New York City Department of Education, Impartial Hearing Decision

FINAL ORDER

Case Number: 184608

NYS Identifier Number N/A Student's Name: [“Confidential”]

Date of Birth:

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 07/29/19 & 01/07/20

Actual Record Close Date: 06/01/20

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title Eor Date DOE Representative DOE 07/29/19 DOE Representative DOE 01/07/20 Attorney PARENT 07/29/19 01/07/20

Mother PARENT 07/29/19 01/07/20 ABA Provider PARENT 01/07/20

On July 8, 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 New York State approved non-public 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 of and with the consent of the parties or for good cause, the impartial hearing was held on July 7, 2019 (pendency) and January 7, 2020. The parties opted to submit written closing statements that were received on February 7, 2020. (D-3 & P-O) A list of the persons who appeared via affidavits 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 via her attorney(s), the and received at the Department of Education Impartial Hearing Office (“DOE-IHO”) on or about July 1, 2019. The DPC is carried under New York City (“NYC”)

184608. A motion for an Order on Pendency was made by the Parent’s attorney(s) and a hearing on the same was held on July 29, 2019. In relevant part, the following “Statement of Agreement & Order - Pendency” was issued the same day: ORDERED AS PER THE PARTIES’ AGREEMENT and pursuant to the pendency provisions under the IDEA, the student shall immediately continue to receive the placement and services approved in the Findings of Facts & Decision of IHO , dated December 20, 2018, NYC Case # assigned (P-B), the cost of which shall be paid by the DOE upon its receipt of reasonably satisfactory proof of services having been render, retroactive to date the Parent filed her instant DPC; and it is further

The Findings of Facts & Decision of IHO had awarded the following relief to the Parent for a denial of a “free and appropriate public education” ( “FAPE”) to the student for the 2018-2019 school year:

1. District shall reinstate and provide [STUDENT INITIALS] with afterschool programming to include occupational therapy 1:1 2x30, speech and language therapy 1:1 3x30, and ten (10) hours per week of ABA SETSS.

The ABA SETSS services shall be provided by a certified provider at an enhanced rate; and,

2. District shall fund through RSA quarterly parent training to be provided by a provider of Parent's choosing; and,

3. District will provide [STUDENT INITIALS] with a bank of 50 hours of ABA SETSS services, (4) hours of 1:1 speech and language services, and

(2) hours of group speech and language services to be provided by licensed providers within two years of the date of this decision.

In relevant part, the July 29, 2019 “Statement of Agreement & Order - Pendency” also awarded the Parent the following relief: ORDERED that in so much as “pendency relief has been characterized by the Second Circuit as an "automatic injunction" that when invoked is to be immediately implemented by “operation of law’ unless disputed, (see Zvi D., 694 F.2d at 906 (2d Cir. 1982), without the need for a “hearing”, an “order” or IHO involvement, so as to continue services for a student through the pendency of the “impartial hearing” process, and so that he or she is not harmed by a break or a denial of services, and because in this case, the NYC-DOE refused to administratively recognize

“pendency” as is customarily done throughout New York State, and because the NYC-DOE refusal to recognize “pendency” where, as here, there is no dispute as to what constitutes “pendency”, and, whereas here, the NYC-DOE refusal to administratively recognize “pendency” caused the student to suffer a break and/or denial in the receipt of services mandated by the Findings of Facts & Decision dated December 10, 2018 of IHO , NYC Case # assigned, it is ordered that the student in this case shall receive compensatory services in the amount of and in the nature of, those services the student did not receive since July 1, 2019 to the present, the cost of which shall be paid by the NYC-DOE, upon its receipt of reasonably satisfactory proof of the student's entitlement and denial of those services, and reasonably satisfactory proof of those compensatory services having been rendered.

