New York City Department of Education, Impartial Hearing Decision

FINAL ORDER - PENDENCY & MOOTNESS

Case Number: 174356

NYS Identifier Number N/A

Student’s Name:

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 11/14/19

Actual Record Close Date: 02/07/20

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date DOE Representative DOE 11/14/19 Attorney PARENT 11/14/19 Assistant PARENT 11/14/19

Mother PARENT 11/14/19 Assistant Principal PARENT 11/14/19

On May 13, 2019, 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 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act, concerning a dispute between the Parent of a year old student attending a 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 having adjournments granted at the request and with the consent of the parties, or for good cause, the impartial hearing was held on November 14, 2019. 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 Parent’s attorney(s), the and received at the Department of Education Impartial Hearing Office (“DOE-IHO”) on or about June 30, 2018. The DPC is carried under New York City (“NYC”) Case No.

174356. The Parent herein alleges that the student was denied a “free and appropriate public education” (“FAPE”) for the 2018-2019 extended school year. At the impartial hearing, the Parent request the following relief:

(a) An Order of Pendency to allow the continuation of the student’s (1) (10)

hours per week of at-home SETSS based on the Resolution Agreement dated September 10, 2016; and (2) 1:1 R.N. throughout the school day and on the bus accompanying him to and from school based on the November 12, 2015 IEP; and

(b) An order for at-home SETSS at an enhanced rate for (10) hours per week during the 12-month 2018-2019 school year; and

(c) An order requiring the DOE to fund the student’s tuition at the private school from July 2018 to June 2019 in the amount of $97,000.00; and

(d) An order providing transportation to take the student between his home and the private school; and

(e) An order providing for a 1:1 R.N. to accompany the student on the vehicle taking him to and from school; and

(f) An order providing for a 1:1 R.N. to be with the student throughout the private school day; and

(g) An order for such other and further relief as is appropriate.

At the impartial hearing, the Parent withdrew her request for an order for at-home

SETSS at an enhanced rate for (10) hours per week during the 12-month 2018-2019 school year. (T-30)

FINAL ORDER

The Parents’ DPC having been duly filed 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 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act; and

Notice having been duly given to the DOE; and

The matter having come on for an “impartial hearing” before this IHO, at which time the Parent appeared with her attorney(s), the , attorney assigned and the DOE by its representative, assigned; and

The record having established that the facts are not disputed (T-18-25) and that the case had been rendered moot by the Parent’s request for and right to “pendency” pursuant to the decision and order of IHO dated September 6, 2018 as follows:

HEREBY ORDERED to provide to Student, as and for his Pendency Program, until the conclusion of this administrative proceeding, his special education program in a Special Class in a Special School ( ) with a staffing ratio of 8: 1 + 1, together with the Related Services of Occupational Therapy, two times per week thirty minutes per session, individually; Physical Therapy two times per week, thirty minutes per session, individually; Speech/Language Therapy two times per week, thirty minutes per session, individually; and School Nurse Services, full time, one-on-one; and an individual Transportation Nurse daily, with Student on the school bus, all at District and Department expense; and it is

FURTHER ORDERED that this Order shall be retroactive to June

30,2018, the date of Parent's filing of her Due Process Complaint.

And, whereas an IHO's jurisdiction is limited by statute and regulations and there is no authority for an IHO to reopen an impartial hearing and reconsider a prior decision or retain jurisdiction to resolve future disputes between the parties. (See SRO Nos. 17-

009, 16-065, 16-035, 15-073, 15-026, 12-096, 11-046, 11-014, 08-041, 08-024, 07-081,

06-133, 06-021, 05-056, 02-043, 98-16, see also, J.T. v. Dep't of Educ., 2014 WL

1213911, at *10 [D. Haw. Mar. 24, 2014]); and

Whereas here, a final decision in this case has not been issued and the IHO still has jurisdiction over this matter; and

Whereas as it is indisputable that the student attended the private school for the 2017-2018 school year and remained at the private school for the 12-month 2018-2019 school year and the Parent signed a contract with the private school for the student’s attendance thereat during the 12-month 2018-2019 school year (T-21-5, 28-9, 31, 44-5,

48-50 & 53-4); and

Whereas it is indisputable that the student was attending the private school at the time that the Parent invoked her right to “pendency” in her DPC dated June 30, 2018; and

Whereas the Parent has received or is entitled to receive all of the payments she is entitled to under that decision and order amended and superseded herewith;

Whereas said facts and circumstances as related herein render this case moot and a hearing on the merits unnecessary; and

Whereas a this “Final Order” having been placed on the record with the parties’ oral arguments and testamentary and documentary having been duly recorded (T-17-

61); and

Whereas in Burlington the question was whether it was appropriate to reimburse parents retroactively for private-school tuition based on the merits of their claim - i.e., because the school district’s IEP was inadequate and the private-school placement was appropriate - and here the basis for retroactive reimbursement is based on pendency; and

Whereas in both cases, however, the Parents were due reimbursement that had been denied them by the simple passage of time, not because they were not entitled, under the IDEA, to the relief they sought; and

Whereas here the argument for retroactive reimbursement is even stronger here than in Burlington because in that case there was apparently no delay based on a statutory time limit, as there is here; and

