New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT & DECISION

Case Numbers: 175249 & Student Name:

District:

Hearing Requested By: Parent

Date of Hearing: None

Actual Record Close Date: December 19, 2021

Hearing Officer: Jeffrey J. Schiro, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

For the Student:

ESQ., Attorney

For the District:

ESQ., Attorney

I]. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES

This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was requested by the attorneys for student and the parents in adue process complaint dated July 9, 2018 ( ). The primary issue to be determined at this hearing is whether the New York City Department of Education (the “DOE”’) offered the student a free appropriate public education (“FAPE”) for the 2018/19 and 2019/20 school years (Exs. P-A, P-I).^[1]

When astudent in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local Committee on Special Education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see als®0 U.S.C. §§ 1414(d)(1)(A)-(B); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R.

§§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §8§ 200.5(h)-(1).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with adisability, or astudent suspected of having a disability, or the provision of a free appropriate public education to such as “Ex.” student.” See 8 NYCRR § 200.5(i)(1); see als®0 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1).

An impartial hearing officer (“THO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(A), (h)(1)-(3); 34 C.F.R. §§ 300.521(a)(1)-(4); 8 NYCRR 8§ 200.5()(3)(v), (vii), (x11).

The IHO must render and transmit afinal written decision in the matter to the parties not later than forty-five (45) days after the expiration of the resolution session period. See 34 C.F.R.

§§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(G)(5). A party may seek aspecific extension of time of the 45-day timeline, which the [HO may grant in accordance with State and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”). See N.Y.

Educ. Law § 4402(2); see als®0 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR §

200.5(k).

Il. PROCEDURAL HISTORY

On July 13, 2018, the DOE appointed the undersigned to serve as the IHO in

175149 (concerning the 2018/19 school year). See 8 NYCRR § 200.5G)(3)G). The parent moved for an interim order onpendency (Exs. P-A at 1-2, P-H), see 20 U.S.C. § 1415); 34 C.F.R. § 300.518(a); N.Y. Educ. Law § 4404(4); 8 NYCRR § 200.5(m), which the DOE did not oppose. In an Interim Order on Pendency dated June 26, 2019, I directed the DOE to fund the student’s instruction and related services at his private program for the duration of these proceedings (Ex.

THO-I at 16-17).

On July 9, 2019, the parent filed another due process complaint (Case No. ) which concerned the 2019/20 school year (Ex. P-I). The parent moved to consolidate with Case No. 175149 and, in an Order dated October 14, 2019, that motion was granted based on a finding that consolidation of the two cases would further the interests of judicial economy and the interests of the student (Ex. [HO-II).

A status conference was held with the parties on September 8, 2021 to discuss what issues, if any, remain to be decided following the June 2019 Pendency Order and the October 2019 Consolidation Order and the expiration of the disputed school years (R. 1-17; Exs. IHO-I, IHO-II).^[2] Appended to this decision are: astatement of appeal rights; a list of the persons in attendance at the hearings; and alist of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).

Hl. FACTUAL BACKGROUND

At the time of the July 9, 2018 hearing request ( ), the student was and suffers from an acquired brain injury resulting in severe impairments in the following areas: cognition, language, memory, attention, reasoning, abstract thinking, judgment, problem solving, sensory, perceptual and motor abilities, psychosocial behavior, physical functions, information processing and speech (Exs. P-A at 1, P-B at 5). For the 2018/19 school year, the student attended the ¢‘ yin (Exs.

P-A, P-E), which has not been approved by the Commissioner of Education as a nonpublic school with which public school districts may contract to instruct students with disabilities. See 8 NYCRR §§ 200.1(d), 200.7. The student's eligibility for special education and related services as a student with atraumatic brain injury is not in dispute in this hearing (Exs. P-A, P-B at 5). See

34 C.F.R. § 300.8(c)(12); 8 NYCRR § 200.1(zz)(12).°

The student presents with global delays in all areas of functioning. Due to the severe nature of the student’s brain injury, he is non-verbal and non-ambulatory and has intensive management needs and requires a significant degree of individualized attention and intervention (Ex. P-B at 5).

