New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION

Case Number: 166609

NYS Identifier Number N/A Student's Name: [“Confidential”]

Date of Birth:

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 07/16/18, 09/13/18, 11/13/18 &

12/13/18 & 01/11/19

Actual Record Close Date: 08/05/19

Hearing Officer: Edgar De Leon

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For #of Pages

01 Amended DPC 05/21/18 DOE 17

02 DPC 06/26/17 DOE 15

03 IEP 12/22/17 DOE 15

04-06 Withdrawn / Not Received N/A DOE N/A 07 OT Guide 12/22/17 DOE 01

08 Report Card 2017-2018 DOE 02

09 Withdrawn / Not Received N/A DOE N/A 10 ABA Progress Report 04/03/17 DOE 02

11-15 Withdrawn / Not Received N/A DOE N/A 16 Closing Statement 02/04/19 DOE 09

Withdrawn / Not Received N/A PARENT N/A moaP

WO

Progress Report 05/14/18 PARENT 04

Progress Report 05/14/18 PARENT 03

Tl

LI

Withdrawn / Not Received N/A PARENT N/A Withdrawn / Not Received N/A N/A pv@®e"

PARENT

AO. IEP

Withdrawn / Not Received

Affidavit of 01/05/17

N/A 01/07/19

PARENT

PARENT

PARENT

28

N/A

12

Closing Statement 02/05/19 PARENT 35

N/A N/A N/A IHO N/A

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date Attorney DOE 07/16/18 (T) 09/13/18 11/13/18 12/13/18 01/11/19

Teacher DOE 09/13/18

District Representative DOE 01/11/19 Attorney PARENT 07/16/19 (T) Attorney PARENT 09/13/18 11/13/18 12/13/18 01/11/19 Interpreter PARENT 09/13/18

Father PARENT 09/13/18

Mother PARENT 11/13/18 01/11/19 Interpreter PARENT 11/13/18 Special Education Teacher PARENT 11/13/18

BCBA PARENT 01/11/19

Interpreter PARENT 01/11/19

On May 22, 2018, 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, Part 200 and 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 a ( ) year old student attending a public 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 having adjournments granted at the request and with the consent of the parties, or for good cause, the impartial hearing was held on July 16, 2018, September 13, 2018, November 13, 2018, December 13, 2018 and January 11, 2009. The parties opted to submit written closing statements. (T-230-3) The Parent submitted a written closing statement that was received on February 5, 2019. (P-Q) The DOE’s written closing statement was received on February 4, 2019. (D-16) A list of the persons who appeared at the hearing and the documents entered into 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 through their attorney(s), . and received at the Department of Education Impartial Hearing Office (“DOE-IHO”) on or about June 26, 2017 and amended on May 21, 2018. The DPC is carried under New York City (“NYC”) . Therein, the Parent alleges that the DOE has failed to provide the student with a “free and appropriate public education” (“FAPE”) for the 2017-2018 and 2018-2019 school years. At the impartial hearing, the Parent seeks the following relief: (a) A finding that the student has been denied FAPE for the 2017-2018 and 2018-2019 school years; and (b) A declaration of rights in favor of the Parents, declaring the conduct alleged herein to be illegal and in violation of the IDEA, Section 504, and New York State Education law; and (c) An order finding the student's pendency placement to consist of the following: (i) A 12-month school year; (ii) Special education transportation; (ili)

Placement in a community school setting with a 1:1 SETSS teacher for (31) hours and (40) minutes; (iv) (22) hours of home-based instruction for any weeks that the student is not attending school; (v) (10) hours per week of 1:1 home-based ABA services; (vi) The Parents could choose the providers for home and school services to be funded by the DOE; (vii) Occupational Therapy twice per week for 30-minute sessions on a 1:1 basis; and (viii) Speech and Language Therapy seven times per week for 30-minute sessions on a 1:1 basis.

