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DECISION ON MOTION TO DISMISS COMPLAINT
Student's Name:
School District:
Hearing Requested By: Parent
Hearing Officer:
NYS Identifier No.:
On May 11, 2010, the mother of filed a due process complaint. I was designated to hear this matter on the same date.
In her complaint, the parent challenged the Committee on Special Education’s (“CSE’s”) recommendation that be placed time in a classroom. (IHO Ex. 1).
On May 18, 2010, the school district, by its attorney, served a response to the complaint, and attached the challenged April 30, 2010 Individualized Educational Program (“IEP”). (IHO Ex. 2).
The challenged IEP recommends a program to begin on May 12, 2010 and end on June 24, 2010. The program consists of class , for English , Math and Social Studies, with mainstreaming for science and specials, a shared assistant and a special class for study skills, with related services of and and twice per week. The CSE tabled recommendations for the 2010-11 school year so that the parent’s questions regarding an program could be answered. (IHO Ex. 2).
A pre-hearing telephone conference was held on June 7, 2010, including a discussion as to whether the parent’s complaint will become moot at the end of the school year (which ended on June 23, 2010). Both parties agreed that the parent’s due process complaint referred to the April 30, 2010, and that a subsequent IEP, dated June 1, 2010 included recommendations for the 2010-2011 school year. The parent indicated she also wished to challenge the June 1, 2010 IEP. A discussion was held as to whether she should do so by seeking to amend her complaint, or by requesting a new impartial hearing. She was advised that either option would trigger a new resolution period. She was invited to make a written submission within one week to indicate how she wishes to proceed. It was also recommended that she consult with counsel or an advocate. (IHO Ex. 3).
On June 14, 2010, the parent wrote that her prior counsel was out of the country, and asked to delay this matter until she returns. (IHO Ex. 3).
On the same date, the school district’s attorney made a written motion to dismiss the due process request as moot, and objected to the parent’s request for an adjournment to secure counsel. (IHO Ex. 4). The parent responded to the school district’s attorney written motion, arguing that an exception to the mootness doctrine applied. (IHO Ex. 5).
I ruled that the parent was entitled to an adjournment to consult with counsel, and directed that the parent or her attorney respond to the school district’s motion to dismiss by no later than July 9, 2010. I also requested that the parties submit a copy of the June 1, 2010 IEP to me. (IHO Ex. 6). Subsequently, a copy of the June 1, 2010 IEP was provided by the school district’s attorney. (IHO Ex. 7). The June 1, 2010 IEP recommends a program for the 2010-2011 school year, which is identical to the program recommended in the prior IEP (for the period from May 12, 2010 to June 24, 2010) except that one weekly session of group was eliminated. The IEP further notes that may be considered for the class after the first marking period.
As of July 12, 2010, neither the parent nor her attorney submitted any further response to the school district’s motion to dismiss the due process request as moot.
Discussion
The dispute the parties must at all stages be “real and live”, or it risks becoming moot. See Lillbask v. State of Conn. Dep’t of Educ., 397F. 3d 77, 84 (2d Cir 2005); Application of a Student with a Disability, No. 08-076. The case will not be considered moot if it is “capable if repetition, yet evading review”. (Honig v. Doe, 484 U.S. 305 (1988). The parent argues that this exception to the mootness doctrine is applicable here, as the June 1, 2010 IEP makes the exact same recommendation as was made in the earlier IEP, which she challenged. (IHO Ex. 5).
While the recommendation from the April 30, 2010 IEP has been repeated in the June 1, 2010 IEP, I find that it will not evade review. Given mandated timelines for due process procedures, a challenge to a June 1, IEP will not evade review, upon presentation of a timely due process complaint. See Application of a Child with a Disability, Appeal No. 06-060.
ORDER
For the foregoing reasons, it is hereby ordered that the due process complaint is dismissed as moot.
Dated: July 12, 2010
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or Board of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 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 days subsequent thereto shall be excluded in computing the 25- or 35-day period.” (8 NYCRR 279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal can be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO RECORD
Impartial Hearing Officer Exhibits
1. Request for Due Process (5/6/10) 2pp.
2. Answer (5/18/10) 11 pp.
3. Email Correspondence (6/7/10; and 6/14/10) 1 p.
4. Email Correspondence (Motion to Dismiss) 6/14/10) 1 p.
5. E Mail Correspondence from parent (6/14/10) 1 p.
6. E Mail Correspondence from IHO (6/17/10) 1 p.
7. IEP (6/1/10) 7 pp.