NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District: Hearing Requested By: Parent Date of Hearing: September 8, 2010
February 9, 2011
February 28, 2011
March 16, 2011
March 23, 2011 Actual Record Close Date: January 6, 2012 Hearing Officer: James P. Walsh, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 8, 2010
Attorney — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 9, 2011
Attorney — Student
Parents
Attorney — DOE
School Psychologist, (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 28, 2011
Attorney — Student
Parents
Attorney — DOE
Classroom Teacher (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 16, 2011
Attorney — Student
Hospital for — Student
(via telephone) — Student
Attorney, Firm of, for Hospital for — Student
(via telephone) — Student
Curriculum, Intake and IEP Coordinator, Early — Student
Learning Center (via telephone) — Student
Attorney — DOE
Assistant Principal- (via telephone) — DOE
School Psychologist (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 23, 2011
Attorney — Student
Parents
(via telephone) — Student
(via telephone) — Student
Attorney — DOE
The Matter of (hereinafter referred to as “Student”) came before Impartial Hearing Officer William Wall for determination in accordance with the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(1) and Article 89 of the Education Law of the State of New York,first on September 8, 2010 for a determination of Student’s Pendency program , and thereafter on February 9, 2011, February 28, 2011, March 16, 2011 and March 23, 2011for a determination on the merits.
The Hearing before Hearing Officer Wall concluded on March 23, 2011. On December 7, 2011, Impartial Hearing Officer Wall, before rendering a Decision, recused himself and the undersigned was appointed to continue and conclude proceedings. I have been provided with copies of transcripts of all hearings, which have been reviewed, as well as with copies of the exhibits received into evidence by Hearing Officer Wall. The Actual Record Close Date is January 6, 2012.
This formal impartial hearing process was initiated on behalf of Parents by correspondence sent by the Law Offices of and Associates, dated July 18, 2010 and received by the New York City Department of Education’s Impartial Hearing Office on July 20, 2010 (Exhibit A). The Due Process Complaint Notice so filed challenged the appropriateness of the Individualized Education Program (I.E.P.) that had been established by District’s Committee on Special Education (C.S.E.) for Student for the 2010-2011 school year, as well as challenging the appropriateness of the placement offered to Student for that school year. Parents asserted that Student had been denied a free, appropriate public education (FAPE). Parents requested that Student remain in her previous placement at the ( ) and receive the same services as were provided to Student during that previous school year, until such time as the District’s Committee on Special Education (C.S.E.) fully evaluated Student and prepared an appropriate I.E.P. (Exhibit A).
On the first day of hearing, held on September 8, 2010, Hearing Officer Wall heard application for an Interim Order of Pendency, so as to establish the program to which Student would be entitled until the conclusion of this administrative process. Thereafter, Hearing Officer Wall issued an Order on Pendency (I.H.O. Exhibit I), dated October 21, 2010. In such Order, Pendency was established as follows:
“Pendency is established for the following placement and services, commencing July 18, 2010, the date of the Impartial Hearing Request:
Program: Full Time Special Class at Learning
with a student to teacher and para ratio of ; Full Time
Paraprofessional, ( ); , ( ) and ( ); , ( ); and & ,
( ) and ).
Home-Based Program: , ( ) and ( ) to be provided by Support by Design; and & ,( ) to be provided by .
Pendency shall continue until the matter is resolved through settlement or an unappealed order of a Hearing Officer or the unappealed final order of an appellate officer or court.”
On February 9, 2011, the first date for a hearing on the merits of the case, Parents’ attorney, noting the alleged errors in the creation of Student’s I.E.P. and the inappropriateness of the placement offered to Student for the 2010-2011 school year, deviated from Parents’ original request that Student remain in her previous placement at the ( ) and receive the same services as were provided to Student during that previous school year, until such time as the District’s Committee on Special Education (C.S.E.) fully evaluated Student and prepared an appropriate I.E.P. (Exhibit A), and simply requested “…that the Hearing Officer order the District to fund [Student] in her pendency placement for the entirety of the 2010-2011 school year” (T.R. 23).
The hearing on the merits of the case then proceeded, with District presenting the testimony of Witness , a School Psychologist involved in the creation of Student’s I.E.P., Witness , the Special Education Teacher of Student’s proposed class, and Witness , the Assistant Principal of the school in which Student’s proposed class was located, all relative to the development of Student’s I.E.P. and the appropriateness of the placement offered. Parents then followed with the presentation of the testimony of Witness , Student’s , Witness , the Curriculum, Intake and IEP Coordinator at the , Witness , Student’s and Witness , Student’s / , and that of Student’s Parent, all relative to the inappropriateness of the proposed program and placement . At the conclusion of the case, Parents’ attorney again repeated her request that “…the Hearing Officer order the District to continue to fund [Student] in her placement at with related services for the remainder of the 2010-2011 school year” (T.R. 457).
