NY IHO #187739: New York City... | Special Education Law

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FINAL ORDER - PENDENCY & DISMISSAL - “MOOTNESS”

Case Number: 187739

NYS Identifier Number

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 07/29/20

Actual Record Close Date: 08/03/20

Hearing Officer: Edgar De Leon

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For # of Pages

01 FOFD 08/23/12 DOE 21

A IHR 09/14/19 PARENT 06

B Order on Pendency 11/09/18 PARENT 08

C 10-Day Notice 08/20/19 PARENT 02

D Enrollment Contract 08/23/19 PARENT 07

E Class Schedule 09/11/19 PARENT 01

F Affidavit of Tuition 01/10/20 PARENT 01

G Program Description undated PARENT 02

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

On September 19, 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”) - , regarding the student’s special education program. I was appointed after the recusal of at least one other IHO. After having adjournments granted at the request of and with the consent of the parties, or for good cause, the impartial hearing was held on July 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 attorney9s0, the and received at the Department of Education Impartial Hearing Office (“DOE-IHO”) on or about September 4, 2019. The DPC is carried under New York City (“NYC”) Case No.

187739. 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) A finding that the student was denied a FAPE for the 2019-2020 school year; and

(c) Direct payment of tuition to the private school for the student from September 2019 through June 30, 2020, with reimbursement of monies paid to date and any payments made in the future; and

(d) Door-to-door special transportation/suitable transportation to the chosen school as mandated by both New York State and Federal law; and

(e) Any additional relief such as the IHO determines is appropriate.

ORDER OF DISMISSAL - 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), the , attorney assigned and the DOE by its Office of Legal Services, attorney assigned; and

Whereas the parties agree that “pendency” lies in the student’s IEP dated May 2, 2017 in conjunction with the student's operative placement at the time that pendency was invoked, which is the student’s current private school, and that “pendency” is retroactive to September 4, 2019, the date that the Parent filed the due process complaint (T-9-13); and

Whereas the “pendency” agreed to between the parties as the undisputed fact covers the entirety of the student's 2019-2020 school year in the relief sought and, therefore, the matter has been rendered moot by that agreement (T-13); 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 (T-9-13); 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

Whereas in this case the Parent has now received, or is entitled to receive under pendency all of the relief she sought at the impartial hearing and that the 2019-2020 school year at issue has expired, which raises the question of whether the instant matter has been rendered moot by the passage of time; and

Whereas upon careful consideration of the evidence in the hearing record I find that regardless of the merits of a decision concerning whether the DOE offered the student a FAPE for the 2019-2020 school year, no further meaningful relief may be granted to the Parent because they has received all of the relief sought pursuant to “pendency”, and thus, the Parent’s case has now been rendered moot; and

Whereas careful consideration of the District Court's decision rendered in V.S., 2011 WL 3273922, as discussed further below, does not compel a different result; and

Whereas the dispute between the parties must at all stages be “real and live,” and not “academic,” or it risks becoming moot. (See Lillbask v. State of Conn. Dep’t of Educ., 397 F.3d 77, 84-85 (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); 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 (2nd 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 (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 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, I 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 (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]); 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 (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 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, I decline to find that the Parents’ claims 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 Parents may elect to challenge the IEP developed for the 2020-2021 and 2021-2022 school years and seek tuition reimbursement for the student at his 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 (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, 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.S., 2010 WL 983719, at *11 [S.D.N.Y. Mar. 17, 2010]); and

This IHO having determined that the parties’ consent to the proposed “Order of Dismissal - Pendency & Mootness” was 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 pursuant to the pendency provisions under the IDEA, upon its receipt of reasonably satisfactory proof of service having been rendered, the DOE shall either reimburse the Parent and/or directly pay the cost of the student’s receipt of all of the services detailed in his IEP dated May 2, 2017, as well as his tuition and related services at his current private school, as it constitutes the student's operative placement at the time that pendency was invoked, and that “pendency” is retroactive to September 4, 2019, the date that the Parent filed the DPC and continues throughout the entirety of the student’ 2019-2020 school ending on June 26, 2020 (T-9-13); and it is further

ORDERED that a copy of the student’s IEP dated May 2, 2017 shall accompany this order for reference; and it is further

ORDERED that this case has been rendered “moot” pursuant to the “pendency” provisions of the IDEA, the undisputed facts cited above and the parties’ “pendency agreement” awarding the Parent “pendency” that is retroactive to the date the Parent filed her DPC, said payments having been already made and received by the Parents or there being an undisputed right on behalf of the Parents to receive said 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 for the cost of the student’s receipt of all of the placements and services ordered in, for the entirety of the student’s 2019-2020 school year; and it is further

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

ORDERED that upon completion of the student’s evaluations, the CSE shall forthwith reconvene to produce a new IEP for the student that considers all of the student’s available evaluations and any related information 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 Parents not addressed by this “Order on Pendency, Mootness & Dismissal” 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: August 13, 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)

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date Attorney DOE 07/29/20 (T) Attorney PARENT 07/29/20 (T)

Mother PARENT 07/29/20 (T)