New York City Department of Education, Impartial Hearing Decision

ORDER ON PENDENCY & FINAL ORDER

Case Number: 184640

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

Date of Birth:

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 07/31/19

Actual Record Close Date: N/A Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Title Eor Date Attorney DOE 07/31/19 Attorney PARENT 07/31/19

Mother PARENT 07/31/19

Director PARENT 07/31/19

On July 10, 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 of 1973, regarding a dispute between the Parent ofa(_) year 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.

The Parent’s DPC request an “Order on Pendency” and a hearing on the same was held on July 31, 2019. Both sides then made oral arguments on the record concerning the issue of pendency and the Parent called (1) witness to testify on her behalf and also gave oral testimony. The parties both submitted memorandums on the issue of pendency that were received on August 21, 2019. (D-2 & P-AA) This order constitutes the undersigned’s order with regard to the same.

BACKGROUND

This case was initiated as the result of a written Due Process Complaint (“DPC”) filed by the student’s Parent’s attorney(s), , ESQ., LMSW, 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”) Case No. 184640.

The Parent alleges that the student was denied a “free and appropriate public education” (“FAPE”) for the 2019-2020 school year. At the impartial hearing, the Parent seeks the following relief: (a) Pendency at the student’s placement, related services, and transportation to and from school; and (b) Payment of the student’s tuition, therapeutic services, and transportation for the 2019-2020 school year; and (c) Payment of the Parent’s attorney fees and costs in connection with representation in this matter; and (d) Any further relief that the Hearing Officer may deem just and proper to ensure the provision of a free and appropriate education to the student.

PARENT’S ARGUMENT FOR AN ORDER ON PENDENCY

The Parent and DOE stipulated that the May 18, 2017, Individualized Education Program (“IEP”) was the last agreed upon was IEP by the Parties (actually dated April 4, 2017 - see below). (P-AA citing D-1) The Parent testified that she had agreed to the same program in October 2014 and May 2017, the IEP created prior to the 2017 IEP, and that the program in those IEPs was substantial similar to the program offered by the student’s current private school. (P-AA citing T-27-8 & 35-6) The only difference between the 2014 and 2017 program is the addition of two individual OT sessions and one individual speech therapy session in the 2017 program and the Parent testified that the student has been attending his current private school since Spring 2015. (P-AA citing T-27) That Parent notes that the DOE did not disagree that it has failed to offer any placement for the student to attend and over the past five school years the student has attended his current private school, including for the 2019-2020 school year. (PAA)

The Parent further argues that if a child's then-current educational placement is not available, the school system must provide the student with placement in a similar program during the pendency of administrative and judicial proceedings. (P-AA citing

Alston v. District of Columbia, 439 F. Supp.2d 86, 90-91 [D.D.C. 2006]) Accordingly, it is clear that the DOE cannot, as it is doing in this case, merely state that the student's pendency is in the program and services in the last agreed upon IEP, but not in an actual placement for the student to attend, since it was required to provide the student with an actual physical placement to receive the program and services provided in the last agreed upon IEP, where the student would actually attend during the pendency of this litigation, if, as it argues here, it is not the school where the student has been attending for the past five years. (P-AA)

Extending the argument, the Parent notes that the pendency provision of IDEA does not require a student to remain in a particular site or location. (P-AA citing

Concerned Parents and Citizens for the Continuing Educ. at Malcolm X v. New York City Dep't of Educ., 629 F.2d 751 [2d Cir. 1980], see also Carrilo v. N.Y.C. Dep't of Educ., 2019 U.S. Dist. LEXIS 100817, at *7-10 [S.D.N.Y. June 13, 2019]) Here, the only testimony in the record is that the current private school provides a substantially similar program and services to that of the 2014 and 2017 IEPs and the DOE cannot make an argument without some fact specific expert testimony to demonstrate that the program is not substantial similar to the 2017, as the Parent’s witness clearly testified that the two programs were substantially similar. (P-AA)

