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: November 18, 2013

May 30, 2014

July 21, 2014

Actual Record Closed Date: September 6, 2014

Hearing Officer: , Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON

Name Title For Date DOE Representative DOE 11/18/13 05/30/14 07/21/14

) Special Education Teacher DOE 05/30/14 Advocate PARENT 11/18/13 Advocate PARENT 05/30/14 07/21/14

Mother PARENT 05/30/14 07/21/14

Father PARENT 05/30/14 07/21/14 Clinical Coordinator PARENT 05/30/14

(T) Teacher PARENT 05/30/14 Assistant to Advocate PARENT 07/21/14

(T) Principal PARENT 07/21/14

On November 8, 2013, I was appointed the Impartial Hearing Officer (“IHO”) to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 USC § 1415(f)(3), Article 89 of the New York State Education Law and Parts 200 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act, concerning a dispute between the Parents of year old student attending a New York State approved private school and the New York City Department of Education (“DOE”) - District: regarding the student’s special education program. I was appointed after the recusal of at least one other IHO. After adjournments were granted on consent of the parties or for cause, the impartial hearing was conducted on November 18, 2013, May 30, 2013 and July 21, 2014. A list of the persons appearing at the hearing and the documents received in evidence is annexed hereto.

BACKGROUND

This case was initiated as the result of a written Due Process Complaint (“DPC”) made by the student’s Parents and received at the Department of Education Impartial Hearing Office (“DOE-IHO”) on or about August under New York City (“NYC”) Case The Parent in this case alleges that the student was denied a “free and appropriate public education” (“FAPE”) for the 2013-2014 school year. (See Due Process Complaint “DPC”) The DOE recommended that the student be placed in a “collaborative team teaching” class and the Parent wants the student to remain at her New York State approved non-public school in a small class. (Id.)

A motion for an Order on Pendency was made by the Parents’ advocate(s) and a hearing was held on the same on November 18, 2013. On November 21, 2013, the following Order on Pendency was issued in this case:

ORDERED on CONSENT and pursuant to the pendency provisions under the IDEA, the student shall immediately continue to receive the services provided under the decision of dated September 30, 2012 and carried under New York City (P-B), the costs of which are to be paid by the DOE upon the agency’s receipt of reasonably satisfactory proof of said services having been rendered; and it is further

ORDERED on CONSENT that a copy of the decision of IHO dated September 30, 2012 and carried under New York City Case No.

(P-B) shall accompany this order for reference.

THE DOE’S CASE

The DOE argues that it offered the student a “free and appropriate public education” (“FAPE”) for the 2013-2014 school year. (T-22) The Parent was given full participation at the Individualized Education Program (“IEP”) meeting held on May 29,

2014. (Id.)

The DOE called (1) witness to testify on its behalf and submitted (6) documents in evidence. In sum, substance and relevant part, the testimony on behalf of the DOE is as follows:

The DOE’s only witness was the special education teacher who attended the student’s IEP meeting on May 29, 2013. (T-26 & 31) The the time and received . (T-

33) Her mother was concerned that she

The witness stated that the results of two tests were reviewed at the IEP meeting. (T-34) Both of these tests were . (T-35) The “academic achievement” and “social development” sections of the the 4th grade level and her math comprehension was around the middle of the 3rd grade. (T-41) The student school was complaint and was able to follow along with the lesson. An typically at grade level. (T-49)

On cross examination, the witness testified that they received the student’s testing information from the private school without any narrative information. (T-50) The special education teacher and principal from the private school participated at the meeting. (T-51) The student’s private school classroom teacher reported that the student was performing below grade level in all academic areas. (T-52) She also stated that the student’s

The witness testified that the student’s private school teacher and principal recommended . (T-56-7) However, the CSE did not agree because they believed that could be addressed within the classroom based on the fact that it was reported the student really thrived when the teacher praised her. (T-57) The CSE team also discussed the number of students in the student’s private school class, their use of an auditory amplification system, that she was receiving multisensory phonics and that she was . (T-59-60) The IEP has a management need that discusses the student’s need for frequent teacher prompting. (T-61) The witness testified that she observed the student at the private school for (45) minutes. (T-62) At times the student required prompting. (Id.) The student’s mother wanted the student in a smaller class. (T-63) The student had attended a public school before in an ICT class. (Id.) She did not observe the student exhibit (T-64-5)