While the major part of the school year had expired by the time the Due Process Hearing concluded on March 23, 2011, there was sufficient time remaining in the school year for a Decision on the merits to be rendered. However, none was by the end of June, 2011, when the 2010-2011 school year came to a close.
In light of the substantial amount of time that has passed since the conclusion of the 2010-2011 school year, I see no purpose in reviewing the presented testimony or determining whether District established the appropriateness of its proposed program or whether, failing that, Parents established the inappropriateness of I.EP. prepared for Student by District’s C.S.E. or the inappropriateness of the proffered placement, or the appropriateness of Parents’ requests, as all such issues have become moot by the passage of time.
The 2010-2011 school year has now fully concluded. Parents’ request that the District continue to fund Student’s placement at the has been fully realized by the provisions of the Pendency Order issued by Hearing Officer Wall. Indeed, that Order continues in effect. Thus, Parents’ request that, for the 20102011 school year, Student remain at the with both her Center-Based Program and her Home-Based Program provided at District expense, has been fully met. Nothing could be awarded to Parents by a Decision issued now that Parents have not fully already received. There no longer any live controversy regarding Student’s program or placement. As noted by the Office of State Review on a number of occasions, issues that no longer remain viable due to the passage of time become moot (Application of (Blank) , Appeal No. 11-076; Application of (Blank) Appeal No. 097; Application of (Blank), Appeal No. 11-099). As was noted by the State Review Officer in Application of (Blank), Appeal No. 11-099, rendered on October 17, 2011:
“In this case, there is no longer any controversy relating to the parties” dispute over the placement or program offered by the district for the 2010-2011 school year. Here, even if a determination on the merits demonstrated that the district did offer the student a FAPE for the 2010-2011 school year, in this instance, it would have no actual effect on the parties because the 2010-2011 school year expired on June 30, 3011, and the student remained entitled to his pendency placement at funded by district through the conclusion of the administrative due process.”
11-099 at p.6
(See also those cases cited by the State Review Officer in each of the above-cited decisions). In such circumstance, the matter must be dismissed.
ORDER
Based upon the above, it is HEREBY ORDERED that Parent’s Complaint be, and the same hereby is, DISMISSED AS MOOT.
Dated: January 9, 2012
_____________________________
JAMES P. WALSH, ESQ.
Impartial Hearing Officer
JPW: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.
DOCUMENTS ENTERED INTO RECORD ON SEPTEMBER 8, 2010
PARENT
A Demand For Due Process, 7/18/10, 5 pp. B Answer to Impartial Hearing Request, 7/26/10, 4 pp. C CPSE IEP, 9/8/09, 13 pp. D CSE IEP, 3/18/10, 13 pp.
DOCUMENTS ENTERED INTO RECORD ON FEBRUARY 9, 2011
PARENT
E Final Notice of Recommendation, 5/25/10, 1 p. F Letter to , 6/7/10, 1 p. G Class Profile, 2/2/11, 1 p.
DEPARTMENT OF EDUCATION
1 IEP, 3/18/10, 13 pp. 2 Final Notice of Recommendation, 5/25/10, 1 p. 3 CSE Report, 1/6/10, 3 pp 4 Summary Form, 3/18/10,[9] pp. 5 and Progress Report, 1/4/10., 2 pp. 6 Report, 12/15/09, 2 pp. 7 Report, 1/2010, 2 pp. 8 Parent’s Survey, 2/1/10, 1 p.
10 Turning Five Observation, 2/8/10, 1 p.
IMPARTIAL HEARING OFFICER
I E-mail, 1 p.
DOCUMENTS ENTERED INTO RECORD ON FEBRUARY 28, 2011
PARENT
E Final Notice of Recommendation, 5/25/10, 1 p. F Letter to , 6/7/10, 1 p. G Class Profile, 2/2/11, 1 p. N.B. The above Exhibits had already been received in Evidence on February 9, 2011 H CSE Educational Progress Report, 1/6/11, 4 pp. I CSE / Progress Report, 1/5/11, 3 pp. J HSS Report, 1/31/11, 4 pp. K , 1/6/11, 2 pp. L HSS Report, 1/25/11, 2 pp. M CPEL Report, 12/23/10, 2 pp. N IEP, 11 pp. O Class Profile, 2 pp.
DOCUMENTS ENTERED INTO RECORD ON MARCH 16, 2011
PARENT
P Progress Report, 2/18/11, 2 pp. Q Second Letter to , 9/7/10, 2 pp. R Turning Five Summary Report, 3/10/10, 4 pp.
DOCUMENTS ENTERED INTO RECORD ONJANUARY 6, 2010
IMPARTIAL HEARING OFFICER
II Order on Pendency by I.H.O. , 10/21/10, 4 pp.
Footnotes
[9] Teacher Questionnaire, 2/8/10, 1 p.