Impartial Hearing Decision

ORDER OF DISMISSAL

IHRS Case Numb r: 513865

Student N arne:

Date of Birth: November 6, 2010

District:

Hearing Requeste By: Parents

Dates of Hearing: None

Actual Record Cl se Date: August 17, 2018

Hearing Officer: Jeffrey J. Schiro, Esq.

NAMES AND TITLES OF PERS NS WHO A PEARED

For the Student:

arent

For the District:

SQ., Attorney

11

I. PROCEDUR..t\.L HISTORY I

This impartial due process proceeding ·ses under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-14 2, and Article 89 of the New York State Education Law. This hearing was requested by e parents of the student in a May 31, 2018 due process complaint (Ex. IHO-I).^[1] On June 7, 20 8, the the

"District") appointed me to serve as the imparti 1 hearing officer ("IHO") in this matter (Ex.

IHO-II). See 8 NYCRR § 200.5U)(3)(i). In ad e process response dated June 27, 2018, the District asserted that the only issue in dispute w s whether the District possessed the discretion to determine the location of individualized educati n services program ("IESP") related services (Ex. IHO-III). See 8 NYCRR §§ 200.5(i)(4), (5 .2 In a letter dated July 1, 2018, I informed the parties of my prior prnfessional background, hi lighted the applicable legal standards, and sought the parties' availability for a pre-hearing onference (Ex. IHO-IV). In a letter dated July 23, 2018, counsel for the District advised me th t the matter had been resolved and the parents would be withdrawing their due process compl nt (Ex. IHO-V). In a letter dated August 15, 2018, the District moved to dismiss the parents' complaint as moot (Ex. IHO-VI). For the

1References to exhibits admitted into evidence a noted a.s "Ex."

reasons set forth below, the District's motion to dismiss the parents' due process complaint is

GRANTED.

II. FINDINGS OFFACT AND CONCLUSI N OF AW

As a general matter, although the use of ummary disposition procedures akin to those used in judicial proceedings are permissible un r the IDEA, they should be used with caution and are appropriate in instances in which the p ies have had a meaningful opportunity to present evidence and the nonrnoving party is un ble to identify a genuine issue of material fact.

See J.D. v. Pawlet Sch. Dist., 224 F.3d at 60, 69 (2d Cir. 2000); Application ofa Student with a Disability (New York City Sch. Dist.), Appeal o. 11-090 at 3 n.3 (SRO Sept. 15, 2011); Application ofa Student Suspected of Having a isability, Appeal No. 11-044 at 5 n.5 (SRO June 22, 2011 ). Under New York State regulati ns, an impartial hearing officer must provide all parties with an opportunity to present evidence d testimony, including the opportunity to confront and cross-examine witnesses. See 8 N CRR § 200,5G)(3)(xii).

Based on the analysis set forth below, I onclude that the matter should be dismissed in with prejudice as moot. Given the District's Jul 11, 2018 decision to deliver speech/language services to students attending non-public school at the non-public school they attend, I find that sole issue which gave rise to the hearing has no been resolved.

It is well settled that the dispute betwee the parties must at all stages be "real and live," and not "academic," or it risks becoming moot. ee lillbask v. State of Conn. Dep't of Educ., 397 F.3d 77, 84 (2d Cir. 2005); Patskin v, Bd. o Educ., 583 F. Supp. 2d 422,428 (W.D.N.Y.

2008); JN. v. Depew Union Free Sch. Dist., 20 8 WL 4501940, at *3-*4 (W.D.N.Y. Sept. 30, 2008); see aiso Chenier v. Richard W. , 82 N.Y. d 830,832 (1993); Hearst Corp. v. Clyne, 50

N. Y.2d 707, 714 ( 1980). In determining wheth . r a controversy has become moot, the relevant inquiry is whether the facts alleged, under all ci -urnstanees, show that there is a substantial controversy of sufficient immediacy and reality o warrant relief. See Christopher P. v. Marcus, 915 F.2d 794. 802 (2d Cir. 1990). Mootness m y be raised at any stage oflitigation. See In re Kurtzman, 194 F.3d 54, 58 (2d Cir. 1999). Ad 'nistratfve decisions rendered in cases that concern such issues that arise out of school yea since expired may no longer appropriately address the current needs of the student. See D niel R.R . v. El Paso Jndep. Sch Dist. , 874 F.2d 1036, 1040 (5th Cir. 1989); MS. v. New Y01·kC ty Dept, of Educ., 734 F. Supp. 2d 271, 280-81

(E.D.N.Y. 2010). In general, cases dealing wit issues such as desired changes in IEPs, specific placements, and implementation disputes may b come moot at the end of the school year because no meaningful relief can be granted. See V.M v No. Colonie Cent. Sch. Dist., 2013 WL 11

3187069, at• 13-* 15 (N.D.N.Y. June 20, 20 13); Application ofa Student with a Disability (New York City Dep't of Educ.), Appeal No. 12-205 8 (SRO July 31, 2014).

The case is now moot as there is no live ntroverny, nor meaningful relief that I can grant the student at this time. At a meeting hel on March 23, 2018 , the CSE noted that the student is educationally classified as having a d parentally placed at a nonpublic school SE recommended that that the student's general education instruction be supported by a resourc room, consultant teaching services, and small group speech/language therapy. The draft IEP d veloped from the March 2018 meeting indicated that the recommended speech and language ther py would be provided to the student in a "non­ integrated" setting (Ex. IHO-III).