At ameeting held on June 21, 2016, the DOE’s Committee on Special Education (the “CSE”) convened to develop an individualized education program (“IEP”’’) for the student for the 2016/17 school year. At a meeting held on June 21, 2016, the CSE convened to develop an IEP for the student for the 2016/17 school year. The CSE recommended that the student receive instruction in English/Language Arts and math in al2:1+(3:1) special class in aspecialized ( ) school on atwelve (12) month basis. The CSE also recommended that the student receive related services and supplementary aides and services of: specialized transportation (i.e., lift bus with air conditioning, limited time travel of not more than 90 minutes, and walking aids); Traumatic brain injury means an acquired injury to the brain caused by an external physical force or by certain medical conditions such as stroke, encephalitis, aneurysm, anoxia or brain tumors with resulting impairments that adversely affect educational performance. The term includes open orclosed head injuries or brain injuries from certain medical conditions resulting in mild, moderate or severe impairments in one or more areas, including cognition, language, memory, attention, reasoning, abstract thinking, judgement, problem solving, sensory, perceptual and motor abilities, psychosocial behavior, physical functions, information processing, and speech. The term does not include injuries that are congenital orcaused by birth trauma. 8 NYCRR § 200.1(zz)(12). individual occupational therapy, three (3) times per week for thirty (30) minutes per session; individual physical therapy, three (3) times per week for thirty (30) minutes per session; individual speech/language therapy, three (3) times per week for thirty (30) minutes per session; and afull-time one-to-one health paraprofessional (Ex. P-B at 5-6).

The CSE did not reconvene to develop an IEP for the student for the 2017/18 school year.

In a letter dated June 20, 2017, counsel for the student and parent advised the CSE that the parent would unilaterally place the student at the (“ *’) at public expense for the 2017/18 school year. On October 27, 2017, the parent signed acontract for the student’s enrollment at for the 2017/18 school year (Ex. P-B at 6). The student attended for the entire 2017/18 school year.

On February 12, 2018, the parent filed adue process complaint in alleging that the DOE had denied the student aFAPE for the 2017/18 (Ex. P-B at 2). On February 12, 2018, the DOE appointed the undersigned to hear Case No. . At ahearing held on May 1, 2018, the DOE conceded that it failed to offer the student aFAPE for the 2017/18 school year (Ex. P-B at 6, 10).

In a Findings of Fact and Decision dated July 17, 2018 (for Case No. ), the undersigned determined that the DOE denied the student aFAPE for the 2017/18 school year and that the student received specifically designed, individualized instruction to meet his unique educational needs at (Ex. P-B at 13-14, P-C). The DOE was, therefore, ordered to reimburse the parent for, and/or directly fund, the student’s tuition to, and related services at, for the 2017/18 twelve (12) month school year (Exs. P-B at 14, P-H at 1). The July 17, 2018 Decision in was not appealed by the DOE to the SRO and the time to do so has now expired (Ex. P-H at 1). See 8 NYCRR §§ 200.5(k)(1); 279.2.

While was pending, the CSE reconvened on May 19, 2018 to develop an IEP for the student for the 2018/19 school year. Neither the parent nor staff from were present for the May 19, 2018 meeting. The CSE again recommended that the student receive the majority of his instruction in al2:1+(3:1) special class in aspecialized ( ) school ona twelve (12) month basis. The parent enrolled the student at for the 2018/19 school year.

In a July 9, 2018 due process complaint ( ), the parent objected to the May 19, 2018 IEP for the student onboth procedural and substantive grounds (Ex. P-A at 2-3)

and sought an Order directing the DOE to fund the student’s enrollment at for the 2018/29 school year.

The CSE reconvened on May 30, 2019 to develop an JEP for the student for the 2019/20 school year. The parent asserts that the CSE failed to hold its annual review meeting at a mutually agreeable day and time, and failed to comply with her written requests for the attendance of a DOE physician and additional parent member at the annual review meeting. The May 2019 CSE again recommended that the student receive the majority of his instruction in a 12:1+(3:1) special class in aspecialized ( ) school on atwelve (12) month basis. The parent enrolled the student at for the 2019/20 school year.

In a July 9, 2019 due process complaint (Case No. ), the parent objected to the May 30, 2019 IEP for the student onboth procedural and substantive grounds (Ex. P-I at 2-3) and sought an Order directing the DOE to fund the student’s enrollment at for the 2019/20 school year. This hearing ensued.

