New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION - DOE DEFAULT & INQUEST

Case Number: 188213

NYS Identifier Number

Student’s Name:

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 06/08/20

Actual Record Close Date: 09/01/20

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date DOE Representative DOE 06/08/20 (T) Attorney PARENT 06/08/20 (T)

Mother PARENT 06/08/20 (T) Educational director PARENT 06/08/20 (T)

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For # of Pages

DOE EXHIBITS

Number Document Date Number

of Pages

1 Speech Therapy Progress Report 12/27/201 2

8

2 Occupational Therapy Progress Report 1/3/2019 2 3 SEIT Progress Report 1/13/2019 3 4 Teacher Progress Report 2/7/2019 1 5 DOE Classroom Observation 1/29/2019 2 6 CPSE Pre-School IEP 3/5/2019 31

7 Notice of IESP Meeting 3/26/2019 3

8 CSE Turning 5 IESP 4/4/2019 11

9 Prior Written Notice – Parentally Placed 4/8/2019 3

10 Email with NYC DOE Office of Non-Public School Payables, 10/3/2020 1

re: SEIT Rate

***Only “1”, “2”, “3”, “4”, and “6” Actually Received in Evidence***

PARENT EXHIBITS

Exh. # Description Date Pages

A. Request for Impartial Hearing 09/06/2019 6

B. IEP 03/05/2019 28

C. Student Progress Report 02/05/2020 6

D. Providers’ Credentials Undated 2

E. Program Description Undated 3

F. Affidavit in Lieu of Testimony- 06/01/2020 6

Educational Director

G. Supervisor’s Certification Undated 2

H Contract with Provider 05/22/19 02

*** Only “A”, “F” and “H” Actually Received in Evidence***

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, regarding 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.

The Parent’s DPC request an “Order on Pendency” and a hearing on the same was held on June 8, 2020. Both sides then made oral arguments on the record concerning the issue of pendency and testimony was received. This order constitutes the undersigned’s order with regard to the same and the merits of the case.

BACKGROUND

This case was initiated as the result of a written Due Process Complaint (“DPC”)

filed by the student’s Parent’s attorney(s), and received at the Department of Education Impartial Hearing Office (“DOE-IHO”) on or about September 6, 2019. The DPC is carried under New York City (“NYC”) Case No.

188213. The Parent alleges that the student was denied a “free and appropriate public education” (“FAPE”) for the 2019-2020 school years. At the impartial hearing, the Parent seeks the following relief:

(a) The DOE to direct funding for an enhanced, comprehensive, clinically supported, individualized, bilingual, special education instructional program of (9) hours per week, through the provider of the parents’ choice at an enhanced rate; and

(b) The DOE to issue RSAs to the Parents for the related services; and

(c) The DOE to pay reasonable attorney fees to the

.

The DOE did not call any witnesses or present a case-in-chief. (T-6-11 & 56-7)

PARENT’S CASE FOR “PENDENCY” AND ON THE MERITS

The Parent argues that the IESP that was developed was inappropriate, as it had unjustifiably removed SEIT services, and so the Parents are seeking the continuation of the program that the child received under CPSE. (T-11) The Parent is seeking pendency based on an IEP dated March 5, 2019, where the CPSE recommended (9)

hours a week of SEIT services and the following related services: speech and language therapy, 2x30, individually, occupational therapy, 2x30, individually, physical therapy, 2x30, individually and counseling services, 2x30, individually as well as 1x30 in a group of (2). (T-12) The Parent is asking that RSAs be provided for the related services and that the SEIT services be provided by an agency, at a rate of $175 per hour. (Id.)

The Parent further argues that SEIT services do not exist for school-aged students, and kindergarten-aged kids age out of SEIT services and move to SETSS services. (T-20-1) the recent Second Circuit decision regarding pendency deals with “placement” and does not necessarily go into “services.” (T-24) The Parent notes that the Second Circuit decision states: "We do not consider here, much less resolved any question presented where the school providing the child pendency's services is no longer available and the school district either refuses or fails to provide pendency services to the child." (T-26) Here, the Parent paid a deposit towards the private services but the remainder of the services have not yet been paid for. (T-33) the Parent agrees that the student is in a 10-month school year program. (T-50)

The Parent’s first witness testified on direct examination via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f]. (P-F) In sum, substance and relevant part, the witness testified as follows:

3. I am licensed by New York State as a Special Education teacher and have a Bilingual Extension in Yiddish.

9. At , we provide one-to-one specialized teaching and advocate for students in their settings. Our special education teacher program is comprehensive, individualized program that is research-based. We provide each student with the individualized special education instruct ion that he or she needs in order to make appropriate progress.