On re-direct examination, the witness could not remember if the student’s “social history” was reviewed. (T-66 & D-3) The “social history” report states that the student’s mother reported that the . (T-67) She did not (T-68)

On re-cross examination; the witness testified that she did recall seeing the social history report and the occupational therapy report at the IEP meeting, but not any other evaluative documents. (T-69) During voir dire the witness testified she only had the student’s test results at the IEP meeting and the student’s evaluators and providers did not attend the meeting. (T-71 & 76-8) There was no substantive testimony developed during the witness’ re-re-direct testimony. (T-71-2) On re-re-cross examination, the witness testified that the IEP meeting was held but would not provide the actual protocols for the student’s evaluation or its narrative portion. (T-72-3)

THE PARENT’S CASE

The Parent argues that the student’s IEP shows that she is functioning as low as the third grade level. (T-23) The DOE’s recommendation is not consistent with that statement. (Id.) The student needs a special class that could support her because of her academic delays and anxiety. (Id.) The Parent does not contest the student’s (T-23-4) An Integrated Co-Teaching (“ICT”) class is not appropriate for the student. (T-24) The student’s New York State approved non-public school class consist of (13) students. (T-

25) The Parent requests that the DOE continue to fund the student’s placement at the New York State approved non-public school. (T-24)

The Parent called (4) witness to testify on her behalf and submitted (8) documents in evidence. In sum, substance and relevant part, the testimony on behalf of the Parent is as follows:

The Parent’s first witness is the admissions director at the student’s private school. (T-80-1) She testified that the at

On cross examination, the witness testified that the student receives “at-risk” counseling at the private school from a licensed . (T-94) She has never been a classroom teacher. (T-95) There was no re-direct examination of the witness. (Id.)

The Parent’s second witness is the (T-98) She has a New York State special education license. (T-101-2) She testified that in reading 104) The student is working on a 4th grade reading level. (Id.) In math, she is approximately in the mid 3rd grade. (T-

105) The student also receives health

The witness testified that sometimes the student needs support and encouragement in the classroom and a lot of prompting. (Id.) she believes that counseling is improving the student’s . (T-108) There are (10) students and (2) adults in the classroom. (Id.) The student has demonstrated progress through informal testing and observations. (T-109) The have parent-teacher conferences (T-110) The student’s class is at . (Id.) The student gets which she is pulled out of the classroom for. (T-111) On cross examination, the witness testified that she first met the student in September of 2013. (Id.) She did not attend the IEP meeting on May 29, 2013. (T-112) There was no re-direct examination of the witness. (Id.) During voir dire the witness testified that she did not know the last time that the student was evaluated. (Id.)

The Parent’s third witness is the principal of the student’s private school. (T-121) She testified that the private school is a New York State approved non-public school. (T-

125) The service providers at the private school and the teachers draft goals for the students and then meet to discuss the same. (T-126) The teacher then meets with the Parents and goes over the goals. (T-127) They then create an IEP and “usually’ mail it to the CSE. (Id.) If the CSE requests any documents they “usually” provide them. (T-127-

8) They also administer standardized testing at the private school. (T-128) However, they do not provide the CSE with . (Id.)

The witness testified that she does not recall the CSE asking for the student’s documents “because it’s all in the IEP.” (T-131-2) The is slow and there are times that the teacher has to re-teach material to the student. (T-136) The student needs a lot of one-to-one intervention and a lot of praise. (T-137)

On cross examination, the witness testified that the service providers are part of the private school. (T-139) She “believes” that the sometimes more than once a week. (Id.) The student receives “OT” two times per week . (T-140) There was no re-direct examination of the witness. (Id.)

