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: August 10, 2010
December 15, 2010
February 14, 2011
March 30, 2011
March 31, 2011
April 13, 2011
April 27, 2011 Actual Record Close Date: January 6, 2012 Hearing Officer: James P. Walsh, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 10, 2010
Attorney — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 15, 2010
Attorney — Student
Attorney — DOE
School Psychologist (via telephone) — DOE
Unit Coordinator, (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 14, 2011
Attorney — Student
Attorney — Student
Parents
Attorney — DOE
Attorney — DOE
Unit Coordinator (via telephone) — DOE
Teacher (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 30, 2011
Parents
Parents
DOE Placement (via telephone) — Student
Attorney — DOE
Teacher (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 31, 2011
Attorney — Student
Attorney — Student
Parents
Teacher- School (via telephone) — Student
- School (via telephone) — Student
- School (via telephone) — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 13, 2011
Attorney — Student
Attorney — Student
Parents
Program Director- School — Student
Director- (via telephone) — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 27, 2011
Attorney — Student
Parents
Attorney — DOE
The Matter of . (hereinafter referred to as “Student”) came before Impartial Hearing Officer 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 August 10, 2010 for a determination of Student’s Pendency program , and thereafter on December 15, 2010, February 14, 2011, March 30, 2011, March 31, 2011, April 13, 2011 and April 27, 2011 for a determination on the merits. The Hearing before Hearing Officer concluded on April 27, 2011. On December 8, 2011, Impartial Hearing Officer , before rendering a Decision, recused himself and the undersigned appointed to continue and conclude proceedings. I have been provided with copies of transcripts of all hearings, which have been reviewed, as well as a Post-Hearing brief submitted by Counsel for Parents. I have not, however, been provided with copies of the exhibits received into evidence by Hearing Officer . For reasons hereinafter stated, I will proceed to render the required Decision without having such exhibits made available or reviewed. 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 Office of & Associates, dated July 1, 2010 and received by the New York City Department of Education’s Impartial Hearing Office on July 2, 2010 (I.H.O. Exhibit I). 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 the 2010-2011 school year and sought reimbursement and prospective payment of tuition and other costs related to the Student’s attendance at The School for the 2010-2011 school year, as well as hours per week of and outside of school; six hours per week of home- and community-based SEIT support services; hours per week of parent training and counseling; and transportation to and from The School, all on a twelve-month basis. Parents’ Due Process Complaint Notice was thereafter amended by Parents’ counsel, but simply to amend the Proposed Solution so as to delete the demand for hours per week of home- and community-based SEIT support services (I.H.O. Exhibit II).
On the first day of hearing, held on August 10, 2010, Hearing Officer 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 issued such Order on Pendency (I.H.O. Exhibit III), dated September 13, 2010. In such Order, Pendency was established at The School for the twelve-month 2010-2011 school year. The Order stated that:
“Pendency includes tuition, fees and transportation at the established IRS rate. In addition, the student is to receive five hours of speech on a one-to-one basis. The Department of Education (DOE) is directed to issue RSAs or any other authorizations needed to implement this part of the order.
Pendency attaches as of July 1, 2010, the date of the request for the Impartial Hearing. In addition, pursuant to this Order, without opposition from the Department of Education, a one-to-one crisis management paraprofessional is also to include in this
Pendency order as the student has had one for the last few years and both parties recognize the paraprofessional is an essential part of the student’s educational program.
Finally, payment is to be prospective for the current year,
Proof of attendance shall be submitted to the DOE for payment to be made. Pendency shall be in full force and effect until this matter is resolved through settlement or a final unappealed order of an appropriate Hearing Officer or Court,”
(I.H.O. Exhibit III)
Hearing Officer thereafter issued an Amended Order on Pendency (I.H.O. Exhibit IV), dated October 12, 2010, which left unaltered the original Order, but provided for payments to Parents for reimbursement of tuition, rather than prospectively. The reason for such change does not appear in the Amended Order, but is irrelevant to this Decision.
A review of the transcripts of this matter evidences that such followed the usual path for reimbursement proceedings, in that it began with the presentation of District Witnesses , , and , addressing the District’s proposed program for Student and the presentation of Witnesses , , and of The School, as well as and Student’s Parent, addressing the appropriateness of Parents’ unilateral placement of Student at The School. However, 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 appropriateness of their unilateral placement and entitlement to reimbursement, as all such issues have become moot by the passage of time.