DOE ARGUMENT AGAINST AN ORDER ON PENDENCY

The DOE argues that Committee on Special Education (“CSE”) created the last agreed-upon IEP on or about April 4, 2017. (D-2 citing D-1) The DOE argues that pendency lies only in the program as outlined in the April 2017 IEP and not at the specific placement at the current private school. (D-2) The DOE further argues that the Parent falsely posit that pendency functions as an automatic entitlement to pendency as of right, which takes effect at the time of the filing of the DPC, however, although the pendency provision is an automatic preliminary injunction, it does not take effect until after the “pendency determination is made.” (D-2 citing Angamarca, 2019 WL 3034912, at *6) The Parent has not demonstrated her entitlement to an automatic injunction because: (a) She has not established that the student’s current private school provided a program at the level described in the last agreed-upon IEP; and (b) the current private school is not the operative placement. (D-2)

The DOE further argues that the program described in the April 2017 IEP forms the basis of pendency in this matter and the student is not entitled to placement in a specific school during the pendency of this proceeding. (Id.) The DOE agrees that pendency placement does not guarantee a student a specific school placement, but rather only a general program, which the IEP in that case identified and the DOE’s obligation is to offer a pendency program for the student and not to identify a pendency placement for the student to attend. (D-2 citing T.Y., 584 F.3d at 419)

Here, the proposed program at the student’s current private school deviates from the last agreed-upon IEP that recommends a 6:1:1 placement, and has the student enrolled in a 8:1:3 program. (D-2 citing D-1 & T-45-6) Accordingly, the program placement at the current private school is not sufficiently similar to offer a comparable program to the mandated placement outlined in the IEP. (D-2 citing G.R., 2012 WL

310947, at *7) The testimony on behalf of the Parent establishes that the current private school states that the ratio of the 6:1:1 class is 3:1, while it actually has a ratio of 2:1. (D-2) Additionally, the current private school does not provide four individual occupational therapy sessions, but only three individual sessions each week and one group session of between four and five students. (D-2 citing T-62-3) It also does not provide four individual occupational therapy sessions, but instead only three individual sessions each week and one group session of between four and five students. (Id.)

The DOE also argues that the “operative placement” test is only employed when there is no valid IEP that is relevant to the stay-put issue. (D-2 citing Drinker v. Colonial och. Dist., 78 F.3d 859, 864 (3d Cir. 1996) and Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618, 625-26 [6th Cir. 1990])

ORDER OF PENDENCY & FINAL ORDER

The IDEA and the New York State Education Law require that a student remain in his or her then current educational placement, unless the student's parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the student. (See 20 U.S.C. § 1415]j]; Educ. Law §§ 4404/4], 4410[7][c]; 34 C.F.R. § 300.518[a]; 8 NYCRR 200.5[m]; see also Student X. v. New York City Dep't of Educ., 2008 U.S. Dist. LEXIS 88163, 108 LRP

62802 (E.D.N.Y. Oct. 30, 2008); SRO No. 08-061, 08-050, 08-009, 08-003, 08-001, 07-095 and 07-062).

Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships. (See Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]; Wagner v. Bd. of Educ., 335 F.3d 297, 301 [4th Cir. 2003] and Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 [3d Cir. 1996]).

The purpose of the pendency provision is to provide stability and consistency in the education of a student with a disability and "strip schools of the unilateral authority they had traditionally employed to exclude disabled students . . . from school." (See Honig v. Doe, 484 U.S. 305, 323 [1987]; Evans v. Bd. of Educ., 921 F. Supp. 1184, 1187 [S.D.N.Y.1996], citing Bd. of Educ. v. Ambach, 612 F. Supp. 230, 233 [E.D.N.Y.

1985]).