(d) A final order directing the DOE to provide the following services to the student for the 2017-2018 and 2018-2019 school years:

(i) A 12-month school year; (ii)

Special education transportation; (iii) Placement in a community school setting with a 1:1 SETSS teacher for (31) hours and (40) minutes; (iv) (22) hours of home-based instruction for any weeks that the student is not attending school; (v) (10) hours per week of 1:1 home-based ABA services; (vi) The Parents could choose the providers for home and school services to be funded by the DOE; (vii) Occupational Therapy twice per week for 30-minute sessions on a 1:1 basis; and (viii) Speech and Language Therapy seven times per week for 30-minute sessions on a 1 :1 basis; and (e) A translator selected by the Parents as needed for the evaluators to communicate with the Parents; and (f) Compensatory education, additional and/or make-up ABA, and related services based on the DOE's (a) failure to provide all of the services agreed upon and ordered by the prior IHO; (b) failure to implement the student’s pendency; and (c) denial of FAPE for the 2017-2018 school year; and (g) Findings of fact in favor of the Parents with respect to the facts alleged;

and

(h) A finding that the DOE denied the Parents legally sufficient translation and interpretation services; and

(i) The DOE should translate any and all documents relating to the student’s education in the prior year and the school year going forward for his Parents and provide a qualified “ ” interpreter for all meetings; and

(j) All other relief that is appropriate as of the time that the IHO is ready to issue a final order; and

(k) Payment of the Parent's attorneys’ fees and costs.

THE DOE’S CASE

The DOE called (1) witness to testify on its behalf and submitted (7) documents in evidence. In sum, substance and relevant part, the testamentary and documentary evidence for and against the DOE’s case is incorporated in the decision below.

THE PARENT’S CASE

The Parent called (2) witnesses to testify on her behalf, (1) of whom submitted direct testimony via affidavit pursuant to 8 NYCRR 200.5{j][3][xii][f]. (P-P) The Parent also submitted (5) documents in evidence. In sum, substance and relevant part, the testamentary and documentary evidence for and against the Parent's case is incorporated in the decision below.

FINDINGS OF FACTS & DECISION

IDEA ensures that students with disabilities are afforded a free and appropriate public education (“FAPE”). (20 U.S.C. § 1400 & Schaffer v. Weast, 126 S.Ct. 528 [2005]) A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP. (20 U.S.C. 1401(8) & 141(d) and 34 C.F.R. § 300.13) The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. (Schaffer, 126 S.Ct. 528, 537)

The DOE may be required to reimburse Parents for their expenditures for private educational services obtained for a student, if the services offered by the DOE were inadequate or inappropriate, the services selected by the Parents are appropriate and equitable considerations support the parent’s claim. (Sch. Comm. Of Burlington v. Dept.

of Educ., 471 U.S. 359 (1985), Elorence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2° Cir. 2005})

The first step is to determine whether the DOE offered to provide the student a FAPE. (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2° Cir. 2000]) A FAPE is offered to a student when (a) the DOE complies with procedural requirements set forth in IDEA and (b) the IEP developed by the CSE through the procedures set forth in IDEA, is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. V. Rowley, 458 U.S. 176, 206-7 [1982]) The student’s recommended program must also be provided in the least restrictive environment (“LRE”). (20 U.S.C. § 1412(a)(5)(A), 34 C.F.R. § 300.550(b), 8 NYCRR §200.6(a)[1])

The Parent bears the burden of showing that the private school placement selected is appropriate. (SRO Nos.: 95-57, 94-29 & 93-34) The Parents must show that the private school placement offers an educational program that meets the student's special education needs. (Burlington, 471 U.S. at 370 & SRO No. 94-20) The private school need not be approved by the state educational agency to provide instruction to children with disabilities. (Florence County School District Four et. al. v. Carter, 510 U.S. 7 [1993]). It is also not required that the private school employ certified special education teachers or have its own IEP for the student. (SRO No. 94-20)

Finally, the IHO must consider whether equitable considerations favor the Parents’ request for tuition reimbursement. State Review Officer (“SRO”) Decision 06-004 holds: Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties’ compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties’ positions, and like matters” (Wolfe _v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a_ claim of _ tuition reimbursement. (Application of a Child with a Disability, Appeal No. 04-049).

In Burlington, the Court found that Congress intended retroactive reimbursement to Parents by school officials as an available remedy in a proper case under the IDEA.

(Burlington, 471 U.S. at 370-71, Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186 at 192 [2d Cir. 2005]) “Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance” had it offered the student a FAPE. (Burlington, 471 U.S. at 370-71, 20 U.S.C. § 1412[a][10][C]{ii] and 34 C.F.R. § 300.148)

The DOE’s argument is that it met its obligation to provide the student with a FAPE in the “least restrictive environment’ (“LRE”). (D-16) The DOE argues that ABA services the student has received since he was (_) years old are no longer appropriate.

(Id. & T-29-30) The removal of those service are the gravamen of the dispute between the parties. The DOE further argues that the Parent's claims for the 2017-2018 school year are moot because the student received services under pendency. (Id.)

