New York City Department of Education, Impartial Hearing Decision

FINAL ORDER - “MOOTNESS”

Case Number: 185495

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

Date of Birth:

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 11/27/19

Actual Record Close Date: 03/09/20

Hearing Officer: Edgar De Leon

On July 31, 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, concerning a dispute between the Parent ofa(_) year old student attending a 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 and with the consent of the parties, or for good cause, the impartial hearing was held on November 27, 2019. A list of the persons who appeared at the hearing and the documents entered into evidence is annexed hereto.

BACKGROUND

This case was initiated as the result of a written Due Process Complaint (“DPC”) made by the student’s Parent’s attorney(s), and received at the Department of Education Impartial Hearing Office (“DOE-IHO”) on or about July 29, 2019. The DPC is carried under New York City (“NYC”) . The Parent herein alleges that the student was denied a “free and appropriate public education” (“FAPE”) for the 2017-2018 and 2018-2019 school year. At the impartial hearing, the Parent request the following relief: (a) | Reconvene the IEP team to defer the student to the CBST for non-public school placement and add occupational therapy to her IEP and increased speech-language therapy services; and (b) Pay for (720) hours of compensatory tutoring services from a provider of the Parent's choosing at a rate no less than $125.00 per hour; and (c) If occupational therapy is not added to her IEP, paying for an independent occupational therapy evaluation by a provider of the Parent's choosing; at a reasonable cost, not to exceed $2000.00; and (d) Award the student a “Nickerson Letter” for the 2019-20 school year; and (e) Pay for transportation to and from all above-listed services for the student;

and

(f) Provide any other relief deemed appropriate by the IHO.

The parties executed a Resolution Agreement whereby the DOE agreed to conduct a Psychoeducational Evaluation within (15) school days of receiving signed resolution agreement, issue an AA2 for an Independent Occupational Therapy Evaluation at the DOE Rate within (10) school days upon receiving the signed resolution agreement, reconvene an IEP meeting to consider deferral to Central Based Support Team (CBST) for non-public school placement, an increase in speech and language services and the addition of occupational therapy to the IEP, within (30) days of completion of the Psychoeducational Evaluation and to provide (400) hours of compensatory educational services at the rate of ($125) per hour. (D-1)

It was determined at the hearing that the Parent did not agree with the June 26, 2019 the DOE offered and as such and pursuant to established caselaw, the Parent in this case did not qualify for the issuance of a “Nickerson Letter.” (T-17-9)

Neither party called witnesses to testify on their behalf, either live or via affidavit pursuant to 8 NYCRR 200.5/j][3][xii][f]. The DOE submitted the parties’ Resolution Agreement in evidence. (D-1)

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 The matter having come on for an “impartial hearing” before this IHO, at which time the Parent appeared with her attorney(s), , attorney assigned and the DOE by its representative, ; and The Parent having having received all of the relief she sought at the impartial hearing via the parties’ Resolution Agreement (D-1), absent her request for a “Nickerson Letter” that is not warranted or permitted under the facts and circumstances of this case (supra), which raises the question of whether the instant matter has been rendered moot; and Upon careful consideration of the evidence in the hearing record I find that the DOE has defaulted in this case and denied the student a FAPE for the 2017-2018 and 2018-2019 school years. However, no further meaningful relief may be granted to the Parent because she has received all of the relief sought pursuant to the parties’ off-the record agreement. (Supra) Accordingly, the relief requested has already been provided, rendering this case moot (Supra); 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 there is 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 (2"¢ 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); 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 (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, Whereas in 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 (Id.); and Whereas 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 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., 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 |. 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 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; and 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; and Fourthly, 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 Lastly, 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) Thus, there is no barrier to an IHO deciding “pendency” in a future matter between the parties were a decision on the merits has not been rendered in a previous controversy between them; and Whereas for the forgoing reasons, the undersigned declines to find that the Parent’s claim for the 2018-2019 school year continues to be a live controversy; and Whereas I find that the matter has been rendered moot by the passage of time, because 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 2019-2020 school year and seek similar relief for the 2019-2020 school year in a subsequent due process proceeding, the issues presented in such a claim could be different as the recommendation for the 2017-2018 and 2018-2019 school years; and Whereas, each year the elements of a claim 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 Whereas 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 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.

« 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.

e 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) 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]); and Whereas an IHO should not replace a District's reasonable calculation with another possibly reasonable calculation; instead, the District's determinations should actually be accorded deference. (See B.K. v. NYC Dep't. of Educ., 884 F.Supp.2d 39, 56 (S.D.N.Y. 2012) (“Deference is paid to the District, not a third party... it is not within a Court’s purview to upset the programming recommended by the CSE.”); Lessard _v. Wilton-Lyndeborough Coop. Sch. Dist., 592 F.3d 267, 270 (1st Cir. 2010) (the underlying judgment of those having primary responsibility for formulating a student’s IEP is given considerable weight); Z.D. v. Niskayuna Cent. Sch. Dist., 2009 WL 1748794, *6 (N.D.N.Y. 2009) (deference is given to the school district over the opinion of outside experts); and Whereas it has been determined that it would be improper to order placements that are not on a student's IEP as it is improper to circumvent the CSE/IEP process (“To the extent that the parent requested that the district fund the costs of a future placement of the student in a nonpublic school.... it would be inappropriate in this instance to circumvent the statutory process, under which the CSE is tasked with reviewing information about the student's progress under current educational programming and periodically assessing a student's needs, by dictating a particular result, especially in the absence of adequate evidence regarding the annual review of the student's current needs conducted subsequent to the matters under review in this proceeding’.) (See SRO No. 15-077)

NOW therefore, it is hereby

ORDERED that in light of the determinations herein, I find that this matter is rendered “moot” and that it is unnecessary to address the merits of the parties’ contentions herein beyond what is stated above, as the Parent received the relief sought pursuant to the parties’ agreement and the issue of the Parent’s request for a “Nickerson Letter” is not properly before the undersigned; and it is further

ORDERED that the DOE shall immediately conduct evaluations of the student in all areas of her suspected disabilities not evaluated within the last two years, for the 2020-2021 school year; and it is further

ORDERED that the DOE shall forthwith reconvening the CSE after the completion of the student's evaluations and consider those evaluations and any other relevant information and produce a new IEP for the student’s 2020-2021 school year; and it is further

ORDERED that any of the other relief sought by the Parent not addressed by this 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; and it is further

ORDERED that the DPC in this case is dismissed as moot.

DATED: March 13, 2020

New York, New York Edgar De Leon - I.H.O.

PLEASE TAKE NOTICE

The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. Directions and forms can be found on the Office of State Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview. html

DOCUMENTATION ENTERED INTO RECORD

01. Number/Letter Title Dated For #of Pages Resolution Agreement 10/30/19 DOE 02 pages DOE

N/A N/A N/A PARENT N/A

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

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date DOE Representative DOE 11/27/19 Attorney PARENT 11/27/19

Mother PARENT 11/27/19 Intern PARENT 11/27/19

Footnotes

[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 (2TM Cir. 1999) and SRO No. 07-139); and Whereas in this case, there is no longer any live controversy relating to the parties’ dispute over the placement or program offered by the DOE for the 2018-2019 school year, because the parties have resolved the issues between them with the exception of the Parent’s request for SETSS services; and Whereas the 2017-2018 and 2018-2019 school years have expired and the student remains entitled to the services agreed to by the parties through the conclusion of the administrative due process; and Whereas the Parents’ claims for the 2017-2018 and 2018-2019 school year need not be further addressed here and 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 so) see also Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195 (2TM Cir.