to be considered the pendency placement and ended the cross-examination.

The SRO said that this decision, based on what the SRO viewed as a wrong approach to pendency, was error, but that the error did not warrant remand for a new hearing. The school system’s complaint that the Aaron School used uncertified teachers was irrelevant, for a private placement may be appropriate even if the teachers are not certified. Moreover, if there was a deficiency in the showing that the placement met the student’s needs, it was traceable to the public school system’s failure to introduce any evidence of the student’s needs in satisfaction of its burden at hearing under state law. In addition, the school system could always have called the witnesses it wished to cross-examine. The two key documents for the parent were the 2017 neuropsychological evaluation and the 2020 progress report. The SRO held that hearsay rules were not to be applied to exclude those documents and stated that the system had the means to challenge the content of the exhibits if it had called witnesses. The system had in fact relied on the evaluation in formulating the December 2017 IEP and on the progress report in formulating the belated 2020 IEP.

Agreeing that the school system effectively conceded denial of FAPE, the SRO took up the issue of whether the Aaron School placement was appropriate. Discussing the documentary evidence in exhaustive detail through nine single-spaced pages, the SRO found that it overwhelmingly supported the conclusion that the Aaron School was appropriate for 2019-20 even without evidence from any of the witnesses who potentially could have testified. The SRO similarly found that equitable considerations favored payment of the tuition on the basis of the record and uncontested facts. Thus the parent prevailed on the merits, and no remand would be ordered.

Before considering the merits, however, the SRO commented on the litigation posture of the school system and the IHO’s reaction to it. The SRO said that although the IHO made an error about the pendency issue, “his ire with the litigation strategy against the parent was not misplaced.” The public school’s attorney’s statements about whether the system was conceding a denial of FAPE were evasive, and the system did not ever say which program was offered the student for 2019-20. “Next, adding insult to injury,” the school system did not even provide a pendency placement until forced to by an IHO order. The SRO said the IHO was correct in holding that failure to provide a pendency placement was potentially an independent basis for a FAPE denial. The system’s attorney said it was resting on “Prong One” of the reimbursement analysis, but never shouldered the burden of production or persuasion on FAPE but instead as a part of its litigation strategy objected to evidence on dubious hearsay grounds and engaged in unfocused cross-examination until the IHO curtailed the examination. The SRO summarized, “The district’s conduct in this case is reprehensible as its objectives appeared to be geared primarily toward evading the procedural protections afforded to the parent and thwarting the impartial hearing process rather than attempting to mount legitimate defenses against the parent’s claims.

The SRO continued by noting, “A review of the district’s conduct in this proceeding exhibits at best incompetence or ignorance of the relevant legal standards or at least flagrant bad faith.” The SRO said that it had no jurisdiction over Section 504 or Americans with Disabilities Act discrimination claims, but pointed out that denials of FAPE may support valid discrimination claims and that gross misjudgment, bad faith, and deliberate indifference may be found in cases of failure to provide services pursuant to a valid IEP. The SRO did not make any findings on the facts of the case with regard to potential discrimination claims and repeated the point about lacking jurisdiction over claims based on the discrimination statutes. This did not stop the SRO from declaring: “However, that does not mean that administrative hearing officers must sit by in idle silence without any comment on what passes before them.”

It is noteworthy in this case that, in response to the “reprehensible” conduct of the school system’s attorney in an attempt to thwart the hearing process, the IHO did not sit idly. Rather, the IHO took control of, and fairly managed, the process by, among other things, when the school system rested on the FAPE prong and its attorney made evasive responses to the IHO’s pointed questions regarding its position on same, ruling right then for the sake of clarity and efficiency that the school system had denied FAPE. The IHO also took the steps of curtailing the system’s attorney’s unfocused cross-examination to “essential” inquiries, admonishing its attorney for making objections based on the rules of evidence, most notably hearsay, when such rules do not apply to IDEA’s hearing process. Unless abuses of the hearing process are firmly and fairly addressed by the IHO, not only will the opposing party be denied due process, but the objectives and goals of IDEA’s hearing process will be frustrated and maybe totally undercut.