New York City Department of Education, Impartial Hearing Decision

FINAL ORDER - DOE DEFAULT - “NO DISPUTED FACTS” - PENDENCY &

MOOTNESS

Case Number: 185720

NYS Identifier Number N/A Student’s Name: - To be Edited and Removed by the NYC-DOE

Date of Birth: [‘Confidential’]

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 07/15/20

Actual Record Close Date: 12/28/20

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

[CONFIDENTIAL] DOE Representative DOE 07/15/20 (T)

[CONFIDENTIAL] Attorney PARENT 07/15/20 (T)

[CONFIDENTIAL] Mother PARENT 07/15/20 (T)

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For #of Pages

N/A N/A N/A DOE N/A

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

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

On August 16, 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 of a ( ) year old student attending a private school and the New York City - Department of Education (“DOE”) - District: , regarding the student's special education program. 1|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 15, 2020. A list of the persons who appeared and the documents entered into evidence is annexed hereto.

BACKGROUND

This case was initiated as the result of a written Due Process Complaint (“DPC”) filed by the student’s Parent “pro se” on or about August 16, 2019 and amended by the Parent’s attorney(s), [CONFIDENTIAL] on or about January 19, 2020. 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 2019-2020 school year. At the impartial hearing, the Parent request the following relief: (a) A finding that that the DOE deprived the student of a FAPE during the 2019-2020 school year; and (b) A finding that the DOE significantly impeded the Parent’s procedural and substantive rights under the IDEA; and (c) A finding that the DOE’s actions and inactions significantly impeded the Parent’s opportunity to meaningfully participate; and (d) An order that the student be provided with an_ independent neuropsychological evaluation by a provider of the Parent’s choice at the rate of $5,000 with payment by the DOE to the provider upon completion of the evaluation within 30 days of submission of the provider's invoice; and (e) An order that the student be provided with an independent speech-language evaluation by a PROMPT trained therapist by a provider of the Parent's choice at market rate with Parent by the DOE to the provider upon completion of the evaluations within 30 days of submission of the provider's invoice; and (f) An order that the student be provided compensatory education in the form of after-school 1:1 ABA therapy by trained providers of the Parent's choosing; and (g) An order that the student be provided with compensatory related services in the form of after school SLT and OT sessions by trained providers of the Parent's choosing; and (h) An order that the DOE reconvene for the purpose of considering the independent evaluations and providing the student with an appropriate IEP that addresses the above-noted concerns; and (i) An order requiring the DOE to fund the student’s placement at the private school until such a time as the DOE reconvenes to develop an appropriate IEP; or, an order directing the DOE to defer the student's case to its Central Based Support Team for referral to a New York State Education Department (“NYSED”) approved non-public school placement at an ABA-based school. In the event that a seat in an appropriate NYSED-approved non-public school cannot be located, an order that the DOE reimburse the Parent for all costs associated with placing the student in any appropriate private school chosen by the Parent for the 2019-2020 school year, regardless of whether it is NYSED-approved; and (j) Any and all other relief that may be warranted based upon the evidence at the hearing and deemed appropriate by the IHO; and, (k) Payment of attorney's fees and expenses.

The Parent's amended DPC notes that an impartial hearing request was filed by the Parent “pro se” on August 16, 2019 and a pendency order was signed on October 25, 2019 awarding the Parent tuition at the private school as the student's “last agreed upon placement” pursuant to the CPSE IEP, which the Parent now seeks to continue.

The “Pendency Agreement” executed between the parties on October 11, 2019, awards the Parent the following relief: SchoolName Duration: Reimbursement or Direct Payment to 10 or 12 School? months

12 Direct payment months

I. Turtion

LE Services

Description of Item or Hourly Duration:10 or RSA/P3 If applicable, Service and rate/cost,ratio 12 months to be reimbursement or ProviderlAgency if and frequency, Issued? Direct Payment to applicable: if applicable Provider?

PP YES/NO

Special Class 9:1:3 12 months Direct Payment

Speech-Language 3x30 1:1 12 months Direct Payment

Therapy

Occupational Therapy 2x30 1:1 12 months Direct Payment

At the impartial hearing, the parties agreed that since the filing of the due process complaint, the Parent received the independent neuropsychological examination through insurance and withdrew that request. (T-4-6) It is not disputed that there was a period of time, perhaps two months, from when the pendency agreement was executed to its implementation that the student did not receive services. And that does not appear to be disputed. (T-5-6) The sole issue to be determined in this case is the Parent's request for a speech and language evaluation to be conducted by an independent provider at the cost of $600, and the fact that the student needs that evaluation is not disputed. (T-6)