15. The rate for 's services is $ 175 per hour. I have communicated with other agencies in the industry to get a better understanding of what other agencies charge in our field. Some of the agencies I have contacted include , .

, and . ln our

conversations, we have discussed services offered and the rate of these services. The range of rates for these companies was between $165 and

$200 per hour session. 's rate for SETSS services is within the general market rate lor the serv ices in the greater New York City area.

28. provides 9 hours per week of 1:1 SEIT to the Student tor the 2019-2020 school year.

29. The estimated amount charged for these services from September 9, 2019 through June 30, 2020 will be $63,000 This is based on 40 weeks of service, 9 hours per week, at a rate or $175 per hour.

35. is paid $85 per hour for her work with the Student. The difference between the rate charged by the agency and the hourly rate paid to made up of many of the items listed previously:

Weekly supervisions, professional development, educational resources, employment taxes and administrative and overhead costs.

39. For the 2019-2020 school year, the Student receives his services in his mainstream school, .

46. The Student has shown slow and steady progress with his SEIT service provider. However, due to his significant delays in all academic areas, he continues to require SEIT 9 times per week in a 1:1 setting. (P-F)

On cross examination, the witness testified that she was a SETSS provider employed by the New York City Department of Education. (T-72) she conceded that “ ” provides SEIT services at the rate of $175 per hour. (T-73-4) Not all of their providers are paid the $85 per hour that the provider in this case is paid. (T-76)

There was no substantive testimony developed during the witnesses re-direct examination. (T-101-6) On re-cross examination, the witness testified that “ ” does not accept the DOE rate for SETSS or SEIT services. (T-106)

The Parent submitted a document purported to be a contract between the Parent and the private provider for services. (P-H) The document is dated May 22, 2019, prior to the start of the 10-month 2019-2020 school year. (id.) In relevant part, the document states:

We are happy that you have chosen to work with our agency in providing your child with appropriate, effective and high-quality special education services. We share in your goal of having your child remain in their mainstream setting. An annual registration fee of $350 is charged to enroll in our program. In consideration of the registration fee our agency will provide you with the following services:

Assist you in preparing for any meetings you may have with your local Committee on Special Education (CSE);

Provide representation at any Impartial Hearing or Mediation Session regarding your child's IEP or IESP. This will include coordination with your legal representative or advocate and preparation with them to assure your success;

Outreach -If your child has been issued a P-3 Form to obtain SETSS services via voucher known as an RSA the DOE will provide you with a list of providers who have indicated a willingness to accept the voucher. You will be required to make a minimum of 7 attempts, which means telephone or email to the person on the list. You will keep a list of your attempts and be sure to date this and indicate the response. Calling and leaving a message is fine.

Coordinate with your legal representative- You agree that we can speak with this person and that we can review every request for an Impartial

Hearing.

Impartial Hearing: You agree to appear and testify at the impartial hearing office at the assigned date and time. We will prepare you with your legal representative for your appearance. Note that does not schedule these dates and must cooperate with the dates chosen by the Impartial Hearing Officer. There is some flexibility to the dates and changes can be requested only when documentation can be submitted as proof of unavailability. Ex; trip itinerary, medical appointment letter. However, not all judges are willing to grant these changes.

Other: Complete and submit necessary paperwork within a given time frame. This can include a 1040 Tax Return.

Failure to comply with any above may result in termination of services and fees to cover cost of service. (P-H)

The purported contract is only signed by the Parent. There is no agency representatives signature on the document. No evidence of the Parent’s compliance with the requirement that she contact at least (7) DOE providers and maintain a list of her efforts to contact DOE providers was submitted in evidence. The purported contract is missing essential terms like the rate being charged, the frequency of services or the duration of those services.

DOE ARGUMENTS AGAINST “PENDENCY” AND CASE ON THE MERITS

The DOE argues that for the related services requested, the speech, OT, PT, and counseling, the RSAs were issued around August of 2019. (T-12-3) In the effort to resolve the case, the DOE representative asked the Parent's attorney if it could please let her know who the SEIT provider and the rate sought was. (T-14) The Parent's attorney that the provider and rate were irrelevant and refused to answer the inquiries.

