New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth: District: 29 Hearing Requested By: Parent Date of Hearing: July 27, 2011 Hearing Officer: Barbara J. Ebenstein, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 27, 2011

Parents

Representative — DOE

This is New York City case #133222. On July 27, I opened an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA 2004), 20 U.S.C. Section 1415(f)(3), regarding the special education of . at the New York City Department of Education Impartial Hearing Office at 131 Livingston Street, Brooklyn, New York. The New York City Department of Education was represented by , representative, and the parent was pro se. The document admitted in this case is attached to this decision. STATEMENT OF FACTS:

The mother requested an impartial hearing on May 25th, 2011. The impartial hearing request was written on letterhead from the ’s Center and it was faxed by . The mother’s requests were for a home teacher to complete the school year and for summer school for summer 2011. “I would like to(o) have a teacher at my home so my son can finish school asap” and “My son also needs summer school.” (IHO Ex.1 at 3) I note that the parent makes no claim that there has been a deprivation of a “free appropriate public education” (FAPE) that arose from any alleged substantive errors, or that the student is entitled to any requested services as a result of a deprivation of a FAPE. I further note that the school year has ended and that the summer term at issue is about to end.

This impartial hearing was first scheduled for July 22nd, 2011, but the Department of Education did not reach the parent. I personally attempted to reach the parent by phone, but I failed to reach her and her phone does not accept voice mail. On Motion of the Department of Education, I granted an adjournment. This impartial hearing was rescheduled for July 27, 2011, and the parent was notified of the rescheduled hearing.

Just before the hearing started on July 27, 2011, , the New York City Department of Education representative, called the hearing room. He left a message to have me call 718-5557-2817. I called the number, and I spoke with the Department of Education representative personally. He explained to me that he only works part-time in the summer, and so he was not appearing in this hearing. I explained to him the concept of default. He stated that the Department of Education was defaulting in this case. I placed these facts into the record of this impartial hearing.

But the parent did not appear at this hearing either. I kept the hearing open for over an hour while both the Department of Education impartial hearing office case manager and I called the parent’s phone number. The case manager and I also called the ’s Center to contact or anyone else who could help us to reach the parent. Numerous phone calls were made to no avail. I find that the parent has not pursued this case, but she has also not withdrawn the case either.

CONCLUSION OF LAW

An impartial "hearing must be conducted at a time and place that is reasonably convenient to the parents and child involved." 34 C.F.R. § 300.515[d); see 8 NYCRR §200.5. Every reasonable attempt was made to do so in this matter. An impartial hearing officer must also provide all parties with an opportunity to present evidence and testimony, including the opportunity to confront and cross-examine witnesses. 34 C.F.R. § 300.512(a)(2); 8 NYCRR 200.5. And every reasonable attempt was made to provide such an opportunity in this matter.

An impartial hearing officer inappropriately conducted a hearing in the absence of the parent without any effort to locate the parent. See Application of a Student With A Disability, Appeal No. 11-018. The instant case is distinguished from Appeal No. 11-

018. In Appeal No. 11-018, the impartial hearing officer conducted the hearing in the absence of the parent without attempting to contact her. In this matter, every attempt to contact the parent was made repeatedly. The parties were given an opportunity to present witnesses and offer evidence into the hearing record to support a determination of whether there is a need for a teacher at home to complete the 2010 – 2011 school year or the need for summer school in 2011. The parties did not avail themselves of the opportunity.

Mootness may be raised at any stage of litigation. In re Kurtzman, 194 F.3d 54, 58 (2d Cir. 1999), Application of a Child with a Disability, Appeal No. 07-139. In general, a case becomes moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome. Murphy v. Hunt, 455 U.S. 478, 481 (1982). The dispute between the parties must at all stages be "real and live," and not "academic," or it risks becoming moot. See Lillbask v. State of Conn. Dep't of Educ., 397 F.3d 77, 84 (2d Cir. 2005); Application of a Child with a Disability, Appeal No. 07-139. “In general, cases dealing with issues such as desired changes in IEP’s, specific placements, and implementation disputes may become moot at the end of the school year because no meaningful relief can be granted.” Application of a Child with a Disability, Appeal No. 08-090. In the instant case, the issues involved specific services during the school year and during the summer.

A claim may not be moot despite the end of a school year for which the student's IEP was written, if the conduct complained of is "capable of repetition, yet evading review." See Honig v. Doe, 484 U.S. 305, 318-23 (1988); Application of a Child with a Disability, Appeal No. 04-038. This exception applies only in limited situations, City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983), and it is severely circumscribed. Knaust v. City of Kingston, 157 F.3d 86, 88 (2d Cir. 1998), Application of a Child Having a Disability, Appeal No. 02-109. It must be apparent that "the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration." Murphy v. Hunt, 455 U.S. 478, 482 (1982), Application of a Child with a Disability, Appeal No. 07139.

In the instant case, the 2010-2011 school year ended on June 30, 2011 before the first date of this impartial hearing, and the 2011 summer school only runs through Monday, August 15, 2011. There is no time to reschedule this hearing, to conduct it, and to issue a decision prior to the end of the summer session. Should . need a home teacher or summer school at some time in the future, such needs would be addressed by the Committee on Special Education (CSE) and a decision related to these matters would not evade review.

I find that the matter before me is moot and that it is not subject to the exception.

CONCLUSION

I find that the parent did not claim any denial of FAPE in her impartial hearing complaint. I also find that both parties have failed to pursue this impartial hearing which concerns a matter that is limited in time to the now completed 2010 – 2011 school year and the summer of 2011 which will conclude prior to any possible hearing decision. I find that this matter is now moot.

ORDER

This matter is dismissed with prejudice. Dated: August 3, 2011

_____________________________

BARBARA J. EBENSTEIN, ESQ.

Impartial Hearing Officer

BJE:jj

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department 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.”

(8NYCRR279.2[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 are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO THE RECORD ON

IMPARTIAL HEARING OFFICER

I Impartial Hearing Complaint and Cover Sheet, 5/26/11, 3pp.