The pendency provision does not mean that a student must remain in a particular site or location. (See Concerned Parents and Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751 [2d Cir. 1980]; SRO No. 07-125, 07-076, 05-006 and 99-90), or at a particular grade level. (See SRO No. 03-032 and 95-16).

Under the IDEA, the pendency inquiry focuses on identifying the student's then current educational placement. (See Mackey v. Bd. of Educ., 386 F.3d 158, 163 [2d Cir. 2004], citing Zvi D., 694 F.2d at 906). Although not defined by statute, the phrase "then current placement" has been found to mean the last agreed upon placement at the moment when the due process proceeding is commenced. (See Murphy v. Bd. of Educ., 86 F. Supp. 2d 354, 359 [S.D.N.Y. 2000] aff'd, 297 F.3d 195 [2002]; SRO No. 01-013 and 00-073).

The U.S. Department of Education has opined that a student's then current placement would "generally be taken to mean current special education and related services provided in accordance with a child's most recent [IEP]." (See Letter to Baugh, 211 IDELR 481 [OSEP 1987] and Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 [3d Cir. 1996]). However, if there is an agreement between the parties on placement during the proceedings, it need not be reduced to a new IEP, and it can supersede the prior unchallenged IEP as the then current placement. (See Evans, 921 F. Supp. at 1189 n.3; Bd. of Educ. v. Schutz, 137 F. Supp. 2d 83 [N.D.N.Y. 2001] aff'd, 290 F.3d 476, 484 [2d Cir. 2002], see also Letter to Hampden, 49 IDELR 197[OSEP 2007]).

Moreover, a prior unappealed impartial hearing officer's decision may establish a student's current educational placement for purposes of pendency. (See Student X., 2008 U.S. Dist. LEXIS 88163, 108 LRP 62802; Letter to Hampden, 49 IDELR 197 [OSEP 2007]; SRO No. 08-050, 08-009, 07-140 and 07-134).

The Second Circuit has proffered three possible definitions of "then current educational placement": (1) the placement described in the student's most recently implemented IEP; (2) the operative placement actually functioning at the time when the pendency provision of the IDEA was invoked; and (3) the placement at the time of the previously implemented IEP. (See Mackey, 386 F.3d at 163, citing Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618, 625 [6th Cir. 1990] [emphasis added], see also SRO No. 05-006).

The purpose of the pendency provision is to provide stability and consistency in the education of a student with a disability. (See Honig, 484 U.S. 305). The provision "protect[s] the educational status quo of the student while the parents and the school fight out the legalities of the placement. The provision is student focused, not school district or parent focused." (See Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 391 [N.D.N.Y. 2001).

The preservation of the status quo guarantees that the student remains in the last placement that the parent and the district agreed to be appropriate. (See

Verhoeven v. Brunswick Sch. Comm., 207 F.3d 1, 10 [1st Cir. 1999] and Sanford Sch.

Comm. v. Mr. and Mrs. L, 2001 WL 103544, at *9 [D. Me. Feb. 1, 2001]), see also

Verhoeven, 207 F.3d ati, 9-11 [noting the policy behind the IDEA's pendency provision supports an interpretation of "current educational placement” that excludes temporary placements], Leonard v. McKenzie, 869 F.2d 1558, 1564 [D.C. Cir. 1989] [finding that the student's private school placement, originally contemplated to last only one year, did not constitute his "current educational placement" for pendency purposes once that year ended], SRO No. 07-095 and 07-062).

Where neither of the parties appeals the impartial hearing officer's interim decision, that interim decision becomes final and binding on the parties. (See 34 C.F.R.

§ 300.514; 8 NYCRR 200.5[k]; SRO No. 08-073, 08-025, 08-013, 07-050, 07-026, 06-

092, 06-085, 04-024, 03-108 and 02-100).

An IHO must confine his analysis to the evidence contained in the hearing record. (See 8 NYCRR 200.5j][5][v]).. The impartial hearing officer must cite to relevant facts in the hearing record. (See SRO No. 08-064, 08-043, 08-037, 08-028, 07-031 and 07-090).

