New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: April 2, 2014

May 20, 2014

Actual Record Closed Date: June 23, 2014

Hearing Officer: James P. Walsh, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 2, 2014

Name Description On Behalf of

Esq. Attorney – Law Office of — Parents

Mother of Student — Parents

Father of Student — Parents

Pathologist – Provided Therapy — Parents

to — Student

Department of Education and District Representative — DOE

School Psychologist Assigned to District’s Committee on Special Education – Participated in C.S.E. Meeting of 6-20-13 — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 20, 2014

Name Description On Behalf of

Esq. Attorney – Law Office of Tamara Roff — Parents

Father of Student — Parents

Special Education Teacher – Provided ABA instruction to Student at Home — Parents

Department of Education and District Representative — DOE

The Matter of (hereinafter referred to as “Student”) came before me 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, on April 2, 2014 and again on May 20, 2014. The undersigned had been appointed by the Impartial Hearing Office of the Department of Education of the City of New York to preside over this matter, after the recusal by one or more previouslyappointed Impartial Hearing Officers, by notification dated September 3, 2013. Upon the close of proceedings on May 20, 2014, the representatives of both parties requested the opportunity to submit Post-Hearing briefs for my consideration. Those requests were granted so long as such were filed with the Impartial Hearing Office Case Manager no later than the close of business on June 20, 2014. Each party timely filed such PostHearing Briefs, which were forwarded to my office on June 23, 2014. Thus, the Record Close Date was June 23, 2014.

Parents’ Due Process Complaint (Exhibit A) challenged the procedural and substantive appropriateness of the Individualized Education Program (I.E.P.) prepared by District’s Committee on Special Education (C.S.E.) for Student for the 2013-2014 school year, together with ancillary allegations that the C.S.E. had failed to conduct proper and adequate assessments of Student and its failure to provide Parents with prior written notice. As relief, Parents sought the provision of eight hours of Special Education Teacher Support Services (SETSS) weekly and after school, as well as Therapy six times weekly, thirty minutes per session (Exhibit A). Also contained in Parents’ Due Process Complaint was the request for an immediate issuance of an Interim Order regarding Pendency or an expedited pendency hearing.

Student is , having been born . However, at the time District’s C.S.E. prepared the I.E.P, for Student for the 2013-2014 school year on June 20, 2013 (Exhibit 1), Student was In its I.E.P. (Exhibit 1), Student was classified by District’s C.S.E. as recommended Student’s placement in a non-public school facility having a staffing ratio of 8:1+2, together with the Related Services Therapy two times per week, thirty minutes per session, individually; one time per week, thirty minutes per session, individually; and Therapy two times per week, thirty minutes per session, individually and two times per week, thirty minutes per session, in a group (Exhibit 1). On the same date, a Final Notice of Recommendation was issued, placing Student – for the 2013-2014 school year (Exhibit 2). Parents have raised no dispute as to the appropriateness of either Student’s classification or his placement at Blue Feathers. Parents’ sole dispute with District is that its C.S.E. failed and refused to provide Student not only with a day program at a private facility as Student had been afforded during the 2012-2013 school year by District’s Committee on Preschool Special Education (C.P.S.E.), but with the same after-school program that Student was entitled to receive during previous school years pursuant to an I.E.P. that was issued by District’s C.P.S.E.

District sought to defend the appropriateness of its I.E.P. as prepared by its C.S.E. on June 20,2013 (Exhibit 1), presenting the testimony , the School Psychologist who had been involved in the preparation of the I.E.P. as both District Representative and School Psychologist (T.R.37).

Parents presented the testimony of Ms. ,a Pathologist who provided Student with after school, and , a Special Education Teacher who provided Student with instruction after school, in furtherance of Parents’ contention that the I.E.P. prepared by District’s C.S.E. (Exhibit 1) was insufficient and inappropriate in that it failed to provide Student not only with his day school program, but also with the after-school program that Student had enjoyed during previous school years.