(Id.) The DOE's position continues to be that it is interested in entering into a pendency agreement. (T-15)

The DOE quotes the recent and relevant Second Circuit decision regarding pendency as follows: "In its holding that parents are not entitled to public funding, because it is the School District, not the parent, who has the authority to decide how -- decides how a child's last agreed-upon educational program is to be provided during the pendency of a child's IEP dispute." (T-16) The Second Circuit further stated that the pendency stay-put provision requires a school district to, "continue funding whatever education placement was last agreed-upon for the child until the relevant proceedings are complete", and in this case that would be SEIT services, which is a contractually created service that includes all of the elements of that contract, and the rate that the State Education Department has defined. (T-16-7) That rate is about $92 or $94 an hour. (T-17) The DOE does not dispute the requested relief but states that if the (9)

hours of SETSS or SEIT are going to be ordered, the DOE request that it be given the opportunity to locate a provider since this is not a service we mandated on an IESP and it has not yet been afforded that opportunity. (T-42)

ORDER ON PENDENCY

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

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

095 and 07-062).

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

and Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 [3d Cir. 1996]).

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

1985]).

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

Under the IDEA, the pendency inquiry focuses on identifying the student's then current educational placement. (See Mackey v. Bd. of Educ., 386 F.3d 158, 163 [2d Cir.

2004], citing Zvi D., 694 F.2d at 906). Although not defined by statute, the phrase "then current placement" has been found to mean the last agreed upon placement at the moment when the due process proceeding is commenced. (See Murphy v. Bd. of Educ., 86 F. Supp. 2d 354, 359 [S.D.N.Y. 2000] aff'd, 297 F.3d 195 [2002]; SRO No. 01-

013 and 00-073).

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

[2d Cir. 2002], see also Letter to Hampden, 49 IDELR 197[OSEP 2007]).

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

The Second Circuit has proffered three possible definitions of "then current educational placement": (1) the placement described in the student's most recently implemented IEP; (2) the operative placement actually functioning at the time when the pendency provision of the IDEA was invoked; and (3) the placement at the time of the previously implemented IEP. (See Mackey, 386 F.3d at 163, citing Thomas v.

Cincinnati Bd. of Educ., 918 F.2d 618, 625 [6th Cir. 1990] [emphasis added], see also SRO No. 05-006).

The purpose of the pendency provision is to provide stability and consistency in the education of a student with a disability. (See Honig, 484 U.S. 305). The provision

"protect[s] the educational status quo of the student while the parents and the school fight out the legalities of the placement. The provision is student focused, not school district or parent focused." (See Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 391

[N.D.N.Y. 2001]).

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

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

and Mrs. L, 2001 WL 103544, at *9 [D. Me. Feb. 1, 2001]), see also Verhoeven, 207

F.3d at1, 9-11 [noting the policy behind the IDEA's pendency provision supports an interpretation of "current educational placement" that excludes temporary placements], Leonard v. McKenzie, 869 F.2d 1558, 1564 [D.C. Cir. 1989] [finding that the student's private school placement, originally contemplated to last only one year, did not constitute his "current educational placement" for pendency purposes once that year ended], SRO No. 07-095 and 07-062).

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

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

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

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

028, 07-031 and 07-090).

In the case at bar, the DOE does not dispute the requested relief but states that if the (9) hours of SETSS or SEIT are going to be ordered, the DOE request that it be given the opportunity to locate a provider since this is not a service we mandated on an IESP and it has not yet been afforded that opportunity, or that the previously agreed upon SEIT rate of $92 or $94 per hour be ordered (T-17 & 42) “Pendency” in this case is retroactive from the date the Parent filed her DPC, September 6, 2019, and is effective and must be honored throughout the entirety of the student’s 10-month 2019- 2020 school year that ended on June 26, 2020. The remedy, if any, for the DOE’s objection to its own agreement, as nonsensical as that sounds, is for the DOE to bring this matter to a hearing on the merits as soon as possible. However, for the reasons stated below this is no longer possible because the “Order on Pendency” issued in this case, effectively renders the case on the merits moot.

Any failure on the part of the DOE not to honor this “Order on Pendency” is not of the moment or germane to this proceeding. IHOs do not have enforcement powers. 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, 04085 & 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)

However, in this case, I am concerned that the Parent would not tell the DOE the name of the provider she was using, or the rate that the private provider was charging.

