Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parents

Hearing Officer: .

Record Closed:

NAMES AND TITLES OF PERSONS WHO APPEARED

This matter came before me on , pursuant to the Individuals with Disabilities Education Act (IDEA) 20 U.S.C.§1415(f)(1). The compliance date was extended pursuant to the parties’ request. Appended to the record are lists of persons in attendance and documents submitted into evidence.

BACKGROUND

The student is a and is in the grade. attends the is an out-of-state SED placement.(Exh.

4) The parents requested this hearing seeking an immediate Order granting . An Order granting further and educational placement at , the student, reaches the age of . In addition, inter alia, the parents sought an Order to compel the District to provide and to change the student’s IEP classification from. The parents subsequently withdrew the request for the classification change. The remaining relief requested was an Order granting Petitioners prevailing party status and granting attorney fees and costs.((Tr. at 7; Exh. A)

The parties were able to resolve most of the demands raised in the complaint partially through our telephone conferences and subsequently at the CSE IEP meeting.(Tr. 5-6) , the parents’ attorney acknowledged at the hearing, that Hearing Officers do not have the authority to grant attorney fees and prevailing party status. position is that the only outstanding matter to be addressed is a declaration by this Hearing Officer, that he was successful in achieving the demands that were set forth in the parents’ Impartial Hearing Demand. (Tr.8-9)

attorney responded to the Petitioner’s Due Process Complaint, he argued inter alia, that determined that the student would graduate with , not the District. The student’s then anticipated graduation, would relieve the District of any obligation to provide special education and related services to the student at for the school year. Any continued placement, after graduation, at based on possible needs is not the responsibility of the District. In addition, contends that any claims for relief to remedy the school year, is waived pursuant to a Settlement Agreement . Furthermore, pursuant to the aforementioned Settlement Agreement, any claims for relief with respect to the school year, based on alleged acts or omissions raised in prior impartial due process complaints against the District were not to be used as evidence against the District in any future judicial proceedings.(Exh. 2)

The District moved to dismiss the complaint in its entirety; it argued, inter alia that school year is moot since the student is attending and that the District was released from claims arising from the prior school years pursuant to the settlement agreement (Exh. 1). The District’s position is that there should be a finding that there were never any real live issues or controversies and that the prevailing party status/successful party matter must be addressed via application in the federal court.(Tr. at 17 and 19-20)

FINDINGS OF FACT AND DECISION

I have reviewed all the evidence entered into the record; the parties agreed that there are two remaining issues that must be addressed. The first issue pertains to request for a declaration that the parents are the successful party; he argues that … “a hearing officer inherently has the power to declare winners and losers in these circumstances”. (Tr. at 102) The authority to declare prevailing party status has been clearly set forth in the IDEA. The IDEA provides in pertinent part that:

In any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to a prevailing party who is the parent/guardian of a child with a disability. (20 U.S.C.§1415(i)(3)(B)

The Individuals with Disabilities Act (IDEA) has clearly established that only a district court of the United States has jurisdiction to declare prevailing party status and to award attorney fees. Application of a Child with a Disability, SRO No. 10-064 (2010); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332, [2d Cir. 2005]; Application of a School District, SRO No. 10-082 (2010); Application of a Child with a Disability, SRO No. 01011(2001) Based on the foregoing, I find that a declaration that the parents are the “successful party” is equivalent to declaring that the parents are the “prevailing party” and clearly neither are within my jurisdiction as a Hearing Officer.

attorney, argues that there... “were never real live controversies in this matter.” The parties and their attorneys , pertaining to this student, dating back to the school year; of which some matters are still pending before . (Exh. A).The attorneys and the have an acrimonious relationship which was clearly evidenced during . The parents’ attorney stated at the outset of oral arguments that that the relief sought in their Impartial Hearing Demand, for an order granting and educational placement until the has been further affirmed at a CSE meeting held . In addition, the other demands in the complaint, and other issues have been resolved to the parents’ satisfaction and the parents have no more issues regarding the relief sought, other than issues relating to declaring parents the successful party and attorney fees.(Tr. 5-7)

The District cites cases to support its position that this Hearing Officer should consider and find in favor of the District’s argument for mootness. However, the District’s cited cases which are distinguishable from the instant matter, to the extent, each case had been adjudicated on the merits and the relief sought had been already achieved in the administrative hearing and appeals process. M.S. v. New York City Dept. of Educ., 734 F. Supp 2d 271 (E.D.N.Y. 2010); E.G. and M.G. v. City Sch. Dist. Of New Rochelle, 606 F. Supp. 2d 384(2009).I find that the parties have resolved the majority of the issues raised in the Impartial Hearing Demand, without judicial determination, the results have been memorialized in writing and accordingly those issues are therefore rendered moot. The remaining issues outstanding are pertaining to prevailing party status and attorney fees which must be addressed in federal court

Dated:

Impartial Hearing Officer

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.

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DOCUMENTATION ENTERED INTO THE RECORD ON MAY 8, 2012

Parent

A Impartial Hearing Demand, with Exhibits 1-14, 97 pages

B Opposition To Motion Memorandum of Law, 2/17/12, with Exhibits A-G, 49 pages

District

1 Letter Motion To Dismiss, 1/20/12, 10 pages

2 Answer, 6/16/11, with Exhibits A-C, 30 pages

3 Correspondence dated 6/30/11; 7/6/11 and 7/25/11, 4 pages

4 Memorandum of Law with affidavit of service, 3/16/12, 26 pages

5 Affirmation, 3/16/12, with Exhibits1-27 and A-C, 156 pages

POST HEARING ADMISSION OF EVIDENCE INTO THE RECORD ON

6 CSE Meeting, 5/3/11, 3CDs