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 a final “impartial hearing” before this IHO on July 15, 2020 at which time the DOE did not call any witnesses and did not submit any documents in evidence, defaulted on its statutory burden of production and persuasion, did not dispute that the student requires the Parent’s requested relief (T-4-6); and Whereas the parties agreed to have this decision/order made on the basis of the undisputed facts without any testamentary evidence pursuant to 8 NYCRR

200.5{j][3][xii][f], (T-4-12); and Whereas the Parent appeared with her attorney(s), [CONFIDENTIAL], attorney [CONFIDENTIAL] assigned, and the DOE by its representative, [CONFIDENTIAL]; and

DOE’S DEFAULT

Whereas the DOE defaulted on its statutory obligation and does not dispute the relief sought by the Parent; and a proposed “Final Order” consented to by all the parties based upon the undisputed facts, 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 the DOE having failed to submit any testamentary or documentary evidence to meet it burden under the law (Id.); and Whereas the party who defaults in concedes only liability and not the amount of “damages.” (See CPLR § 3215, First Nat. Bank & Trust Co. v. Classic Collateral Corp., 44 A.D.2d 868, 355 N.Y.S.2d 504 (1974), James _v. Powell, 19 N.Y.2d 249, 279 N.Y.S.2d 10, 225 N.E.2d 741 (1967), McClelland v. Climax Hosiery Mills, 252 N.Y. 347, 169 N.E. 605 (1930); and Whereas the DOE’s default constitutes an admission of liability, but not of damages, which remains the Parent’s burden to prove. (See Fed. R. Civ. P. 55 & City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114 at 128 [2d Cir. 2011]); 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 undisputed facts that sustains a finding that the Parent has not cooperated with the CSE; and Whereas the Parent has not submitted testimony on direct examination via affidavit pursuant to 8 NYCRR 200.5|j][3][xii][f], and the DOE does not dispute the Parent’s asserted facts (T-4-12); and Whereas the undisputed facts need not be repeated herein as they are annexed hereto for the benefit of the reader; and Whereas the DOE has failed to meet its burden under the law and the Parent's submission 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 this IHO having determined that the parties’ consent to the manner of determining this “Final Order’ was made knowingly, intelligently and voluntarily; and Whereas the parties’ oral arguments, discussions, concessions, undisputed facts and this order having been recorded and annexed hereto; and

HEARING NOT REQUIRED

Whereas a hearing on this matter is required only if there is a genuine issue of material fact to be decided. (See Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2 Cir. 1985); AND Whereas additionally, the Second Circuit addressed the issue of a hearing officer's authority to grant a summary judgment motion in an IDEA context in J.D. v. Pawlet Sch. Dist., 224 F.3d 60 (2d Cir. 2000); and Whereas after citing numerous examples wherein hearing officers granted summary judgment motions in IDEA cases in other jurisdictions, the Second Circuit stated that “while not dispositive, we find it persuasive that summary disposition procedures are frequently used to decide IDEA claims that involve no disputed issues of fact.” (Id. at 69); and Whereas the Court went on to state that in an IDEA hearing, “where the parties have had a meaningful opportunity to present evidence and the non-moving party is unable to identify any genuine issue of material fact, the use of a summary judgment procedure is entirely proper.” (ld. at 70); and Whereas the undisputed facts clearly establishes the appropriateness of the relief sought by the Parent; and Whereas the DOE’s default on its statutory obligations constitutes a tacit concession that the student was denied a FAPE for the 2019-2020 school year; and

COMPENSATORY SERVICES FOR DOE’S FAILURE TO IMPLEMENT “PENDENCY”’

Whereas the Second Circuit has repeatedly emphasized that a child is entitled to compensatory education when the district fails to implement pendency. (See Toth v.

N.Y.C. Dep't. of Educ., 720 Fed. Appx. at *51 (2d Cir. 2018); see also Doe v. E. Lyme

Bd. of Educ., 790 F.3d 440, 456 (2d Cir. 2015) (reversing district court award that would “undermine the [IDEA’s] stay-put provision by giving the [school district] an incentive to ignore the stay-put obligation.”), cert. denied, 136 S. Ct. 2022 (2016); Dervishi_v.