The Parent’s third and final witness is the student’s mother. (T-143) She testified that the DOE did evaluate the student. (T-145) They found (T-150) The (T-152) Page one of the student’s April 2013 IEP accurately described the student. (T-155)

On cross examination the witness testified that about three years ago the student was diagnosed by a . (T-156) The student’s “management needs” accurately describe the student’s needs in the classroom. (T-157-8) The student’s private school teacher and principal attended the student’s IEP meeting that . (T-158)

On re-direct examination, the witness testified the student’s IEP goals can not be implemented because the student . (T-159) She worked in an ICT class for over (8) years as a general education teacher. (T-160) The have (30) to (34) students that tend to have huge . (T-161) The private school provides the student with throughout the day, in a small nurturing environment that uses a multisensory approach with a modified curriculum. (T-162) There was no re-cross examination of the witness. (T-163)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Initially, I must note that in this case the Parents have now received under pendency all of the relief they sought at the impartial hearing and that the 2013-2014 school year at issue has expired, which raises the question of whether the instant matter has been rendered moot by the passage of time. Upon careful consideration of the evidence in the hearing record I find that regardless of the merits of a decision concerning whether the DOE offered the student a FAPE for the 2013-2014 school year, no further meaningful relief may be granted to the Parents because they have received all of the relief sought pursuant to “pendency”, and thus, the Parents' case has now been rendered moot. In addition, careful consideration of the District Court's decision rendered in V.S., 2011 WL 3273922, as discussed further below, does not compel a different result.

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, 84-85 (2nd Cir. 2005), Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 (W.D.N.Y. 2008), J.N. v. Depew Union Free Sch. Dist., 2008 WL 4501940, at *3-*4 (W.D.N.Y. Sept. 30, 2008), see also, Chenier v. Richard W., 82 N.Y.2d 830, 832 (1993), Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714 (1980) and SRO No. 07-139)

In general, cases dealing with issues such as desired changes in IEPs, specific placements, and implementation disputes may become moot at the end of the school year because no meaningful relief can be granted. (See, e.g., SRO Nos. 06-044, 05-058, 04027, 00-037, 00-016 & 96-37) Administrative decisions rendered in cases concerning such issues arising out of school years that have since expired may no longer appropriately address the current needs of the student. (See Daniel R.R. v. El Paso Indep. Sch. Dist., 874 F.2d 1036, 1040 (5th Cir. 1989) and SRO Nos. 07-139, 07-028, 06-070 & 04-007)

An exception provides that 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), Lillbask, 397 F.3d at 84-85, Daniel R.R., 874 F.2d at 1040 and SRO No. 04-038) The exception applies only in limited situations (see City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983) and is severely circumscribed. (See Knaust v. City of Kingston, 157 F.3d 86, 88 (2nd Cir. 1998) First, it must be apparent that “the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration.” (See Murphy v. Hunt, 455 U.S. 478, 482 (1982) see Knaust, 157 F.3d at 88 and SRO No. 07-

139) Second, controversies are “capable of repetition” when there is a reasonable expectation that the same complaining party would be subjected to the same action again. (See Weinstein v. Bradford, 423 U.S. 147, 149 (1975), Hearst Corp., 50 N.Y.2d at 714-15 and SRO No. 07-139) To create a reasonable expectation of recurrence, repetition must be more than theoretically possible. (See Murphy, 455 U.S. at 482, Russman v. Bd. Of Educ., 260 F.3d 114, 120 (2nd Cir. 2001) and SRO No. 07-139) Mere speculation that the parties will be involved in a dispute over the same issue does not rise to the level of a reasonable expectation or demonstrated probability of recurrence. (See Russman, 260 F.3d at 120 and SRO No. 07-139) “Mootness” may be raised at any stage of litigation. (In re Kurtzman, 194 F.3d 54, 58 (2nd Cir. 1999) and SRO No. 07-139)

In this case, there is no longer any live controversy relating to the parties’ dispute over the placement or program offered by the DOE for the 2013-2014 school year. Here, even if a determination on the merits demonstrated that the DOE did not offer the student a FAPE for the 2013-2014 school year, in this instance, it would have no actual effect on the parties because the 2013-2014 school year expired on June 30, 2014, and the student remained entitled to her pendency placement funded by the DOE through the conclusion of the administrative due process. Accordingly, the Parents’ claims for the 2013-2014 school year need not be further addressed here. An IHO is not required to make a determination that is academic or will have no actual impact upon the parties. (See SRO Nos. 11-085, 09-077, 09-065, 08-104, 08-044, 07-077, 06-044, 04-006, 02-086, 02-011 & 97-64)

Concerning the District Court’s decision in V.S. (2011 WL 3273922), the court in that case held that in SRO No. 10-041, the SRO correctly determined that the Parents’ request for funding for the school year that was the subject of that appeal was no longer at issue where the student was educated at public expense at a private school chosen by the Parents for the duration of the school year pursuant to a pendency order. (See V.S., 2011 WL 3273922, at *9) Noting that a decision in favor of the district in that matter would not affect its obligation to pay the costs of the student’s private school tuition, the Court nevertheless determined that the district sought redress regarding the collateral issue of the student’s ongoing pendency placement for future proceedings and that had a decision been rendered by a SRO on the merits, it would have affected the student's placement. (Id.) After careful consideration and for several reasons discussed below, I respectfully decline to adopt the reasoning as set forth in V.S..