Whereas in any event, here, as in Burlington, "`such relief as the court determines is appropriate,'" within the meaning of 20 U.S.C. § 1415(i)(2)(B)(iii), "means that equitable considerations are relevant in fashioning relief." 471 U.S. at 374, 105 S.Ct. 1996. (See Mackey v. Bd. of Educ., 386 F.3d 158 (2d Cir. 2004), and Bd. of Educ.

v. O'Shea, 353 F.Supp.2d 449 (S.D.N.Y. 2005); and

Whereas current prevailing case law prohibits a district 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]); and

Whereas in this case the Parent has now received or will receive under pendency all of the relief she sought at the impartial hearing and that the 2018-2019 school year at issue has expired, which raises the question of whether the instant matter has been rendered moot by the passage of time; and

Whereas 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 2018-2019 school year, no further meaningful relief may be granted to the Parent because they has received all of the relief sought pursuant to “pendency”, and thus, the Parent’s case has now been rendered moot; and

Whereas 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; and

Whereas 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); and

Whereas 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); and

Whereas 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); and

Whereas 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); and

Whereas 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); and

Whereas 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); and

Whereas 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); and

Whereas 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); and

Whereas 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); and

Whereas “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); and

Whereas 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 2018-2019 school year, because even if a determination on the merits demonstrated that the DOE did not offer the student a FAPE for the 2018-2019 school year, in this instance, it would have no actual effect on the parties because the 2018-2019 school year expired on June 30, 2019, and the student remained entitled to his pendency placement funded by the DOE through the conclusion of the administrative due process; and

Whereas accordingly, the Parents’ claims for the 2018-2019 school year need not be further addressed here because 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); and

Whereas 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); and

Whereas 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.); and

Whereas after careful consideration and for several reasons discussed below, I respectfully decline to adopt the reasoning as set forth in V.S., because 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]); and

Whereas 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); and

Whereas 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 NYCRR 200.4[f]) and this process usually works best when it is as free as possible from acrimonious relationships that often develop after continued litigation; and

Whereas 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 and 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; and

Whereas, 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; and

Whereas for the forgoing reasons, I decline to find that the Parents’ claim for tuition reimbursement for the 2018-2019 school year continues to be a live controversy, because I find that the matter has been rendered moot by the passage of time and that 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; and

Whereas while the Parent may elect to challenge the IEP developed for the 2019- 2020 and 2020-2021 school years and seek tuition reimbursement for the student at his private school for those school years in a subsequent due process proceeding, the issues presented in such a claim could be different as the placement recommended for the 2018-2019 school year; and

Whereas 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) and, 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); and

Whereas additionally, the Mayor’s policy announced on June 24, 2014 that 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; and

Whereas these changes make it even more less than likely that this matter is capable of repetition that may evade review (supra); and

Whereas it is also important to note that as stated above, case law 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]); and

This IHO having determined that the parties’ the proposed “Final Order” was knowingly, intelligently and voluntarily debated, argued and attested to; and

The parties’ oral arguments, discussions, concessions and this order having been recorded; Now, therefore, it is hereby

ORDERED that this case has been rendered “moot” pursuant to the “pendency” provisions of the IDEA, the undisputed facts cited above and the Decision and Order of IHO dated September 6, 2018 and amended and superseded herewith, retroactive to the date the Parent filed her DPC, said payments having been already made and received by the Parent or due to the same and said payments not being recoupable by the DOE and required upon the DOE’s receipt of reasonably satisfactory proof of said services having been rendered, requiring the DOE to reimburse the Parent for the cost of the student’s receipt of all of the placements and services ordered in, for the entirety of the student’s extended 2018-2019 school year; and it is further

ORDERED, that upon its receipts of reasonable satisfactory proof of services having been rendered, the DOE shall either reimburse the Parent, and/or directly pay the costs of the student’s tuition at the private school from July 2018 to June 2019 in the amount of $97,000.00, transportation of the student to and from his home and the private school and for a 1:1 R.N. to accompany the student on the vehicle taking him to and from school throughout the student private school day, for the entirety of the student’s 12-month 2018-2019 school year; and it is further

ORDERED that a copy of IHO decision and order dated September 6, 2018 (P-D), shall accompany this order for reference; and it is further

ORDERED that the DOE shall immediately re-evaluate the student in all areas of his suspected disabilities not evaluated within the last two years; and it is further

ORDERED that upon completion of the student’s evaluations, the CSE shall forthwith reconvene to produce a new IEP for the student that considers all of the student’s available evaluations and any related information and produce a new IEP for the student’s 2020-2021 school year; and it is further

ORDERED that any of the other relief sought by the Parent not addressed by this “Final Order” is found to be either resolved by the parties, withdrawn by the Parent, outside the scope of the IHO’s authority or unsupported by the record.

DATED: February 11, 2020

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

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For # of Pages

01 IEP 03/27/18 DOE 25

02-09 Withdrawal / Not Received N/A DOE N/A

A IHR 06/30/18 PARENT 05

B-C Withdrawal / Not Received N/A PARENT N/A

D I.O. - Pendency 09/06/18 PARENT 08

E-M Withdrawal / Not Received N/A PARENT N/A

N Class Schedule 2018-2019 PARENT 05

O-P Withdrawal / Not Received N/A PARENT N/A

Q Tuition Guarantee by Parent 05/16/18 PARENT 02

R-Z Withdrawal / Not Received N/A PARENT N/A

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