Stamford Bd. of Educ., 653 Fed. Appx. 55, 2016 WL 3548246, at *2 (2d Cir. June 27, 2016)(summary order)(same; remanding to district court to award missed services under pendency); Student X. v. N.Y.C. Dep't. of Educ., 2008 WL 4890440, at *23—26;

Burr v. Ambach, 863 F.2d at 1078 (2d Cir.1988) (awarding compensatory relief for delays in hearing process), vacated sub nom. Sobol v. Burr, 492 U.S. 902 (1989), affd on recon. sub nom, Burr by Burr v. Sobol, 888 F.2d 258 (2d Cir. 1989); see SRO No. 18-135, at 15, 18 (remanding to IHO to determine compensatory education for denial of FAPE and to calculate compensatory education for failure to implement pendency); SRO 15-123, at 7-8 (reversing and remanding; “The parent asserts that the [HO erred in dismissing the entirety of the parent's claims regarding the 2013-14 school year as moot. | agree... it is generally accepted that a claim for compensatory education or additional services presents a live controversy...”); and

INDEPENDENT EDUCATIONAL EVALUATION - “IEE”

Whereas if the Parent request an evaluation or disagrees with an evaluation obtained by the school district, the Parent has a right to obtain an IEE at public expense.

(See Regulations of the Commissioner of Education § 200.5(g). (“NYCRR § 200.5”); and Whereas if the Parent request an IEE at public expense, the school district must, without unnecessary delay, either ensure an independent evaluation is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria.

(See 8 NYCRR § 200.5(g)(iv); and Whereas, the statute as written contemplates that the school district will be given notice of the Parent’s request for an evaluation or disagreement with the school district’s evaluation so that it may invoke its right to conduct an evaluation, pay for the Parent's IEE or file a DPC to defend it position to the contrary; and Whereas additionally, 34 C.F.R. 300.502(d) and 8 NYCRR 200.5(i)(3)(vi) provide that if a hearing officer requests an IEE as part of a hearing, the cost of the evaluation must be at public expense; and Whereas there is no dispute that the student needs a speech and language evaluation to be conducted by an independent provider at a cost not to exceed $600 (T6); and Whereas, accordingly, there is no failure on the part of the Parent to notify the DOE of an evaluation it objects to or of her request for an independent educational evaluation, prior to requesting payment for the same, which would not comport with the spirit of the law in that it denies the DOE the options afforded it by the statute to conduct an evaluation, pay for the Parent’s IEE or file a DPC to defend it position to the contrary; and Whereas, accordingly, I find that the Parent is entitled to payment by the DOE for the evaluation requested, and I will also exercise my discretion under 34 C.F.R.

300.502(d) and 8 NYCRR 200.5(i)(3)(vi) and order the DOE to conduct its own evaluations regarding any areas of suspected disabilities that the student may have; and, which the Parent may subsequently agree or disagree with; and

MOOTNESS

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, no further meaningful relief may be granted to the Parent because she has received and/or will receive all of the relief sought pursuant to the parties’ “Pendency Agreement” and their agreement regarding the undisputed facts, and that 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 school year, in this instance, it would have no actual effect on the parties because the 2019-2020 school year expired on June 26, 2020, and the student remained entitled to his pendency placement funded by the DOE through the conclusion of the administrative due process; and Whereas accordingly, the Parents’ claims for the 2019-2020 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., 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 2019-2020 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 and 2021-2022 school years and seek tuition reimbursement for the student at her private school for those school years 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 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 This IHO having determined that the parties’ arguments for and against this “Final Order’ were made knowingly, intelligently and voluntarily; and The parties’ oral arguments, discussions, concessions and this order having been recorded; Now, therefore, it is hereby

ORDERED that this case has been rendered “moot” pursuant to the parties’ “Pendency Agreement dated October 11, 2019 and the “pendency” provisions of the IDEA, based upon the undisputed facts cited above, and the fact that the “Pendency Agreement” is retroactive to the date the Parent filed her DPC, August 16, 2019, with said payments having been already made and received by the Parent and/or the Parent now having an absolute right to receive those payments, 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 reimburse the Parent and/or directly pay the cost of the student’s receipt of all of the placements and services ordered by the “Pendency Agreement’, as well as for the student’s receipt of an independent speech and language evaluation, the cost of which shall not exceed $600, as well as make services on a 1:1 basis and at the same frequency, for all of the services the student is entitled to pursuant to the parties’ “Pendency Agreement’, for the 3 ott entirety of the student’s 2019-2020 school year, at a cost not to exceed the reasonable and fair market rate cost for such services in New York City, for any services missed for the during the student’s 2019-2020 school year due to the DOE’s failure to implement “pendency” in this case for the entirety of the student’s 2019-2020 school year; and it is further

ORDERED that a copy of the student’s “Pendency Agreement” dated October 11, 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 identified above and not evaluated within the last two years for the student’s 2012-2022 school year; 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’s 2021-2022 school year that considers all of the student’s available evaluations and any related information; 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: December 29, 2020

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

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public-School District has a right 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 plans to appeal the decision, a notice 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. (Rev. 07/09/20)