I find, however, that there is no purpose in assessing or evaluating the correctness of the positions taken by both parties to this proceeding. As previously noted, Parents, in their Due Process Complaint, sought an immediate issuance of a Pendency Order. However, when such Pendency Hearing was scheduled for September 24, 2013, Parents’ Counsel advised that there was no need such a hearing on that issue, as Impartial Hearing Officer Lloyd had issued an Interim Order on Pendency (I.H.O. Exhibit I) on September 5, 2013, which established Student’s Pendency program for the duration of that hearing. Indeed, on April 2, 2014, the first date of the hearing on the merits of Parents; Complaint, Parents’ Counsel advised that Student had received all requested services by virtue of the Pendency Order, including all services during the months of July and August 2013, before such I.H.O. Pendency Oder had been signed. On April 2, 2013, Parents’ Counsel conceded that all that was at issue before the undersigned was Student’s program from April to the end of the 2013-2014 school year (T.R.22-23).

The 2013-2014 school year has now come to a close. There is nothing in the Record before me that would indicate that the Interim Order on Pendency (I.H.O. Exhibit

I) has been terminated or ineffective. Thus, Student has received, pursuant to the Interim Order of Pendency (I.H.O. Exhibit I) all of the special education Therapy services that Parent sought as relief in this proceeding. There is no relief that I could afford to Parents that Parents have not already realized, even were I to rule in their favor. Of course, were I to rule otherwise, Parents would be entitled to no relief at all. Mootness can only successfully be avoided where retrospective relief is sought (Board of Education of the City of New York, 26 IDELR 1326; Neshaminy School District v. Karla B., 25 IDELR 725 [E.D. Pa 1997]. To paraphrase the State Review Officer who decided Application of a Child with a Disability, Appeal No. 94-9:

“An appeal may be found to be moot, if no meaningful relief could be provided and there is no basis for believing that the dispute between the parties will continue.”

It is, therefore, my Determination and Conclusion of Law that all of the issues presented in this proceeding are moot and that there is no valid reason to continue this matter.

ORDER

Based upon the above, it is HEREBY ORDERED that Parents’ Due Process Complaint be, and the same hereby is, DISMISSED. Dated: July 1, 2014

James P. Walsh, Esq. gc

JAMES P. WALSH, ESQ.

Impartial Hearing Officer

JPW:gc

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 RECORD APRIL 2, 2014

A. Parents’ Due Process Complaint Notice, dated 6-26-13 (3 pages; Parents)

B. Student’s I.E.P., dated 5-13-10 (37 pages; Parents)

C. Student Progress Report - SETSS – by, dated 11-15-12 (4 pages; Parents)

D. Quarterly Student Progress Report – SETSS By, dated 2-15-13 (3 pages; Parents)

E. Student Progress Report – SETSS –by, dated 2-15-13 (2 pages; Parents)

F. Quarterly Student Progress Report – SETSS by, dated 5-15-13 (3 pages; Parents)

G. Student Progress Report – SETSS – by Parents, dated 5-31-13 (2 pages; Parents)

H. Quarterly Student Progress Report – SETSS by, dated 1-3-14 (6 pages; Parents)

I. Student Progress Report – SETSS – by Parents, dated 11-30-12 (3 pages; Parents)

J. Annual Progress Report, dated 8-11-13, by. 1 Not Admitted DOE (3 pages; Parents)

2. Final Notice of Recommendation, dated 6-20-13 (1 page; DOE)

3. Minutes of the C.S.E. meeting of 6-4-13 (2 pages; DOE)

4. Student’s I.E.P. as prepared by District’s C.S.E. on 6-4-13 5 Not Admitted DOE (15 pages; DOE)

I. Interim Order on Pendency, issued by I.H.O. IHO M. K. Lloyd, dated 9-5-13 (5 pages; Parents)

DOCUMENTATION ENTERED INTO RECORD MAY 20, 2014

K. Progress Report, dated 3-20-14, unsigned, By K. Meehan and J. Gubenko, (3 pages; Parents)

L. Quarterly Student Progress Report – SETSS dated 1-3-14, by (6 pages; Parents)

M. New York City Department of Education I.E.P., undated (16 pages; Parents)

N. Student’s Daily Behavior Reports for Period 2-2014 through 5-2014 (36 pages; Parents)

1. Student’s I.E.P. as prepared by District’s C.S.E., dated 6-20-13 (13 pages; DOE)