IV. POSITIONS OF THE PARTIES

A. The DOE

The due process complaints in this consolidated matter should be dismissed as moot. All instructional, related service and transportation costs for the student’s enrollment at during the 2018/19 and 2019/20 school year have been paid out via pendency (R. 3-4).

B. The Parent

The due process complaints in this consolidated matter are not moot and should not be dismissed. The facts of this case fall within the “capable of repetition, yet evading review” exception to the mootness doctrine and substantive issues remain to be decided that will affect subsequently filed claims for the 2020/21 and 2021/22 school years (R. 4-6).

V. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. Applicable Legal Standards

Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).4

1414(d) of A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.

See Rowley, 458 U.S. at 206-07; 7.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 (2d Cir. June 24, 2013); RE. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012), cert.

denied 2013 WL 1418840 (U.S. June 10, 2013); MH. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).

{A ]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP." Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998) (quoting Rowley, 458 U.S. at 206); see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 (2d Cir. 2009). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out aplan for pursuing academic and functional advancement." Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. _, 137 S. Ct. 988, 999 2017). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and has indicated that "[mJultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not," see R.E., 694 F.3d at 190-91, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA, .H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003); Perricelli v. Carmel Cent. Sch.

this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 500.15 Dist., 2007 WL 465211, at *10 (S.D.N.Y. Feb. 9, 2007).

Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student's right to a FAPE; (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c) caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)Gi); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)Gi); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007); R.E., 694 F.3d at 190; M_H., 685 F.3d at 245; 4.H. v. Dep't of Educ., 2010 WL 3242234, at *2 (2d Cir. Aug. 16, 2010); ELH. v. Bd. of Educ., 2008 WL 3930028, at *7 (N.D.N.Y. Aug. 21, 2008), aff'd, 2009 WL 3326627 (2d Cir. Oct. 16, 2009); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007), aff'd, 2008 WL 3852180 (2d Cir. Aug. 19, 2008).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on adetermination of whether the student received a FAPE. See 20 U.S.C.

§ 1415(H(3)(E)(). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." See Rowley, 458 U.S. at 203. The "IDEA, [however,] does not itself articulate any specific level of educational benefits that must be provided through an IEP." Walcezak, 142 F.3d at 130; see Rowley, 458 U.S. at 189. “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Endrew F., 137 S. Ct. at 1001. The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." See Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989); see also Grim, 346 F.3d at 379.

Additionally, school districts are not required to "maximize" the potential of students with disabilities. See Rowley458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132.

Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and ...affords the student with an opportunity greater than mere 'trivial advancement." See Cerra, 427 F.3d at 195 (quoting Walczak, 142 F.3d at 130); see also T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15. The IEP must be "reasonably calculated to provide some 'meaningful' benefit" See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see also Endrew F., 137 8S. Ct. at 1001 (holding that the IDEA “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”); Rowley, 458 U.S. at 192.

The student's recommended program must also be provided in the least restrictive environment (“LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. §§ 300.114(a)(2)@), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); see also Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 2012 WL 4946429 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp.

2d 384, 388 (S.D.N.Y. 2009); Patskin v. Board of Educ., 583 F. Supp. 2d 422, 428 (W.D.N.Y.

2008).

An appropriate educational program begins with an JEP that includes a statement of the student's present levels of academic achievement and functional performance, see 34 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum, see 34 C.F.R. §§ 300.320(a)(2)(4), (2)()(A); 8 NYCRR § 200.4(d)(2)(i11), 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).°

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for astudent by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim. See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Dep't of Educ., 471 U.S.

359, 369-70 (1985). The remedy of tuition reimbursement has been extended to authorize direct payments to a private school for educational services rendered where Burlington/Carter factors are satisfied. Mr. A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 427-28 (S.D.N.Y. 2011); S.W. v. New York City Dep’t of Educ., 646 F. Supp. 2d 346, 358-60 (S.D.N.Y. 2009); Connors v. Mills, 34 F. Supp. 2d 795, 805-06 (N.D.N.Y. 1998).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for aunilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c); see also R.E., 694 F.3d at 184-85; M-P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).