First, the sole reason that the District Court in V.S. held that SRO No. 10-041, was not moot was because the parties required resolution of the merits of their dispute to establish the student’s pendency placement in future proceedings. (See V.S., 2011 WL 3273922, at *10) However, this rationale regarding future pendency may be read so broadly as to apply to virtually any and all IDEA proceedings involving the educational placement or services to be provided to a student, and other courts in New York have not adopted this broad approach. (See Bd. of Educ. v. O'Shea, 353 F.Supp.2d 449, 457 (S.D.N.Y. 2005)(determining the matter was moot and declining to resolve the merits of the parties’ dispute when the pendency provision provided an independent basis for doing so) see also Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195 (2nd Cir. 2002)(ruling that the pendency provision formed a basis for awarding relief without addressing the merits of the parties’ dispute), Bd. of Educ. v. Schutz, 290 F.3d 476, 484 (2nd Cir. 2002)(rejecting the district's argument that a dispute must be resolved on the merits rather than on the basis of the pendency provision), Patskin, 583 F. Supp. 2d at 428-29 (holding that the matter was moot where the school year at issue had passed, and stating that the relevant controversy was whether the IEP that the student was provided with was an appropriate placement and that there was no reasonable expectation that the student would be subjected to that particular IEP again), M.S. v. New York City Dep’t of Educ., 734 F. Supp. 2d 271, 273, 278-80 (E.D.N.Y. Aug. 25, 2010)(dismissing the case as moot and noting that the parents were receiving full compensation for their private school expenditures and that the proceeding was brought to obtain legal fees), J.N., 2008 WL 4501940, at *3-*4 (upholding a SRO’s determination that the case was moot), Bd. of Educ. v. Steven L., 89 F.3d 464, 468-69 (7th Cir 1996)(holding that it was not necessary to determine which party would prevail on the merits when the stay put provision controlled for the duration of the dispute and the proposed public school IEP was no longer applicable to the student), see also New York City Dep't of Educ. v. S.S., 2010 WL 983719 (S.D.N.Y. Mar. 17, 2010))

The Ninth Circuit has explicitly rejected this rationale, holding that the stay put provision cannot be relied upon as the basis for a live controversy when the issue of liability on the substantive issues has been rendered moot. (See Marcus I. v. Dep’t of Educ., 2011 WL 1979502, at *1 (9th Cir. May 23, 2011)(explaining that stay put provision 20 U.S.C. § 1415(j) is designed to allow a student to remain in an educational institution pending litigation, but does not guarantee a student the right to remain in any particular institution because the right to a stay put placement that stems from a given adjudicatory proceeding lapses once the proceeding has concluded).

Second, we must be concerned with adjudicating rights unnecessarily, particularly when it will not affect the claims that a party alleged at the outset of the due process proceeding and especially under a statutory scheme like the IDEA, which envisions that Parents and Districts will continue to convene on at least an annual basis to review a student's , and cooperatively and affirmatively engage in efforts to develop a new appropriate plan designed to offer the student a FAPE in the public schools. (See 20 U.S.C. § 1414[d][4][A], 34 C.F.R. § 300.324[b][1][i], see also Educ. Law § 4402[2] and 8 NYCRR 200.4[f]) This process usually works best when it is as free as possible from acrimonious relationships that often develop after continued litigation.

Third, the automatic nature of the pendency provision set forth in the IDEA (see Zvi D. v. Ambach, 694 F.2d 904, 906 (2nd Cir. 1982), Wagner v. Bd. of Educ., 335 F.3d 297, 301 (4th Cir. 2003), Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 (3rd Cir. 1996), and if necessary, the speed with which parties may obtain State-level pendency placement reviews on an interlocutory basis under New York's regulatory scheme (see 8 NYCRR 279.10[d]) strongly diminishes the need to establish future pendency placements for future school years. Such determinations are better left until the proceedings under which the right arises are commenced and the issue of the student's pendency placement is actually in dispute.

