New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 166936

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: July 18, 2017

Actual Record Closed Date: February 4, 2019

Hearing Officer: James Walsh, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

JULY 18, 2017

Attorney Associated with, Attorneys for Parent Parent District and Department of Education Representative Department of Education 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, 20 U.S.C. §1412 et seq. on July 18, 2017, for the singular purpose of determining the Pendency program to which Student is entitled to receive pending the completion of this administrative hearing. The undersigned had been appointed as the Impartial Hearing Officer authorized to preside over this matter by notice dated July 5,

2017.

The proceeding was initiated by a Due Process Complaint Notice filed on behalf of Parent by the , dated June 30, 2017 and received by the New York City Department of Education’s Impartial Hearing Office on July 3, 2017. The Complaint alleged that District had failed to offer Student a free, appropriate public education (FAPE) for the 2017-2018 school year (Exhibit A). More specifically, Parent contended that Student, who was, at the time of filing of the Due Process Complaint, , was too medically fragile to attend in a school setting, so that the recommendation of District’s Committee on Special Education (C.S.E.) that Student receive her special education program in a Special Cass in a Special School ( ) having a staffing ratio of 12:1+(3:1), was inappropriate.

Parent sought, in her Due Process Complaint, in addition to the issuance of a Pendency Order, a Final Order:

“requiring the DOE to pay , at an enhanced rate according to proof, or other independent agency should be unavailable to provide [Student] for the 2017-2018 school year: (a) 20 hours per week of 1:1 SETSS at home; (b) P/T, three 45-minues sessions per week at home; (c) O/T, three 45-minue sessions per week at home; and (d) Speech/Language three 45-minut sessions per week at home.” (Exhibit A)

In accordance with the stated request of Parent, a Pendency Hearing was conducted on July 18, 2017. At that hearing, there was received into evidence, in addition to Parent’s Due Process Complaint Notice (Exhibit A), a copy of Findings of Fact and Decision rendered by Impartial Hearing Officer Robert Briglio, dated June 29, 2017. The Decision of Impartial Hearing officer Briglio had ordered the Department of Education to provide Parent with authorization to obtain twenty hours per week of Special Education Itinerant Teacher (SEIT) services, as well as the Related Services of Speech/Language Therapy, three times per week, forty-five minutes per session, individually; Occupational Therapy, three times per week, forty-five minutes per session, individually; and Physical Therapy, three times per week, forty-five minutes per session, individually, all funded at enhanced rate not to exceed One Hundred Fifty ($150.00) Dollars per hour and all to be provided at home (1.H.O. Exhibit II). Thereafter, I issued an Interim Order on Pendency, dated August 17, 2017 (1.H.O. Exhibit III), requiring that Student be provided, as and for Student’s Pendency program, pursuant to the unappealed Decision of Hearing Officer Briglio, twenty hours per week of Special Education Itinerant Teacher (SEIT) services, as well as the Related Services of Speech/Language Therapy, three times per week, forty-five minutes per session, individually; Occupational Therapy, three times per week, forty-five minutes per session, individually; and Physical Therapy, three times per week, forty-five minutes per session, individually, all funded at enhanced rate not to exceed One Hundred Fifty ($150.00) Dollars per hour and all to be provided at home. Such Interim Order was made retroactive to July 3, 2017, the date of filing of Parent’s Complaint.

A hearing on the merits was scheduled to be conducted on November 6, 2017. However, such was adjourned at the request of District, which cited the need to further investigate the case pursuant to 8 NYCRR 200.5 et seq. with an eye to possible settlement. That request was granted. No other hearings were thereafter scheduled.

The 2017-2018 school year has long concluded. This matter remains open. However, I find, at this time, that there is no purpose in conducting a hearing or reviewing the correctness of the actions of District’s C.S.E. or the stated positions of the Parent, as there is no relief that I could afford to Parent in a Decision that Parent has not already obtained through the provisions of my Interim Order on Pendency. I note that, while Parent sought, in her Due Process Complaint (Exhibit A), the provision of “20 hours per week of 1:1 SETSS”, 1.e., Special Education Teacher Support Services, Student was, in fact and pursuant to my Interim Order on Pendency, provided with twenty hours per week of 1:1 SEIT (Special Education Itinerant Teacher) services. SEIT services are more broad in scope than SETSS and, thus, more beneficial to Student. It is my finding and determination that all of the issues raised by Parent in her Due Process Complaint are now moot. 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 TIDELR 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.

I have considered the position espoused by Parent’s present counsel, as proffered in an email opposing the dismissal of Parent’s Due Process Complaint as moot (.H.O. Exhibit IV), and find the same to be without merit

ORDER

Based upon the above, it is HEREBY ORDERED that Parent’s Due Process Complaint be, and the same hereby is, DISMISSED.

Dated: February 26, 2019 James Walsh

JAMES WALSH, ESQ.

Impartial Hearing Officer

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. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.

DOCUMENTATION ENTERED INTO THE RECORD

A. No.: #of Pages Description: Offered by 7 Parent’s Due Process Complaint Notice, Parent dated 6-30-17

B. Findings of Fact and Decision by I.H.O. R. Parent Briglio, dated 6-29-17 OTHER DOCUMENTATION ENTERED INTO RECORD 13 pages Parents

I. No.. #of Pages Description: Offered by 1 Email from Attorney to I. H.O. IHO J. Walsh, dated 8-4-17

I. 1 Email from District Representative to IHO I.H.O. J. Walsh, dated 8-4-17

I. Interim Order on Pendency, dated 8-1-17 THO (double-sided) 5 pages Parents

IV. 1 Email from Parent’s Attorney to IHO IHO Walsh, dated 1-30-19