(Supra) This made it impossible for the parties to negotiate a good faith settlement of this case. Equitable considerations may not support an award of tuition reimbursement, or the enhanced rate requested in this case, where parents have failed to cooperate with a school district or have otherwise frustrated a district's attempt to offer a FAPE.

(See Bettinger, 2007 WL 4208560, at *6 [stating that a "major consideration" in deciding whether equitable considerations are satisfied is whether the parents have cooperated with the district throughout the process to ensure that the student receives a FAPE];

Carmel, 373 F. Supp. 2d at 411, 417 [stating that numerous courts have held that parents who refuse to cooperate with the CSE equitably forfeit their claim for tuition reimbursement]) Moreover, equitable principles dictate that parents cannot deliberately withhold their child from an intake interview and impede a district's ability to offer a FAPE and also secure a future award of tuition reimbursement at a private school of their choosing. (See Bettinger, 2007 WL 4208560at *7-*8 and SRO Nos.: 06-025 & 05-

075)

An IHO has the discretion to determine whether each party participated in a resolution session and/or fair and good faith negotiates with the other party within the meaning of IDEA and, if not, what action, if any, should be taken. An IHO may either dismiss the complaint for the Parent’s failure to cooperate with the resolution session process, or when the school district has been unable to obtain the participation of the Parent in the resolution meeting despite making reasonable efforts to do so. (See 34 C.F.R. § 300.510(b)[4]) In this case, the Parent’s failure to provide the name of the private provider and the rate being charged for the private services, frustrated the resolution/negotiation efforts of the DOE.

The purported “contract” in this case also raises concerns. “The fundamental basis of a valid, enforceable contract is a meeting of the minds of the parties, and, if there is no meeting of the minds on all essential terms, there is no contract.” (See Benicorp Ins.

Co. v. National Medical Health Card Sys., Inc., 447 F. Supp. 2d 329, 337 (S.D.N.Y. 2006)

It is a basic tenant of contract law that an offer must be so definite as to its material terms or require such definite terms in the acceptance that the performance to be rendered by each party is reasonably certain. (See Contracts 2nd Edition, Calamari & Perillo) The contract is void if the content of the agreement is unduly uncertain. (Id.)

While “indefiniteness” in a contract may be cured by the subsequent conduct of the parties or by a subsequent agreement of the parties, there is no evidence in the record that such conduct or agreement by the parties has occurred in this case. (Id.) The purported contract in this case is only signed by the Parent. There is no agency representatives signature on the document, no evidence of the Parent’s compliance with the requirement that she contact at least (7) DOE providers and maintain a list of her efforts to contact DOE providers was submitted in evidence and essential terms like the rate being charged, the frequency of services or the duration of those services are missing. (P-H)

It has long been held, and it is well settled in the law that in cases of doubt or ambiguity, a contract must be construed most strongly against the party who prepared it and favorably to a party who had no voice in the selection of its language. (See 4 Williston, Contracts, § 621 and 10 NY Jur, Contracts, § 223) Here, there is no doubt that the relevant contract was drafted by the private provider as it is on the agency’s official letterhead. (Id.)

Accordingly, the ambiguity cited above would be held against the private provider, not the Parent, who as a consequence would escape any liability under the agreement.

It is well established that in fashioning relief, IHOs retain the discretion to reduce or deny tuition funding or payment requests where there is collusion between Parents and private schools, here a private provider, or where there is evidence that the private school or private provider has artificially inflated its costs, because since the Parents have selected the unilateral placement, and their financial status is at issue the Parents have the burden of production and persuasion with respect to whether they are legally obligated for the student's tuition payments, or private provider’s enhanced rate. (See Mr. and Mrs. A. v. New York City Dept. of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. Feb. 1, 2011) - emphasis added)

A plain reading of the purported contract, as indicated above, makes clear that the document does not so much contemplate the Parent’s obligation to pay the private provider for services, as it clearer contemplate the parties intention to pursue the impartial hearing process to get an enhance rate for the private provider agency. Without making such a finding here, it is noted that such a situation can encourage claims of a denial of FAPE, solely to open the door to litigation under the IDEA

What’s more, there is no indication in the record that the private provider has taken any measures to collect its fee by way of invoices sent to the Parent, or by threatening and/or pursuing legal action against her for the money allegedly owed. Under the circumstances, I find that the private provider “contract” really contemplates payment of the private provider fees by the DOE and not the Parent. Thus, the Parent herein is actually

“straw person” bring the instant claim on behalf of the private provider, not herself.