In their May 31, 2018 due process comp aint, the parents asserted that the District intended to change "the placement of speech th rapy from to a school within the relief, the parents sought that the student's speech services be kept at her primary school ( . IH0-1). In a memo dated July 12, 2018,.

irector of Special Education, dvised the parents that "for the entirety of the 2018/19 school year, the District will continue t deliver speech/language services to students attending non-public schools at the non-public s hool they attend" (Ex. IHO-V). Given the District's decision, I find that the dispute which ave rise to the parents' due process complaint has been resolved,

Alternatively, an exception to the mootn ss doctrine provides that a claim may not be moot, if the conduct complained of is "capable f repetition, yet evading review." See Honig v.

Doe, 484 U.S. 305, 318-23 (I 988); Lillbask, 39 F.3d at 84-85; Daniel R.R., 874 F.2d at 1040.

The exception applies only in limited situations, see Cily of Los Angeles v. Lyons, 461 U.S. 95, 109 ( 1983 ), and is severely circumscribed, see naust v. City of Kingston, 157 F .3d 86, 88 (2d Cir. 1998). First, it must be apparent that "the c allenged action was in its duration too short to be fully litigated prior to its cessation or expirati n." See Murphy v. Hunt, 455 U.S. 478,482

(1982); Knaust, 157 F.3d at 88. Second, contro ersies are "capable of repetition" when there is a reasonable expectation that the same complaini g 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.

To create a reasonable expectation of recurrenc , repetition must be more than theoretically possible. See Murphy, 455 U.S. at 482; Russma v. Board of Educ., 260 F.3d 114, 120 (2d Cir.

2001). 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 r demonstrated probability of recurrence. See

Russman, 260 F.3d at 120.

Here, there is nothing in the limited reco d before me to demonstrate that the conduct the parents complained of would evade review. If e CSE fails to implement the March 2018 IEP, or otherwise fails to comply with the IDEA, the arents are entitled to exercise their due process rights, including the right to an impartial hearin . See Christopher P., 915 F.2d at 802. Based upon the foregoing, I find that the facts present ere do not meet the "capable of repetition, yet evading review" exception to the mootness doc

III. ORDER

NOW, THEREFORE, IN LIGHT OF HE ABOVE FINDINGS OF FACT, IT IS

HEREBY ORDERED THAT:

The District's motion to dismiss the par ts' May 31, 2018 due process complaint is GRANTED and the matter is hereby DISMISS D with prejudice.

Dated: August 31, 2018

PLEASE TAKE NOTICE

Within 40 days of the date of this deci ion, the parent and/or the public school I district has a right to appeal the decision to a State Review Officer ("SRO") of the New I York State Education Department under Sec ion 4404 of the Education Law and the Individuals with Disabilities Education Act.

I

If either party plans to appeal the dee sion, a notice of inte.n tion to seek review shall I be personally served upon the opposing par no later than 25 days after the date of the decision sought to be reviewed.

I

An appealing party's request for revi shall be personally served upon the opposing party within 40 days from the dftte f the decision sought to be reviewed. An appealing party shall file the notice of intenti n to seek review, notice of request for review, request for review, and proof of service with he Office of State Review of the State Education Department within 2 days after se rice of the request for review is complete. The rules of procedures for appeals before a SRO are found in Part 279 of the Regulations of the Commissioner of Educati n. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed. 0, 1

•

DOCUMENTATION ENTERED INTO THE EARING RECORD

PARENT

None

SCHOOL DISTRJCT

None

IMPARTIAL HEARING OFFICER

I. Due Process Complaint Notice/Impartia Hearing Request, 5/31/18, 2 pgs.

II. Notice of Appointment, 6/7/18, l pg.

III. District's Due Process Response, 6/27/1 , 2 pgs.

Ex. A. Draft Individualized Edu ation Services Program (IESP), 3/23/18, 6 pgs.

(double sided)

IV. Letter to parties from IHO Jeffrey J. Sch ro, 7/1/18, 6 pgs.

V. Letter to IHO Jeffrey J. Schiro from 7/23/18, 1 pg.

Ex. A. Memo to parents from 7/12/18, l pg.

VI. District's Motion to Dismiss, 8/15/18, 1

Footnotes

[1] Education Law § 3602-c-commonly referred t as the dual-enrollment statute-requires parents who seek to obtain educational services for students with disab lities placed in nonpublic schools to file a request for such services in the district of location where the nonpublic sc ol is located on or before the first day of June preceding the school year for which the request for services is made. See N.Y. Educ. Law§ 3602-c(2). "Boards of education of all school districts of the state shall furnish services to tudents who ere residents of this state and who attend nonpublic schools located in such school districts, upon e written request of the parent" N.Y. Educ. Law § 3602- c(2)(a}. In such circumstances, the district of location's C E must review the request for services and "develop an [!ESP] for the student based on the student's individual ne ds in the same manner and with the same contents as an individualized education program." See N.Y. Educ. Law 3602-c(2)(b)(l). The CSE must "assure that special education programs and services are made available to s ents with disabilities attending nonpublic schools located within the school district on an equitable basis, as compar d to special education programs and services provided to other students with disabilities attending public or nonpub ic schools located within the school district. Id. Additionally, unlike the provisions of the IDEA, section 3 02-c provides that a parent may seek review of the recommendation of the CSE pursuant to the impartial hea ing and State-level review procedures pursuant to Education Law§ 4404. Id.