In the case at bar, it is clear that the IEP date April 4, 2017 constitutes the student's last agreed upon IEP. (D-1) It is undisputable that the student was attending the current private school for the last five years and at the time that the Parent invoked her right to “pendency” and the Parent gave ample testimony to establish the similarity between the IEP’s program and the private school program. (Supra) To accept the DOE’s position would ultimately result in the student not receiving services during the “pendency” of this matter, which in NYC can mean a loss of services for an extended period of time. The remedy, if any, for the DOE’s objection to this Order on Pendency is for the DOE to bring this matter to a hearing on the merits as soon as possible.

I must note that in this case, the instant “Order on Pendency” in favor of the Parent will give her under pendency all of the relief she sought at the impartial hearing and that the 2019-2020 12-month school year at issue is for intents and purposes expired, which raises the question of whether the instant matter has been rendered moot by the passage of time. 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, no further meaningful relief may be granted to the Parent because she will receive all of the relief sought pursuant to “pendency”, and thus, her case has now been rendered moot. In addition, 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.

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 (2TM 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)

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) 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)

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) 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 (2TM 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 or expiration.” (See Murphy v. Hunt, 455 U.S. 478, 482 (1982) see Knaust, 157 F.3d at 88 and SRO No. 07-139)

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) 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 (2 Cir. 2001) and SRO No. 07-139)

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) “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)

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.

Here, even if a determination on the merits demonstrated that the DOE did not offer the student a FAPE for the 2019-2020 school year, in this instance, it would have no actual effect on the parties because the 2019-2020 school year is expiring, due to the Coronavirus Pandemic, and the student remains entitled to his pendency placement funded by the DOE through the conclusion of the administrative due process.

Accordingly, the Parent’s claims for the 2019-2020 school year need not be further addressed here. 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)

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) 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. (lId.) After careful consideration and for several reasons discussed below, | respectfully decline to adopt the reasoning as set forth in V.S..

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 (2TM 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., 2010 WL 983719 (S.D.N.Y. Mar. 17, 2010))

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).

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]) This process usually works best when it is as free as possible from acrimonious relationships that often develop after continued litigation.

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. 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.

Lastly, 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.

For the forgoing reasons, | decline to find that the Parent’s claim for tuition reimbursement for the 2019-2020 school year continues to be a live controversy. I find that the matter has been rendered moot by this Order on Pendency and the passage of time. 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. 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 the 2020-2021 school year 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. What's more, 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 (2 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) 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)

Additionally, the Mayor's new policy announced on June 24, 2014, was implemented September 1, 2014 and includes the following changes in New York City:

e 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.

e 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. e 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.

These changes make it even more less than likely that this matter is capable of repetition that my evade review. (Supra) It is also important to note that there is case law that 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])

NOW therefore, it is hereby

ORDERED that pursuant to the pendency provisions of the IDEA, the DOE shall either reimburse the Parent and/or directly pay the cost of the student’s tuition, therapeutic services, and transportation retroactive to the date the Parent filed her instant DPC, July 1, 2019; and it is further

ORDERED that in light of the determinations herein, I find that a hearing on the merits in this case is rendered “moot” and that it is unnecessary to address the merits of the parties’ contentions herein; and it is further

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

ORDERED that the CSE shall forthwith reconvene and consider all of the student’s evaluations upon their completion and any other relevant information and produce a new IEP for the remainder of 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 decision is found to be either agreed upon by the parties, withdrawn by the Parent, outside the scope of the IHO’s authority or unsupported by the record.

DATED: June 16, 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

01. Number/Letter Title Dated For #of Pages IEP 04/04/17 DOE 21 pages DOE

E. 02 Pendency Memo 08/21/19 DOE 14 IEP 10/21/14 PARENT AA Pendency Memo 08/21/19 PARENT 09 14 pages

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