The DOE removed the student's ABA services at an IEP meeting held on December 22, 2017. (D-3) That IEP cites the evaluative materials used in the decision to remove ABA services as “ELA State Exam: 1 & Math State Exam:1.” (Id.) No other evaluative materials are noted in the IEP. Nevertheless, the IEP notes the following:

Concern of the parent: [STUDENT NAME]'s mom was explained the recommendations for the new IEP. It was explained that it would be suitable to remove the ABA teacher. After translation [STUDENT NAME]'s mom was confused of the roles of each. The roles were clarified for each. [STUDENT NAME]'s mom was explained that if they felt [STUDENT NAME] benefits from ABA therapy that an evaluation can be done.

[STUDENT NAME] has been diagnosed with severe symptoms of ASD and intellectual impairment in the severe range. [STUDENT NAME] requires an individual education program because of his unique needs:

due to his classification of Autism and deficits in the areas of decoding, reading comprehension, writing, solving math word problems, and communication delays which affect his ability to process and retain Information comparable to that of his peers within the general education setting. (D-3)

It appears the DOE recognized the severity of the student's autism, and yet removed services that are essential to that diagnosis without an evaluative basis for doing so. The teacher who testified for the DOE testified that the student had made social progress but was not participating as much with 1:1 assistance. (T-52-6)

However, that same teacher testified that she did not Know why the student was receiving ABA services. (T-52 & 59) She also admitted to not having formally evaluated the student or observed him receiving the 1:1 services. (T-56) That amounts to all of the support the DOE offered for removing the student's ABA services. It is noted that the ABA SETSS provider testified that the student was the only one in his class with his particular diagnosis. (T-158)

The Parent's response to the DOE’s removal of the ABA services is pointed and telling. The Parent argues as follows: The parents alleged, inter alia, “The IEP was not based upon legally sufficient evaluations. The IEP team did not have an FBA available for the 2017 IEP meeting. The DOE failed to reevaluate [STUDENT NAME] with respect to the home-based services before terminating them. The DOE recommended significant changes to [STUDENT NAME]'s program and placement without a reevaluation and rendered a decision based upon a policy and practice instead of [STUDENT NAME]'s individual needs. The evaluation... did not meet the standards for providing FAPE to children with autism as set forth by the New York State Education Department, 8 NYCRR Part 200.13.” (P-Q)

The Board-Certified Behavior Analyst (“BCBA”) testified on direct testimony via affidavit pursuant to 8 NYCRR 200.5/j][3][xii][f] and stated that he re-evaluated the student in 2015 and has regularly conducted classroom observations of the student since then. (P-P) He testified that the student continues to need 1:1 ABA services throughout the school day and at home. (Id.) The special education teacher who testified for the Parent also stated that the student would not understand what was said to him or what he read and would regress without 1:1 ABA support. (T-146-7) She stated that the student does need a lot of support to help him to communicate, to be able to process and understand information within a large group setting. (Id.) She does not think the student should continue in a community setting without the 1:1 support and that he continues to need SETSS ABA services. (Id.)

8 NYCRR § 200.4(d)(2) states the necessary contents of an IEP and what the basis of its recommendations require:

In developing the recommendations for the IEP, the committee must consider the results of the initial or most recent evaluation; the student’s strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental and functional needs of the student, including, as appropriate, the results of the student's performance on any general State or district-wide assessment programs; and any special considerations in paragraph (3) of this subdivision.

The student’s December 22, 2017 IEP does not meet this criteria. (D-3) It does not reflect the results of the student’s initial or most recent evaluation, or any evaluation for that matter. (Id.) Furthermore, it identifies the student severe autism diagnosis and need for extensive individualized support, but inexplicitly removes that support. (Supra)

The Parent notes that since 2013, the numerous IHOs have found in favor of the continued need for the student to receive 1:1 ABA services: “2013 orders from IHO ( ), a March 24, 2015 order from IHO ( ), a June 3, 2016 order from IHO ( ), and a July 5, 2017 order from IHO ( ).”

(P-B, H, | J, K & Q)

As noted above, it is well settled that an appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; SRO No. 07-018; 06-059; 06-029; 04-046; 02-014; 01-095 & 93-09) For the reasons stated above, no such finding can be made here.

Simply stated, the student's December 22, 2017 is not supported by any evaluative material. Accordingly, I find is deficit and that the DOE has denied the student a FAPE for the 2018-2019 school year.

