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FINDNGS OF FACT AND DECISION
Case Number: 174705
N.Y.S Identifier Number
Name of Student
Date of Birth:
District:
Hearing Requested by: Parents
Date of Pendency Hearing: July 12, 2018
Hearing Officer: James P. Walsh, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
JULY 12, 2018
Esq. Attorney Associated with the Attorneys for Parents Parent
District and Department of Education
Representative Department of Education
The Matter of , (hereinafter referred to as “Student” was initiated by correspondence filed on behalf of Parents by the , dated July 2, 2018 and received by the New York City Department of Education’s Impartial Hearing Office on that date. The Due Process Complaint (Exhibit A) alleged that District’s Committee on Special Education (C.S.E) failed to conduct an Annual Review or otherwise have its Committee on Special Education prepare an Individualized Education program for Student for the 2018-2019 school year, thus failing to provide Student with a free, appropriate public education for the 2018-2019 school year. Parents sought the continued placement of Student at the for the 2018-2019 school year.
The undersigned had been appointed by the New York City Department of Education’s Impartial Hearing Office, after the recusal by one or more previously-assigned Impartial Hearing Officers, as the Impartial Hearing Officer authorized to preside over this matter by notice dated
July 5, 2018.
Contained in Parents’ Due Process Complaint was a request for Pendency. Accordingly, a Pendency Hearing was conducted on July 12, 2018. Thereafter, noting that I was making no determination as to the merits of Parents’ basis for establishing pendency, but simply effectuating the agreement of the parties, I entered an Interim Order on Pendency, dated July 17, 2018, ordering that the Department of Education to fund Student’s placement at the , aS Well as twenty-four hours per week of ABA Therapy at the rate of $160.00 per hour; two hours per week of BCBA Supervision at the rate of $175.00 per hour; two individual sessions of Occupational Therapy per week, forty-five minutes per session, at the rate of $160.00 per session; three sessions on Speech/Language Therapy, forty-five minutes per session, individually, at the rate of $160.00 per session; and Physical Therapy, three times per week, forty-five minutes per session, individually, at the rate of $170.00 per session; transportation to and from home to school; ten hours per week of Home Based ABA services to be provided by once per week; Parent Counseling and Training four times per year; and that Student receive an FM Unit and other
Assistive Technology as recommended on Student’s I.E.P. Such Order was made retroactive to July 2, 2018, the date of filing of Parents’ Complaint (I.H.O. Exhibit II).
Thereafter, upon application by Parents’ counsel, dated December 18, 2019, that such Pendency Order be amended, to which amendment District Representative consented (I.H.O. Exhibit I), I issued an Amended Interim order on Pendency, which required that Student receive, as and for his Pendency program, until the conclusion of this administrative proceeding, the continuation of Student’s attendance at the at Department expense, together with twenty-four hours per week of ABA Therapy, but at the now current at the rate of $195.00 per hour; two hours per week of BCBA Supervision at the now current rate of $195.00 per hour; two individual sessions of Occupational Therapy per week, forty-five minutes per session, at the now current rate of $175.00 per session; three sessions of Speech/Language Therapy, forty-five minutes per session, individually, at the now current rate of $175.00 per session; and Physical Therapy, three times per week, forty-five minutes per session, individually, at the now current rate of $185.00 per session; transportation to and from home to school; ten hours per week of Home Based ABA services to be provided by ; once per week; Parent Counseling and Training four times per year; and that Student receive an FM Unit and other Assistive Technology as recommended on Student’s I.E.P., all at District and New York City Department of Education expense (I.H.O. Exhibit III). Such Order was also made retroactive to July 2, 2018, the original date of filing of Parents’ Complaint.
The 2018-2019 school year has long ago 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 Parents, as there is no relief that I could afford to Parents in a Decision that Parents have not already obtained through the provisions of my Interim Orders on Pendency (I.H.O. Exhibit I and II). Parents had sought to compel the Department of Education to fund Student’s placement and program at The for the 2018-2019 school year. Parents have, through the provisions of the Interim Orders on Pendency, which required that Student be maintained at the at District and Department expense, received all which Parents had sought.
It is my finding and determination that all of the issues raised by Parents in Parents’ 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 IDELR 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.
ORDER
Based upon the above, it is HEREBY ORDERED that Parents’ Due Process Complaint be, and the same hereby is, DISMISSED.
Dated: October 24, 2019 Games Fo Waleh, E29.
James P. Walsh
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 RECORD JULY 12, 2018
2. # of Pages Description: Offered by: Parents’ Due Process Complaint Notice, Parent dated 7-2-18 DOE
10. Findings of Fact and Decision by Impartial Parent Hearing Officer, dated 2-27-18 DOE
OTHER DOCUMENTATION ENTERED INTO RECORD
2. # of Pages Description: Offered by: Email from Attorney and District [.H.O. Representative, dated 1-2-19 DOE
II. Interim Decision Regarding Pendency by 1.H.O. 1.H.O., dated 7-17-18 Il Interim Order by I.H.O.; IHO dated 1/2/19 10 pages Parents