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FINAL ORDER - PENDENCY & MOOTNESS
Case Number: 185792
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: 09/04/19 & 06/09/20
Actual Record Close Date: 11/30/20
Hearing Officer: Edgar De Leon
NAMES AND TITLES OF PERSONS WHO APPEARED
Name Title For Date
[CONFIDENTIAL] DOE Representative DOE 09/04/19 06/09/20 (T)
[CONFIDENTIAL] Attorney PARENT 09/04/19 06/09/20 (T)
[CONFIDENTIAL] Mother PARENT 09/04/19
06/09/20 (T)
DOCUMENTATION ENTERED INTO RECORD
Number/Letter Title Dated For # of Pages
N/A N/A N/A DOE N/A
PARENT’S EXHIBITS
A. August 19, 2019 Impartial Hearing Request 8 pages
February 27, 2019 CPSE IEP 27 pages
B.
C. Psychological Evaluation December 2018 6 pages
D. Reade Street Prep Letter February 11, 2019 2 pages
E. Current SEIT Report December 2, 2019 2 pages
F. Occupational Therapy January 15, 2019 4 pages
Progress Report
G. Parent Rejection Letter June 14, 2019 2 pages
H. Affidavit, [Confidential] June 1, 2020 9 pages
I. Affidavit, Rate of Services October 1, 2019 1 page
J. Affidavit, [Confidential] May 27, 2020 5 pages
K. Affidavit, May 27, 2020 8 pages
[Confidential]
L. Occupational
Therapy Progress Report February 4, 2020 3 pages
M. SEIT Progress Report April 4, 2020 2 pages
***Only Parent’s exhibits “A” and “B” were formally received in evidence.***
N/A N/A N/A IHO N/A
On August 21, 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. 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 September 4, 2019 (pendency) and July 29, 2020. 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”)
filed by the student’s Parent via her attorney(s), [CONFIDENTIAL]and received at the Department of Education Impartial Hearing Office (“DOE-IHO”) on or about August 19, 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 2019-2020 school year. At the impartial hearing, the Parent request the following relief:
(a) Pendency for the student’s placement at the private school; and
(b) Direct funding for: 10 hours of SEIT and Occupational Therapy (3x45:1) as agreed to on the student’s 12-month, CPSE IEP, dated February 27, 2019, for the 2019- 2020 school year.
On September 10, 2019, the following “Statement of Agreement & Order -
Pendency” was issued in this case:
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 detailed in her CPSE-IEP dated February 27, 2019 (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
ORDERED AS PER THE PARTIES’ AGREEMENT that a copy of the student’s CPSE-IEP dated February 27, 2019 (P-B), shall accompany this Order for reference; and it is further
ORDERED AS PER THE PARTIES’ AGREEMENT, that any prior written agreement that memorializing this Order, is incorporated in this Order, but shall also survive and shall not be m erged into this Order; and it is further
ORDERED AS PER THE PARTIES’ AGREEMENT that the parties are hereby directed to comply with all legally enforceable terms and conditions of this “Statement of Agreement & Order - Pendency” and the
Comp. Ed. Award below, and any said prior written agreement as if such terms and conditions were set forth entirely herein; and it is further
ORDERED AS PER THE PARTIES’ AGREEMENT that a copy of any prior written agreement between the parties memorializing this “Statement of Agreement & Order - Pendency”, shall accompany this “Statement of Agreement & Order - Pendency” for reference.
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” and/or an “order”, 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 her CPSE-IEP dated February 27, 2019 (P-B), and because 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), aff’d 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); 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 August 19, 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.
ORDER - PENDENCY & MOOTNESS
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), [CONFIDENTIAL], attorney [CONFIDENTIAL]
assigned and the DOE by its representative, [CONFIDENTIAL]; and
Whereas the parties agree that the student’s 12-month CPSE-IEP dated February 27, 2019 (P-B), constitutes the student’s pendency placement and services in this case, and that “pendency” is retroactive to August 19, 2019, the date that the Parent filed the due process complaint (T-23-8); and
Whereas the “pendency” agreed to between the parties as the undisputed fact, and the accompany compensatory services awarded as an equitable consideration for the DOE’s failure to implement pendency as required by the law, covers the entirety of the student's 12-month 2019-2020 school year in the relief sought and, therefore, the matter has been rendered moot by that agreement (Id. & Supra); and
Whereas the parties having agreed that the case had been rendered moot by the Parent’s request for and right to “pendency” pursuant to the undisputed facts, the Parent having received, or being entitled to receive, all of the payments she is entitled to pursuant to the undisputed facts and the parties thus to agreeing to waive a hearing on the merits; and a proposed “Order of Dismissal - Pendency & Mootness” consented to by all the parties having been presented to this IHO on the record as being in the best interest of both parties (Id.); 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 both cases, 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; 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.S., 2010 WL 983719, at *11 [S.D.N.Y. Mar. 17, 2010]); and
COMPENSATORY SERVICES FOR DOE’S FAILURE TO IMPLEMENT “PENDENCY”
Whereas this “Order on Pendency” is retroactive from the date the Parents filed their DPC, August 19, 2019, throughout the entirety of the 10-month 2019-2020 school year that ended on June 26, 2020; and
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), aff’d 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 IHO erred in dismissing the entirety of the parent's claims regarding the 2013-14 school year as moot. I agree… it is generally accepted that a claim for compensatory education or additional services presents a live controversy…”); and
Whereas I find that the DOE’s position in failing to make the payments it agreed to make under the parties’ “Statement of Agreement & Order – Pendency: dated September 10, 2019 (T-26) in this case is totally without merit and constitutes a default on its statutory obligations regarding “pendency” and an “impartial hearing on the merits ”; and
Whereas because of the DOE’s unreasonable delay in delaying the implementation of pendency, I award the Parent the same services, in the same amounts as indicated below, as compensatory and/or makeup services, retroactive to the first day of the student’s 12-month 2019-2020 school year; and
FUTURE RIGHTS
Whereas for the reasons stated below, I further find that the “Order on Pendency” issued in this case, effectively renders the case on the merits moot and also find that any objection to a finding of “mootness” because a finding on the merits is necessary to establish the student’s future rights, perhaps regarding “pendency”, is without merit, because it is well established in the law that these cases are considered a “snapshot in time” limited to the school year at issue and the issues raised in the Parents ’ DPC. (See SRO No. 03-011, citing Roland M. v. The Concord School Committee, 910 F.2d. 983 at