The private provider contract is ambiguous and indefinite in its terms. It has long been held that where the contents of an agreement are unduly uncertain, no contract is formed. (See Restatement, Second Contracts § 32, 1 Corbin § 95 and 1 Williston § 37)

As stated above, it is well settled that Parents who choose to unilaterally place their child with a private provider without consent or referral by the school district, do so at their own financial risk. (See Carter, 510 U.S. at 15, Burlington, 471 U.S. at 373-74 and Forest Grove, 129 S. Ct. at 2496) The United States Supreme Court in Burlington held that “retroactive reimbursement” of private educational expenses is appropriate as an available remedy under the IDEA. (See Burlington, 471 U.S. at pp. 370-71, Carter, 510 U.S. at 14-15, Gagliardo, 489 F.3d at 111 (2d Cir. 2007), explaining that parents who believe that their child has been denied a FAPE may, at their own financial risk, enroll the child in a private school and seek retroactive reimbursement for the cost of the private school], Diaz-Fonseca v. Commonwealth of Puerto Rico, 451 F.3d 13, 32, 40

(1st Cir. 2006), concluding that reimbursement under the IDEA allows parents to recover only actual, not anticipated, expenses for private school tuition and related expenses, Cerra, 427 F.3d at 192, noting the availability of "retroactive tuition reimbursement" under the IDEA, Muller v. Comm. on Special Educ. of East Islip, 145 F.3d 95, 106 (2d Cir. 1998), holding that compensation for "out of pocket expenses" was appropriate, Streck v. Bd. of Educ., 2009 WL 2163090, at * 2 (N.D.N.Y. July 17, 2009)

and Emery v. Roanoke City Sch. Bd., 432 F.3d 294, 299 (4th Cir. 2005))

While the IDEA provides that a court shall grant such relief that is determined to be appropriate (20 U.S.C. § 1415[i][2][C][iii], Forest Grove, 129 S. Ct. at 2488), the IDEA does not expressly provide for prospective payment of tuition costs. The IDEA does provide that “a court or a hearing officer may require the “school district” to reimburse the parents for the cost of “private school” enrollment, or private provider services, if the court or hearing officer finds that the school district had not made a FAPE available to the child in a timely manner prior to that enrollment.” (See 20 U.S.C. § 1412[a][10][C][ii], 34 C.F.R. § 300.148[c] and SRO Nos.: 09-001, 07-032, 08-050 & 04-037)

There is no evidence in the hearing record indicating that, under the circumstances, the Parent has made any meaningful payments to the private provider, or that the private provider has ever sought payment of its fees for the 2019-2020 school year from the Parent, or that it has any real viable intention of doing so. (See S.W. v. New York City Dep't of Educ., 2009 WL 857549, at *8-*9 (S.D.N.Y. March 30, 2009]) Accordingly, I must find that the Parent cannot seek the enhanced rate or prospective relief on behalf of the private provider.

The evidence contained in the hearing record supports a finding that it was the private provider, not the Parent, who incurred the financial burden associated with the student's services for the 2019-2020 school year. (See S.W., 2009 WL 857549, at *7-

*9, parent had no financial standing to sue for direct prospective payment to private placement where terms of enrollment contract absolved her of responsibility for paying tuition) However, the private school is not a party in this case and is, therefore, not entitled to relief under the IDEA. (Id.)

I do note; however, that the United States Court of Appeals for the Second Circuit has determined that under the pendency doctrine, school districts may be required to directly fund pendency placements (Bd. of Educ. v. Schutz, 290 F.3d 476, 482-84 [2d Cir. 2002] and Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d195, 200-01

(2d Cir. 2002) and that courts have awarded “prospective payment” to afford access to compensatory education. (See, e.g., Streck v. Bd. of Educ., 2008 WL 2229141 (2d Cir.

May 30, 2008) and Draper v. Atlanta Indep. Sch. System, 518 F.3d 1275, 1286 (11th Cir. 2008) Moreover, a public agency may, under certain circumstances, place a student in an approved private school, however if it does so, the placement must be a public expense and meet state standards. (See 20 U.S.C. §1412[a][10][B]) ]) Where a Parent is seeking “prospective” payment for their unilateral placement, the Parent bears the burden of production and persuasion with respect to whether the Parent has the financial resources to front the tuition costs. (See Mr. & Mrs. A. v. New York City Dep’t of Educ., 2011 WL 321137 at *22 (S.D.N.Y. Feb. 1, 2011)

As previously stated, the Parent cannot assert a claim for the particular relief she has requested on behalf of the private provider, which lacks standing under the IDEA to maintain a claim against the DOE in its own right. (See Emery, 432 F.3d at 299, Piedmont Behavioral Health Center LLC v. Stewart, 413 F.Supp. 2d 746, 755-56 (S.D.