B. Mootness

It is well settled that 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 (2d 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). Mootness may be raised at any stage of litigation. See In re Kurtzman, 194 F.3d 54, 58 (2d Cir. 1999). Administrative decisions rendered in cases that concern such issues that arise out of school years 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 (Sth Cir. 1989); MS.

v. New York City Dept. of Educ., 734 F. Supp. 2d 271, 280-81 (E.D.N.Y. 2010). 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 V.M. v. No. Colonie Cent. Sch. Dist., 2013 WL 3187069, at *13-*15 (N.D.N.Y. June 20, 2013); Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 12-205 at 8 (SRO July 31, 2014).

In this case, there is no longer any live controversy relating to the parent’s claim for tuition reimbursement and/or direct payment for the student's unilateral private placement at for the 2018/19 and 2019/20 school years. The pendency and consolidation Orders referenced above granted the parent all the relief requested in her due process complaints, and the school years relevant to this consolidated matter have long since expired (R. 10). Absent any implementation issues concerning the pendency and consolidation Orders, this matter is now the chance to meet challenging objectives." See Endrew f407) S. Ct. at 1000. moot (R. 12).

Alternatively, an exception to the mootness doctrine provides that aclaim 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 vDoe, 484 U.S. 305, 318-23 (1988); Lillbask, 397 F.3d at 84-85; Daniel R.R., 874 F.2d at 1040. The exception applies only in limited situations, City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983), and is severely circumscribed, Knaust v. City of Kingston, 157 F.3d 86, 88 (2d 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 orexpiration." Murphy v. Hunt, 455 U.S. 478, 482 (1982); see Knaust157 F.3d at 88.

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. 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 (2d Cir. 2001). Mere speculation that the parties will be involved in adispute over the same issue does not rise to the level of a reasonable expectation ordemonstrated probability of recurrence. See Russman, 260 F.3d at 120.

I find that the exception to the mootness doctrine does not apply here, as the CSE should have convened to revise the student's program and develop new IEPs for the student for the 2020/21 and 2021/22 school years. See 20 U.S.C. § 1414(d)(4)(A); N.Y. Educ. Law § 4402(2); 34 C.F.R. § 300.324(b)(1); 8 NYCRR § 200.4(f). As noted during the September 8, 2021 pre-hearing conference, the parent has filed separate due process complaints concerning the 2020/21 and 2021/22 school years , which have since been consolidated (R. 7-8).

C. Enforcement of Pendency & Consolidation Orders

It is well settled that neither IHOs nor SROs have authority to enforce prior decisions rendered by administrative hearing officers. See N.Y. Educ. Law §§ 4404(1)(a), (2); A.R. v. New

York City Dep't of Educ., 407 F.3d 65, 76, 78 n.13 (2d Cir. 2005) (noting that IHOs do not retain jurisdiction to enforce their orders and that aparty who receives a favorable administrative determination may enforce it in court); 4.7. v. New York State Educ. Dep't, 1998 WL 765371, at *7, *9-*10 & n.16 (E.D.N.Y. Aug. 4, 1998) (noting that SROs have no independent enforcement power and granting an injunction requiring the district to implement afinal SRO decision).

In the event that aparent experiences difficulty with a school district in implementing a final decision of an IHO or SRO reached through the impartial due process hearing process, such parent may file a State complaint against the district through the State complaint process for failure to implement an IHO or SRO's due process decision ormay seek enforcement through the judicial system. See 34 C.F.R. § 300.152(c)(3); SJB v. New York City Dep't of Educ., 2004 WL

1586500, at *4-*5 (S.D.N.Y. July 14, 2004) (finding that parties need not initiate additional administrative proceedings to enforce prior administrative orders); see also A.R., 407 F.3d at 76,

78 n.13.

At the September 8, 2021conference, I directed counsel for the student and parent to confirm whether full payment had been made by the DOE for the student’s tuition and transportation costs at for the 2018/19 and 2019/20 school years, in compliance with the June 26, 2019 Pendency Order and the October 14, 2019 Consolidation Order (R. 15-17). In an email dated September 17, 2021, counsel informed me that “for the 2018/2019 and the 2019/2020 school years, there remains an outstanding balance of for tuition and related services.

For these same two school years, there remains an outstanding balance of for transportation services” (Ex. IHO-I). The DOE has not disputed this report.