922 [1st Cir. 1990]); and
Whereas mere speculation as to what may happen in the future is not a proper concern in this matter; and
ENFORCEMENT
Whereas should there be an appeal of this decision or should the DOE refuse to make payments pursuant to this Order on Pendency, is a possibility that is not of the moment or germane to this proceeding because IHOs do not have enforcement powers; and
Whereas it is well settled that the enforcement of an IHO's order or an agreement between the parties 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 (2nd Cir. 2005) (noting that IHOs have no enforcement mechanism of their own), SRO Nos.:
04-100 & 04-007 (recognizing that enforcement of prior orders of an IHO and/or a SRO are not properly determined by a SRO), 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 SRO; petitioner's remedy was to seek judicial enforcement of the IHO'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
MOOTNESS
Whereas the “Order on Pendency” and its accompanying award of compensatory services herein entitles the Parents to receive either reimbursement for and/ or direct payment of the student’s private school tuition and services thereat, from the beginning of the student’s 12-month 2019-2020 school year, to the date of this order, which covers the entirety of the student’s 12-month 2019-2020 school year at his current private school; and
Whereas it is noted that the Parent in this case will now receive under pendency all of the relief she sought at the impartial hearing, for the entirety of the student’s 12- month 2019-2020 school year at issue and which has now expired.
Whereas this 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, no further meaningful relief may be granted to the Parent because she will receive all of the modified relief sought pursuant to “pendency”, and thus, the Parent’s case has now been rendered moot; and
Whereas 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 because 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 (2nd 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 (2nd Cir. 1998) First, it m ust 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 (2nd Cir. 2001) and SRO No. 07-139)
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)
“Mootness” may be raised at any stage of litigation. (In re Kurtzman, 194 F.3d 54, 58 (2nd Cir. 1999) and SRO No. 07-139); and
Whereas in this case, there is no longer any live controversy relating to the parties’ dispute 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 12-month 2019-2020 school year expired on June 26, 2020, and the student remained entitled to her pendency placement and services funded by the DOE through the conclusion of the administrative due process; and
Whereas, accordingly, the Parent’s claims for the 2019-2020 school year need not be further addressed here; and
Whereas numerous SRO decisions have affirmed that 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), noting that a decision in favor of the district in that matter would not affect its obligation to pay the costs of the stu dent’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, I 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 (2nd 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
(2nd 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)) 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 (2nd Cir. 1982), Wagner v. Bd. of Educ., 335 F.3d 297, 301 (4th Cir. 2003), Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 (3rd 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.
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.
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 matte r 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, I decline to find that the Parents’ claim 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 the exception to the mootness doctrine does not apply in this case because the matter is not readily capable of repetition and in such a case, if any, the case would not evade review; and
Whereas the Parents may elect to challenge the IEP developed for the 2020-2021 school year and seek tuition reimbursement or enhanced services 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 services recommended for the 2019-2020 school year; and
Whereas each year the elements of a tuition reimbursement or enhanced services claim must be analyzed separately. (See Mrs. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 67 (2nd 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:
• 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 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.S., 2010 WL 983719, at *11 [S.D.N.Y. Mar. 17, 2010]); and
Whereas the parties agree that the “Statement of Agreement & Order - Pendency” issued September 10, 2019 renders this case moot (T-23-8), and the undersigned’s award of compensatory services based upon equitable considerations for the DOE ’s failure to implement pendency, covers all of the relief sought by the Parent at the hearing on the merits.
NOW therefore, it is hereby
ORDERED that the pursuant to the provision of the IDEA regarding “pendency” and its accompany provisions regarding an award of compensatory services for the NYC-DOE’s failure to implement “pendency”, upon its receipt of reasonably satisfactory proof of services having been rendered, the DOE shall either reimburse the Parent and/or directly pay the cost of the student’s tuition and related services at the private school, as well as for all of the services the student is entitled to pursuant to her CPSE-IEP dated February 27, 2019 (P-B), for the entirety of the student’s 12-month 2019-2020 school year thereat, including those same services in the amount indicated in the CPSE-IEP dated February 27, 2019, but in no case duplicating those services which would result in “double dipping”, in addition as an award of compensatory service on the grounds of equitable considerations for the DOE’s default on its statutory obligations under “pendency”, for any of the services the student missed as a result of the DOE’s failure to timely implement “pendency” and on a compensatory and equitable basis to cover the entirety of the student’s 12-month 2019-2020 school year, with the cost for these services not exceed the reasonable and fair market rate cost for such services in New York City; and it is further
ORDERED that the DOE shall conduct evaluations of the student in all areas of her suspected disabilities, not evaluated within the last two years, for the 2021-2022 school year; and it is further
ORDERED that 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 and produce a new IEP for the student’s 2021-2022 school year; and it is further
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 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, unsupported by the record, or rendered moot by the “Statement of Agreement & Order - Pendency” dated September 10, 2019.
DATED: December 6, 2020 _______________________
New York, New York Edgar De Leon - IHO
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the PublicSchool 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)