The appropriateness of the continuation of the student's services is evidence by the record as cited above, and by the admissions regarding the same contained in the very IEP the DOE has tried to defend. (Supra) I find that continuation of those services are appropriate.

Regarding the Parent's claims regarding the 2017-2018 school year, the DOE argues that they are rendered moot by the “Order on Pendency” issued by IHO on September 19, 2017 in NYC . (D-16) But that order did not resolve the underlying dispute for that school year, although there is no need to award relief that the student already received for that school year under the order. The Parent’s rebuttal to the DOE’s mootness argument is as follows;

This position is at odds with the DOE’s long-standing position that a case will not be mooted by pendency so long as the parties continue to disagree about the student's program. See, e.g., New York City Dep't. of Educ. v. S.A. ex rel. N.A., 12-—CV—1108(DLC), 2012 WL 6028938, at *2 (S.D.N.Y. Dec. 4, 2012) (reversing the SRO’s finding that the case was moot; although “[ijt is true that the question of reimbursement for the 2009-2010 school year is no longer at issue in this case. The harm alleged by the DOE, however, falls squarely within the ‘capable of repetition, yet evading review exception to the mootness doctrine.”) (citations omitted); New York City Dept. of Educ. v. V.S., 10-—CV—05120(JG)(JO), 2011 WL 3273922, *9-10 (E.D.N.Y. July 29, 2011) (reversing the SRO’s finding that the case was moot; “The SRO was correct in concluding that funding for the 2009-2010 school year itself is no longer at issue... However, while a decision in favor of the DOE will not affect its past obligations to pay V.S.’s Rebecca School tuition, it will control V.S.'s pendency placement going forward.”). However, the DOE has also been reprimanded by courts for opportunistic gamesmanship. (PQ)

The Parent also argues that the S.A. case above states “...the Second Circuit held in Schutz, ‘unless the question of the District's obligation to pay the student's tuition pending resolution on the merits of a given proposed, and rejected, IEP is resolved the parents’ legal claim for tuition payment during such pendency will likely be repeated, perhaps as often as every school year, and will continue to evade review.” (quoting Bd.

of Educ. Pawling v. Schutz, 290 F.3d 476, n.1 [2d Cir.2002]).

The Parent also argues that the V.A. case states: (“See, e.g., F.O. v. N.Y.C.

Dep't. of Educ., 976 F.Supp.2d 499, n.13 (S.D.N.Y. 2013) (noting “this aspect of the DOE's litigation strategy is disconcerting. The DOE voluntarily provided a 1:1 health paraprofessional and, in Parents’ related case, filed a successful Motion to Dismiss for Lack of Subject Matter Jurisdiction, on the basis that the DOE had provided the health paraprofessional for the 2010—2011 school year. The DOE should not be able to lure the Parents with the poisoned apple of free related services, only to later claim that [accepting the services hurts the parent’s case.] The Court cannot envision how the IDEA, which seeks ‘to ensure ... a free appropriate public education,’ could endorse that actually accepting free services jeopardized” the parent's FAPE claims. (citing 20 U.S.C.

§ 1400(d)(1)(A) [emphasis in original]).”

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, 04-027, 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 (2TM 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 (2 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 (2TM Cir. 1999) and SRO No. 07-139)

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. (ld.) After careful consideration and for several reasons discussed below, | 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 (2"

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 (2° 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., 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 current IEP or educational placement, share their concerns with one another, 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] 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 (2TM Cir. 1982), Wagner v. Bd. of Educ., 335 F.3d 297, 301 (4" Cir. 2003), Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 (3 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

Fourthly, 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.

Lastly, the Second Circuit has proffered three possible definitions of "then current educational placement": (1) the placement described in the student's most recently implemented IEP; (2) the operative placement actually functioning at the time when the pendency provision of the IDEA was invoked; and (3) the placement at the time of the previously implemented IEP. (See Mackey, 386 F.3d at 163, citing Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618, 625 [6th Cir. 1990] [emphasis added], see also SRO No. 05-006) Thus, there is no barrier to an IHO deciding “pendency” in a future matter between the parties were a decision on the merits has not been rendered in a previous controversy between them.

For the forgoing reasons, | decline to find that the Parents’ claim for tuition reimbursement for the 2017-2018 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 2019-2020 school year and seek continued ABA 1:1 services for the 2019-2020 school year in a subsequent due process proceeding, the issues presented in such a claim could be different as presented for the 2017-2018 school year. What's more, each year the elements of a DPC claim must be analyzed separately. (See Mrs. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 67 (2TM 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 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 about to enter the final grade of 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 for tuition reimbursement, the DOE will pay the tuition while the DOE appeals that decision to a higher level of review.