In light of the DOE’s noncompliance, I cannot simply dismiss this matter as moot (R. 9-11). Nor, however, am I permitted to retain jurisdiction over this matter solely to enforce my prior interim orders. See A.R., 407 F.3d at 76, 78 n.13. Instead, I now determine that, by virtue of the pendency and consolidation Orders rendered in this matter, the student is entitled to full reimbursement and/or direct payment for tuition, related service and specialized transportation costs associated with the student’s unilateral placement at for the 2018/19 and 2019/20 school years. See Araujo v. New York City Dep’t of Educ., 20 Civ. 7032 (LGS), 77 IDELR 127 (S.D.N.Y. Sept. 24, 2020). Ifthe parent experiences difficulty with DOE in implementing this final decision, she may file a State complaint against the DOE, see 8 NYCRR § 200.5(1), or seek enforcement through the judicial system, see 34 C.F.R. § 300.152(c)(3); A.R., 407 F.3d at 76, 78 n.13.

VI. ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:

1. Within thirty (30) days of the date of this Order, the DOE shall reimburse the parent, and/or directly pay, for all tuition and related service costs associated with the student’s unilateral placement at during the 2018/19 and 2019/20 school years; and

2. Within thirty (30) days of the date of this Order, the DOE shall reimburse the parent, and/or directly pay, for all specialized transportation costs associated with the student’s unilateral placement at during the 2018/19 and 2019/20 school years.

Dated: January 3, 2022

/s/ Jeffrey J. Schiro

Jeffrey J. Schiro, Esq.

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 40 days of the date of this decision, the parent and/or the public school district has aright to appeal the decision to a State Review Officer (“SRO”) of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plan to appeal the decision, anotice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A. Due Process Complaint/Impartial Hearing Request ( ), 7/9/18, 4 pgs.

B. Findings of Fact

& Decision (Case No. ) , 7/17/18, 16 pgs.

C. Individualized Education Program (IEP) (2017/18), 3/3/17, 32 pgs.

D. Program Description, 2017/18, 10 pgs.

E. Individualized Education Program (IEP) (2018/19), 2/6/18, 33 pgs.

F, Program Description, 2018/19, 15 pgs.

G. Affidavit of , 2/8/19, 2 pgs.

H. Memorandum of Law in Support of Petition for Order of Pendency, 2/8/19, 11 pgs.

I. Due Process Complaint/Impartial Hearing Request (Case No. ), 7/9/19, 4 pgs.

SCHOOL DISTRICT

None

IMPARTIAL HEARING OFFICER

I. Interim Order on Pendency ( ), 6/26/19, 19 pgs.

I. Order

on Consolidation (Case Nos. & 175249), 10/14/19, 5 pgs.

IL. Email to THO from , 9/17/21, 1 pg. L.V. v. NYC Department of Education, 03 Civ. 9917 (SDNY)

Parents of children with Individualized Education Programs who received or who may receive an order at the conclusion of an impartial hearing should read the attached notice about possible disclosure of information and documents about their children as part of a federal court litigation.

Translations in Spanish, Arabic, Bengali, Chinese, French, Haitian Creole, Korean, Russian, and Urdu are available on the DOE webpage at https://www.schools.nyc.gov/learning/special-education/help/impartial-hearings

Notice of Potential Disclosure of Student Education Records

Please read this notice carefully. This is a message about possible disclosure of documents or data that might contain information about your child, if your child has been classified as a student with a disability and has been or may be the subject of a final Impartial Hearing Order.

l. Nature of the Lawsuit

This lawsuit challenged the failure of the Department of Education (“DOE”) of the City of New York to timely implement orders issued by impartial hearing officers in connection with impartial hearings held pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400, ef seg. and N.Y. Education Law § 4401, et seg. In 2007, the parties entered into a Stipulation of Settlement (the “Stipulation”) in which the DOE agreed to timely implement these orders.

In January 2021, the Court granted plaintiffs’ motion for the appointment of a special master. On April 14, 2021, the Court entered an Order appointing David Irwin of Thru-Ed as the Special Master. On May 14, 2021, the Court entered an Order detailing the duties and authority of the Special Master which include, among other things, the authority to review DOE’s processes for implementing impartial hearing orders and to recommend to the Court improvements to enable DOE to timely implement orders a. Pursuant to this Order, the Special Master may have access to education records of students, upon DOE’s compliance with the Family Education Rights and Privacy Act (20 U.S.C. § 1232g; 34 C.F.R. Part 99) (“FERPA”).