This case was initiated as the result of a written Due Process Complaint (“DPC”) made by the student’s Parent via her attorney(s), the and received at the Department of Education Impartial Hearing Office (“DOE-IHO”) on or about July 1, 2019. The amended DPC was received on or about July 29, 2019. The DPC is carried under New York City (“NYC”) Case No. 184608. The Parent herein alleges that the student has been denied a FAPE for the 2019-2020 school year. At the impartial hearing, the Parent request the following relief: (a) Placement at “ ”, or an appropriate NPS with a substantially similar program, in a 12:1+4 class for the 2019-2020 school year; and (b) © A twelve-month school year for all services; and (c) Special transportation accommodations of an air-conditioned bus with door-to-door service, limited travel time, and fewer students; and (d) Ten hours per week of home-based ABA, starting July 1, 2019 and continuing through the remainder of the 2019-2020 school year at an enhanced rate or reasonable market rate to ensure services, to be provided by a provider(s) selected by the Parent; and (e) In-school 1:1 SLT 2x30, in-school group SLT 1x30, and after-school 1:1 SLT 3x30 (the afterschool SLT should be provided by New York Speech Language Pathology or another qualified provider selected by the Parent, funded through a Related Service Authorization (“RSA”); and (f) In-school 1:1 OT 3x30 and after-school 1:1 OT 2x30 (the after-school OT should continue to be provided by “ ” or another qualified provider selected by the Parent, funded through an RSA); and (g) Quarterly parent training and counseling, to be provided at days and times convenient to the parent and funded through an RSA; and (h) A full-time 1:1 crisis paraprofessional, trained in how to implement the student's BIP; and (i) Any other services found to be appropriate to provide the student a FAPE;

and

(j) Compensatory education for any failure to implement pendency and to provide FAPE to the student for the 2019-2020 school year, including but not limited to any failure to implement non-disputed services; and

(k) In the event that an LBA is not secured to provide services to the student, the DOE must fund 1:1 instruction using principles of ABA and positive behavioral support until such time as the DOE locates an LBA and/or provider(s) that satisfy the state credential; and

(I) That additional relief as may be warranted and appropriate as of the time that the IHO is ready to issue a final order, but which may not have been known to the Parent as of the time of filing.

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 of 1973; and Notice having been duly given to the DOE; and Whereas the matter having come on for an “impartial hearing” before this IHO on January 7, 2020, at which time, the parties agreed to have this decision/order made on the submission of written arguments and testamentary and documentary evidence; and Whereas the Parent appeared with her attorney(s), the , attorney assigned and the DOE by its representative, ; and Whereas the parties thus to agreeing to a “Final Order” based upon the parties’ testamentary and documentary submissions, having been presented to this IHO on the record as being in the best interest of both parties (Id.); and Whereas under the IDEA, the burden of persuasion in an administrative hearing is placed upon the party seeking relief. (See Schaffer v. Weast, 546 U.S. at 59-62) On August 15, 2007, the New York State Legislature amended the Education Law to place the burden of proof upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement would continue to have the burden of proof regarding the appropriateness of such placement. (See Educ. Law

§ 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended statute took effect for impartial hearings commenced on or after October 14, 2007. (SRO No. 08-016); and Whereas DOE having failed to submit any testamentary or documentary evidence to meet it burden under the law; and Whereas to demonstrate the appropriateness of the relief sought, the Parent need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of the student, supported by such services as are necessary to permit the student to benefit from instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65); and Whereas in the absence of evidence demonstrating that the Parent has failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of the relief sought by the Parent, including but not limited to tuition reimbursement. (SRO No. 04-049); and Whereas there being nothing in the record consisting solely of the Parent’s testamentary and documentary submissions that sustains a finding that the Parent has not cooperated with the CSE; and Whereas the Parent submitted the testimony of (4) witnesses on direct examination via affidavit pursuant to 8 NYCRR 200.5/j][3][xii][f], and the DOE having declined it right to contest that testimony and/or substantively cross examine the Parent’s witnesses, with the exception of one witness (P-J, P-K, P-L & P-M, T-42-56); and Whereas the Parent's testamentary and documentary submissions are uncontroverted and need not be repeated herein as they are annexed hereto for the benefit of the reader (T-42-56); and Whereas the DOE has failed to meet its burden under the law and the Parent’s testamentary and documentary submissions clearly reflects that the relief sought meets the unique needs of the student, supported by such services as are necessary that permits the student to benefit from that relief. (Gagliardo & Frank G., supra); and Whereas there is no evidence that the Parent has not cooperated with the DOE; and Whereas the relief sought is in this case is indicated above; and Whereas at the hearing the Parent stated that the student's school placement was not an issue, that she was not challenging the student’s placement, nor any of the in-school services he receives and clarified that she was only seeking reinstatement, continuation of the student after school services of ABA, speech and OT and a bank of compensatory ABA services for the student's loss of over (100) hours of the same (D-3 citing T-20-1 & 33); and Whereas the Parent is seeking compensatory education applied as enforcement of an interim Order of Pendency for home services of ABA upon the lapse of funding or services because the services were suspended as the result of nonpayment (D-3 citing