These changes make it even more less than likely that this matter is capable of repetition that may 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., 2010 WL 983719, at *11 [S.D.N.Y. Mar. 17, 2010])

For all of the reasons above, I find that the Parent’s claims for the 2017-2018 school year are moot.

In regard to the Parent's request for compensatory education services, the Parent notes that the student did not receive over (100) hours of speech and language services for the 2017-2018 school year because pendency was not immediately implemented and that the DOE submitted no evidence regrading the student 2018-2019 school year. Compensatory service are warranted where there is a failure to implement pendency. The Parent correctly cites the following case law in support of the same:

In particular, the Second Circuit has repeatedly emphasized that a child is entitled to compensatory education when the district fails to implement pendency and those claims will insulate a case from mootness. See Toth v. N.Y.C. Dep’t. of Educ., 720 Fed. Appx. at *51 (2d Cir. 2018); see also Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 456 (2d Cir. 2015) (reversing district court award that would “undermine the [IDEA’s] stay-put provision by giving the [school district] an incentive to ignore the stay-put obligation.”), cert. denied, 136 S. Ct. 2022 (2016); Dervishi v. Stamford Bd. of Educ., 653 Fed. Appx. 55, 2016 WL 3548246, at *2 (2d Cir. June 27, 2016)(summary order)(same; remanding to district court to award missed services under pendency); Student X. v. N.Y.C. Dep't. of Educ., 2008 WL 4890440, at *23-26; Burr v. Ambach, 863 F.2d at 1078 (2d Cir.1988) (awarding compensatory relief for delays in hearing process), vacated sub nom. Sobol v. Burr, 492 U.S. 902 (1989), aff'd on recon. sub nom. Burr by Burr v. Sobol, 888 F.2d 258 (2d Cir. 1989); see SRO No. 18-135, at 15, 18 (remanding to IHO to determine compensatory education for denial of FAPE and to calculate compensatory education for failure to implement pendency); SRO 15-123, at 7-8 (reversing and remanding; “The parent asserts that the IHO erred in dismissing the entirety of the parent's claims regarding the 2013-14 school year as moot. | agree... it is generally accepted that a claim for compensatory education or additional services presents a live controversy...”). (P-Q)

There is no basis in the record to deny the Parent’s request for relief for equitable considerations. She credibly testified that she has attended all of the student’s IEP meeting. (T-57-8)

NOW therefore, it is hereby

ORDERED that upon its receipt of reasonably satisfactory proof of services having been rendered, the DOE shall either reimburse the Parents and/or directly pay the cost of the student’s receipt of (a) Special education transportation; (b) a 1:1 SETSS teacher for (31) hours and (40) minutes; (c) (22) hours of home-based instruction for any weeks that the student is not attending school; (d) (10) hours per week of 1:1 home-based ABA services with the Parent's choice of providers for home and school services to be funded by the DOE; (e) Occupational Therapy twice per week for 30-minute sessions on a 1:1 basis; (f) Speech and Language Therapy seven times per week for 30-minute sessions on a 1:1 basis; (g) A translator as needed for the evaluators to communicate with the Parents; (n) Compensatory education, additional and/or make-up

ABA, and related services in the direct amount of those services the student did not received for the DOE’s failure to promptly implement pendency during the 2017-2018 school year; and (i) the translation of any and all documents relating to the student's education in the prior year and the school year going forward for his Parents and to provide a qualified “ ” interpreter for all meetings; and it is further

ORDERED that the DOE shall forthwith also conduct a re-evaluation of the student in all areas of his suspected disabilities not evaluated within the last two years, for the 2019-2020 school year; and it is further

ORDERED that the CSE shall forthwith reconvene after the completion of the student's evaluations and consider all of the student's evaluations and any other relevant information and produce a new IEP for the student’s 2019-2020 school year; and it is further

ORDERED that any of the other relief sought by the Parent not addressed by this decision is found to be either agreed upon by the parties as indicated above, outside the scope of the IHO’s authority or unsupported by the record.

DATED: August 10, 2019

New York, New York Edgar De Leon - I.H.O.

PLEASE TAKE NOTICE

The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. Directions and forms can be found on the Office of State Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview.html

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Footnotes

[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.