Il. Data Ordered to Be Disclosed

In order for the Special Master to perform his duties, the Court has directed the DOE to provide the Special Master (and employees and consultants at Thru-Ed) with access to records containing confidential student record information, including, but not limited to, documents submitted in the impartial hearing process, impartial hearing orders, data about compliance, and students’ special education documents, such as individualized education programs, evaluations, authorizations, invoices, etc. The Special Master is required to keep any student documents and information confidential. No student-specific information will be shared with plaintiffs’ counsel unless the student’s parent specifically consents. If there is any student-specific information in the Special Master’s reports to the Court, that information would not be made public.

The Special Master will use this information only for his work to review DOE’s processes for implementing impartial hearing orders and to recommend to the Court improvements to enable DOE to timely implement orders. The disclosure of this information does not affect any of your rights as a parent to seek special education services for your child.

IV. Objections to Disclosure

If you agree to the disclosure of this information to the Special Master, you do not need to do anything more.

If you do not want your child’s information shared with the Special Master, you must object to this disclosure by submitting an objection to DOE’s attorney, addressed to: Jeffrey S. Dantowitz

NYC Law Department

100 Church Street, Room 2-121

New York NY 10007 or via email at LVObjection@law.nyc.gov. Please reference the LV v. DOE lawsuit (Case No. 03-9917) when writing. An Objection Form accompanies this Notice, though no written objection will be rejected if it is not submitted on this form. If you object, no records containing you and your child’s personally identifiable information or other FERPA-protected information will be provided to the Special Master, although nominal and incidental disclosure of your child’s name may occur. Any objections must be received by December 3, 2021 or for impartial hearing orders issued after November 12, 2021, within 3 weeks of the issuance of the impartial hearing order. If you would like more information about this notice, please contact the attorneys for plaintiffs, Rebecca Shore, of Advocates for Children of New York, Inc. at 646-532-6078.

OBJECTION TO DISCLOSURE OF RECORDS

LV v. DOE, 03 Civ. 9917 (SDNY)

If you agree to the release of information about your child to the Special Master appointed in L.V. v. DOE, you do not need to complete this form.

If you object to the release of information about your child to the Special Master appointed in L.V. v. DOE, please compete and return this form to: Jeffrey S. Dantowitz

NYC Law Department

100 Church Street, Room 2-121

New York, NY 10007 or via email at LVObjection@law.nyc.gov Child’s name:

Name:

Address: Impartial Hearing Order Case # (if known): Date of Order (if known):

If you object to the release of your confidential information, please check the line below: I do not agree to have my confidential records disclosed to the Special Master in L.V. v. DOE. Date Please sign here If you object to the release of information, your objection must be received by December 3, 2021 or, for impartial hearing orders issued after November 12, 2021, within 3 weeks of the issuance of the impartial hearing order.

x =* —* Tf you do not notify the DOE of your objections to the documents being released, you child’s information will be provided to the Special Master appointed in LVv.DOE,

99 Civ. 9917 (SDNY) and/or consultants and employees of Thru-Ed. The information will remain confidential and the disclosure of this information will not affect any of your rights to seek special education services for your child. https://www.schools.nyc.gov/learning/special-education/help/impartial-hearingscs 5SY! 28 gall 8 yl}: ad Ay pall dally atiuadll Ida deg UU

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Footnotes

[1] ‘References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted

[2] “Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to accommodate the availability of the parties’ respective witnesses and to allow for adequate time for myreview of the hearing record taken on the extensive issues raised in the parents’ due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons justified the delay in the resolution of the matter and were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted.

[3] Traumatic brain injury means an acquired injury to the brain caused by an external physical force or by certain medical conditions such as stroke, encephalitis, aneurysm, anoxia or brain tumors with resulting impairments that adversely affect educational performance. The term includes open orclosed head injuries or brain injuries from certain medical conditions resulting in mild, moderate or severe impairments in one or more areas, including cognition, language, memory, attention, reasoning, abstract thinking, judgement, problem solving, sensory, perceptual and motor abilities, psychosocial behavior, physical functions, information processing, and speech. The term does not include injuries that are congenital orcaused by birth trauma. 8 YCRR § 200.1(zz)(12).

[4] “The term “free appropriate public education” means special education and related services that — (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section

[5] The Supreme Court has stated that even if it is unreasonable to expect astudent to attend aregular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have