Lastly, the Court's comment that a decision on the merits in V.S. would be useful (2011 WL 3273922, at *10), raises a concern that the decision has the effect of removing the much needed discretion of administrative hearing officers to focus on both fairly and efficiently resolving disputes while retaining the discretion of how best to allocate their adjudicative resources to address ever growing dockets.

For the forgoing reasons, I decline to find that the Parents’ for the 2013-2014 school year continues to be a live controversy. I find that the matter has been rendered moot by the passage of time. The exception to the mootness doctrine does not apply in this case because the matter is not capable of repetition and would not evade review. While the Parents may elect to challenge the IEP developed for the 2014-2015 school year and seek tuition reimbursement for the student at her private school for the 20132014 school year in a subsequent due process proceeding, the issues presented in such a claim could be different as the placement recommended for the 2013-2014 school year. What’s more, each year the elements of a tuition reimbursement claim must be analyzed separately. (See Mrs. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 67 (2nd Cir. 2000)(examining the prongs of the Burlington/Carter test separately for each school year at issue), Snyder v. Montgomery County Pub. Schs., 2009 WL 3246579, *9-*10 (D.Md. Sept. 29, 2009), Omidian v. Bd. of Educ., 2009 WL 904077, at *21-*26 (N.D.N.Y. Mar. 31 2009)(analyzing each year of a multi-year tuition reimbursement claim separately), Student X v. New York City Dep’t of Educ., 2008 WL 4890440, at *16 (E.D.N.Y. Oct. 30, 2008) and SRO Nos. 09-071 & 09-055) Accordingly, the exception to the mootness doctrine does not apply here as I do not find this matter to be capable of repetition yet evading review. (See Honig, 484 U.S. at 318-23, Lillbask, 397 F.3d at 84-85, Daniel R.R., 874 F.2d at 1040 and SRO 04-038)

Additionally, the Mayor’s new policy announced on June 24, 2014, was implemented September 1, 2014 and includes the following changes in New York City: • Expedite Decisions: Where settlement is appropriate, DOE will seek settlement within (15) days of receiving notice of parent intent to unilaterally place their child in a school. • Reduce Extended Legal Battles: The DOE will refrain from re-litigating settled or decided cases, unless there is a change in the IEP placement recommendation.

The DOE will avoid unnecessary litigation in cases where the agency is unable to offer a placement, or when a child is a school. • Reduce Paperwork: Instead of requiring parents to submit full documentation every year, the DOE will only require that paperwork every three years, allowing for income eligibility updates to be made each year, as needed. • Expedite Payments: DOE will make tuition payments on a monthly basis when required by a program, and it will provide a payment schedule to parents following any settlement. Once parents win a claim the DOE will pay the while the DOE appeals that of review.

These changes make it even more less than likely that this matter is capable of repetition that my evade review. (Supra) It is also important to note that there is case law that prohibits the DOE from recouping payments made pursuant to pendency. (See New York City Dep’t of Educ. v. S.S., 2010 WL 983719, at *11 [S.D.N.Y. Mar. 17, 2010])

NOW therefore, it is hereby

ORDERED that in light of the determinations herein, I find that this matter is rendered “moot” and that it is unnecessary to address the merits of the parties’ contentions herein. Accordingly, the matter is DISMISSED. Dated: September 20, 2014

, ESQ.

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.

DOCUMENTATION ENTERED INTO THE RECORD

Number/Letter Title Dated For # of Pages

01 IEP 05/29/14 DOE 14

02 Notice of IEP Meeting 05/29/13 DOE 04 03 Social History 04/15/13 DOE 01 04 Observation 03/06/13 DOE 02 05 CSE Minutes 05/29/13 DOE 01 06 Educational Evaluation Scores 05/2013 DOE 01 A Impartial Hearing Request 08/30/13 PARENT 04 B Findings of Facts & Decision 09/30/12 PARENT 16 C Omitted - Duplicative D Class Schedule 2013-2014 PARENT 01 E Report Card 2013-2014 PARENT 01 F Affidavit of Payment 01/23/14 PARENT 01 G Attendance Record 2013-2014 PARENT 01

H 2012 PARENT 02

I Teacher’s Report 01/2014 PARENT 04