T-35); and Whereas the DOE argues that compensatory education is not the proper application in this case because it is outside of the scope of enforcement and would amount to “double relief’, and the law does not support “double relief,” for both the initial deprivation and subsequent delay and that the impartial hearing is not the proper forum to challenge the enforcement of an interim order as compensatory education is a form of prospective equitable relief that "serves to compensate a student who was actually educated under an inadequate IEP and to catch-up the student to where [she] should have been absent the denial of a FAPE.", citing Cosgrove v. Bd. of Educ. of Niskayuna Cent. Sch. Dist., 175 F. Supp. 2d 375, 379 (N.D.N.Y. 2001) & S.A., 2014 WL 1311761 (D-3); and Whereas the Parent’s ABA therapist testified that she had been working with the student since March of 2018, for seven hours a week, providing 1:1 ABA therapy to the student for about three to four hours each session in his home (D-3 citing T-42 & 49); and Whereas the DOE notes that there was no evidence of any contractual obligation between the Parent and the ABA provider to stipulate for payment responsibility or recommended hours of ABA services at the rate of $225.00 per hour (D-3); and Whereas the DOE further argues that the Parent’s demand for afterschool / at home ABA and related services in addition to those at the private school is unreasonable, as the Parent is seeking to generalize the skills the student learned at the private school to home and/or community settings, that is not required under the IDEA (D-3 citing Thompson, 540 F.3d at 1151-1152); and Whereas the DOE notes that the student has received afterschool services since preschool and is currently (__) years old (D-3 citing T-65) and Whereas the DOE further notes that the Parent contradicted the ABA provider's testimony by affidavit on the (7) hours of ABA that the student is receiving, while the Parent testified that the student receives (10) hours (D-3 citing T-48 & 65); and Whereas the Parent argues that the private school does not offer any ABA in school. (P-O citing P-M & P-N); and Whereas the Parent notes that the student remains severely delayed in speech and language skills and OT and requires continuation of his individual after-school speech therapy 3x30, after-school 1:1 OT 2x30 in a sensory gym as part of his denial of a FAPE for the 2019-2020 school year (P-O citing P-L & P-M); and Whereas the “Statement of Agreement & Order - Pendency” issued on July 29, 2019 already provides the Parent's request for and/or entitlement to compensatory education services where appropriate (Supra); and Whereas the DOE’s default establishes that the student has been denied a FAPE for the 2019-2020 school year, but does not support a finding of a gross violation of FAPE; and Whereas it is well settled that the enforcement of an IHO's order (here, a “Statement of Agreement & Order - Pendency’) can properly be sought by filing an administrative complaint with the State Education Department's Office of Vocational and Educational Services for Individuals with Disabilities (VESID) pursuant to applicable federal and state regulations, or in federal court under 42 U.S.C. § 1983. (See 34C.F.R.

§§ 300.151-300.153, 8 NYCRR 200.5[l], A.T. v. New York State Educ. Dep't., 1998 WL 765371, at *7(E.D.N.Y. 1998), Blazejewski v. Bd. of Educ., 560 F. Supp. 701 (W.D.N.Y.

1983), SRO Nos.: 06-130, 04-085 & 99-004), see also A.R. v. New York City Dep't of Educ., 407 F.3d 65, 78 n.13 (2TM Cir. 2005) (noting that impartial hearing officers have no enforcement mechanism of their own), SRO Nos.: 04-100 & 04-007 (recognizing that enforcement of prior orders of an impartial hearing officer and/or a State Review Officer are not properly determined by a State Review Officer), SRO No.: 03-071 (holding that petitioner's enforcement remedies include judicial enforcement pursuant to CPLR Article 78, an action in federal court, or VESID administrative complaint procedure), SRO No.