The 2010-2011 school year has now fully concluded. Parents’ request for reimbursement has been fully satisfied by the provisions of the Pendency Order issued by Hearing Officer . Pendency began on July 1, 2010, the first day of the 2010-2011 school year. It continues in effect. Thus, Parents’ request that, for the 2010-2011 school year, they be awarded reimbursement and prospective funding, to include tuition and costs for The School; five hours per week of -to- and outside of school, two hours per week of parent training and counseling and transportation to and from The School, on a twelve-month basis (I..H.O Exhibit II), has been fully met. Nothing could be awarded to Parents by a Decision issued now that Parents have not fully already received. Indeed, Parents have also received the services of a -toparaprofessional, something Parents had not sought in their Due Process Complaint, but which was ordered by Hearing Officer in his Orders on Pendency (I.H.O. Exhibits III and IV).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). In a decision eerily appropriate to the instant proceeding, it was noted by the State Review Officer in Application of (Blank), Appeal No. 11-099:
“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.
ORDER
Based upon the above, it is HEREBY ORDERED that Parent’s Complaint be, and the same hereby is, DISMISSED AS MOOT. Dated: January 11, 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.
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
A Amended Demand for Due Process 7/12/10, 7 pp. B Demand for Due Process with Fax Cover and Fax Confirmation Sheets Attached,
7/1/10, 9 pp. C Findings of Fact and Decision By , 4/6/10, 13 pp. D NYC DOE IEP, 1/12/10, 17 pp. E IEP Envelop, 1/12/10, 1 p. F Answer to NYCDOE By , Associate Investigator, 7/12/10, 5 pp. G Letter to CSE Chairperson with Fax Confirmation, 6/17/10, 3 pp. H Final Notice of Recommendation, 6/10/10, 2 pp. I Review Notice, NYCDOE, 9/22/10, 1 p. J Interdisciplinary Progress Report Update- School By: ,
M.A., OTR/L, , M.S., CCC-SLP, , MPT,
, B.S., , Ph.D., LCAT, MT-BC, NRMT, 6/2010, 13 pp. K Interdisciplinary Report of Progress- School, By: Wiener, M.A.,
OTR/L, , M.S., CCC-SLP, , MPT,
, B.S., , Ph.D., LCAT, MT-BC, NRMT, 12/2009, 12 pp. L Classroom Observation, NYCDOE By: , M.S. Ed., School Psychologist, 11/12/09, 3 pp. M Related Service Student Progress Report, Center for Pediatric
Therapy By: M.S. CCC-SLP, TSSLD, , M.A.,
CF-SLP, TSSLD, 12/5/09, 5 pp. N Enrollment Contract- School, 2010/2011, 4 pp. O Payment Schedule with Proof of Payment- School, 2010/2011, 4 pp. P Subpoena and Fax Confirmation, 2010/2011, 13 pp. Q Paraprofessional Qualifications, Undated, 2 pp. R Consent Order, 8/3/88, 66 pp. S Standards and Procedures Manual, 2/2009, 305 pp.
DEPARTMENT OF EDUCATION
1 Annual Review Notice to Parent, 9/29/09, 1 p. 2 Notice of IEP Meeting, 1/4/10, 1 p. 3 NYC DOE IEP, 3/23/09,[16] pp. 4 Prime Time Care, Educational Evaluation, 7/14/08,[13] pp. 5 School Interdisciplinary Progress Report, 12/2009,[12] pp. 6 DOE Class Observation, 11/12/09, 3 pp.
7 2010 DOE Material Checklist, Undated, 1 p.
8 Minutes of CSE Meeting, 1/12/10, 1 p.
9 NYC DOE IEP, 1/12/10, 17 pp.
10 District Placement Office Referral Form, 1/12/10, 1 p.
11 Final Notice or Recommendation, 6/10/10, 1 p.
14 Resume of , Undated, 2 pp.
15 Certification of , Undated, 1 p.
17 Parent Training and Workshop Flyers, Dates, 59 pp.
IMPARTIAL HEARNG OFFICER
I Parents’ Due Process Complaint Notice, I.H.O. , 7/1/10, 7 pp. II Parents’ Amended Due Process Complaint Notice, 7/12/10, 7 pp. III Order on Pendency by I.H.O. , 9/13/10, 4 pp. IV Amended Order on Pendency by I.H.O , 10/12/10, 4 pp.
Footnotes
[12] Q School, Admission Statement, Undated, 1 p.
[13] Individual Instruction Schedule and Staff Responsibility Chart, Undated, 2 pp.
[16] Certification of , Undated, 1 p.