01-086 (holding that petitioner's enforcement request was not properly before a State Review Officer; petitioner's remedy was to seek judicial enforcement of the impartial hearing officer's tuition reimbursement award), SRO No. 99-4, (holding that respondent's remedy was to seek enforcement in state or federal court, citing

Blazejewski, 560 F. Supp. 701, A.T., 1998 WL 765371) and SRO Nos.: 06-044, 02-086, 04-006, 02-011 & 97-64); and Whereas this case has been rendered moot by the “Statement of Agreement & Order - Pendency” issued on July 29, 2019, awarding the Parent the pendency rights cited above, and the Parent having received or being entitle to receive all of the payments she has been awarded under that decision and order; 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 Burlington, 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 due to the DOE’s failure to implement “pendency” as required by law; 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., 2010 WL 983719, at “11 [S.D.N.Y. Mar. 17, 2010]); and Whereas in this case the Parent has now received or is entitled to receive under pendency all of the relief she sought at the impartial hearing and that the 2019-2020 12 month school year at issue will expire on June 26, 2019, 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 2019-2020 school year, on which the DOE has defaulted, no further meaningful relief may be granted to the Parent because she 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 (2 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 (2 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 (2TM 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 (2"¢ 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 2019-2020 school year, because even if a determination on the merits demonstrated that the DOE did not offer the student a FAPE for the 2019-2020 12-month school year, in this instance, it would have no actual effect on the parties because the 2019-2020 12-month school year will expire on June 26, 2020, and the student is entitled to remain to his pendency placement funded by the DOE through the conclusion of the administrative due process, but in this case also by this Final Order; and Whereas accordingly, the Parents’ claims for the 2019-2020 12-month 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, | 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 (2TM 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 (2 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 (2 Cir. 1982), Wagner v. Bd. of Educ., 335 F.3d 297, 301 (4 Cir. 2003), Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 (3”

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, | 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 2020

2021 school year and seek tuition reimbursement for the student at his private school for that school year and continuation of his after school services in a subsequent due process proceeding, the issues presented in such a claim could be different as the placement recommended for the 2019-2020 school year; and Whereas each year the elements of a tuition reimbursement claim or claim of inadequate services must be analyzed separately. (See Mrs. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 67 (2TM 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., 2010 WL 983719, at *11 [S.D.N.Y. Mar. 17, 2010]); and 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 the United States District Court awarding the Parent “pendency” that is retroactive to the date the Parent filed her DPC, said payments having been already made and received or being entitled to be received by the Parent 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 either reimburse the Parent or directly pay for the cost of the student’s receipt of all of the placements and services ordered in the “Statement of Agreement & Order - Pendency” dated July 29, 2019, and independently ordered by this “Final Order” for the entirety of the student’s extended

2019-2020 school year; and it is further

ORDERED that a copy of the relevant “Statement of Agreement & Order Pendency”, dated July 29, 2019, 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 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: June 12, 2020

New York, New York Edgar De Leon - IHO

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

01-02 Withdrawn / Not Received N/A DOE N/A

03 Closing Statement 02/07/20 DOE 09

07/01/19

OZEr-A-TOAMVOWS

Impartial Hearing Request PARENT 14

Findings of Facts & Decision 12/20/18 PARENT 09

IEP 06/11/18 PARENT 19

School Reports 06/2019 PARENT 07

S & L Report 06/03/19 PARENT 08

OT Report 05/20/19 PARENT 15

ABA analysis 05/20/19 PARENT 12

IHR - Amended 07/29/19 PARENT 15

IEP 06/18/19 PARENT 16

Affidavit of 12/10/19 PARENT 11

Affidavit of 12/08/19 PARENT 05

Affidavit of 12/09/19 PARENT 04

Affidavit of 12/19/19 PARENT 06

Notice to Admit 12/09/19 PARENT 07

Closing Statement 02/07/20 PARENT 16

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