W.Va. 2006) and Malone v. Nielson, 474 F.3d 934, 937 [7th Cir. 2007]) The Parent might argue that she is entitled to direct funding under Connors v. Mills, 34 F. Supp. 2d 795, 805-06 (N.D.N.Y. 1998). However, in Connors, the Court dismissed the Parents' claim for tuition and in dicta discussed the concept of “prospective” tuition payment after the Court made a finding that the school district conceded that it could not provide an appropriate education for the student and that the private placement could. (Id. at 34 F.

Supp. 2d at 806) In the case at bar, the DOE does conceded that the services are appropriate for the student for the 2019-2020 school year.

I find that the Parent in this case is not entitled to the enhanced rate for the private provider for all of the reasons stated herein. (See 20 U.S.C. § 1412[a][10][C][ii], 34 C.F.R. § 300.403[c], Burlington, 471 U.S. 359; Carter, 510 U.S. 7, A.A. v. Bd. of Educ., 196 F. Supp. 2d 259 (E.D.N.Y. 2002) and SRO Nos.: 09-001, 08-050, 07-032 & 04-037)

It is important to note that SETSS are not defined in State or federal laws or regulations and are not identified on the State continuum of special education services.

(SRO No. 16-044) A reference to the service as "direct" is in keeping with the language used in State regulations for consultant teacher services (See 8 NYCRR 200.6[d])

State regulations distinguish between "direct consultant teacher services," which consist of "specially designed individualized or group instruction provided by a certified special education teacher . . .to a student with a disability," from "indirect consultant teacher services," which consist of "consultation provided by a certified special education teacher . . .to regular education teachers" (8 NYCRR 200.1[m] [emphasis added]; see 8 NYCRR 200.6[d]).

There is no evidence in the hearing record to establish that the Parent has incurred any financial obligation to pay the difference between the enhanced rate and the previously agreed upon DOE rate of $92 or $94 per hour. There is no evidence of a viable and legally enforceable "specific arrangement", contract or a legally enforceable agreement with the private provider to pay the provider if the impartial hearing process did not result in an award of an enhanced rate. Therefore, even if the Parent prevailed on the merit of her claim, it would be unclear at this juncture whether or not any relief would be warranted absent evidence that there is a private provider who is owed additional compensation based on an agreement with the Parent or the DOE. The evidence in the hearing record does not support a finding that the DOE failed to make available to the student special education programs and services on an “equitable basis.” (See Educ. Law § 3602-c[2][b][1]) However, the DOE default and its concession that the services are appropriate for the student dictates that the Parent is entitled to receive the relief requested, absent her request for an “enhanced rate” for the reasons stated above.

DOE’S DEFAULT

The DOE failed to call witnesses or to present a case-in-chief. (T-6-11 & 56-7)

The DOE also failed to file and serve an answer or serve a “Prior Written Notice” in this case. (See 20 U.S.C. 1415(f)(3)(e) “Prior Written Notice” means written statements developed in accordance with Section 200.5(a) of the Regulations of the Commissioner of Education and provided to the parents of a student with a disability a reasonable time before the school district proposes to or refuses to initiate or change the identification, evaluation, or educational placement of the student or the provision of a free appropriate public education to the student. It is noted that silence in a responsive pleading is an admission, or that a counterclaim in federal practice is compulsory in the answer or deemed waived. (See New York Practice, 4th Edition §§223 & 224, citing Federal Rules of Civil Procedure, Rule 13(a) & Cummings v. Dresher, 18 N.Y.2d 105, 108, 271 N.Y.S.2d 976, 218 N.E.2d 688, 690 (1966))

Under the IDEA, the DOE has the burden of production and persuasion at an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c]) Here, the DOE did not present ay case or proffer any substantive evidence that it has offered the student a FAPE. This amounts to a tacit concession that the agency did not offer the student a FAPE as required by law. The

DOE did not serve and file an answer in the case, nor did the agency serve the Parent with “Prior Written Notice”, which would provide either a denial of the Parent’s allegation, or some explanation for the agency’s failure to evaluate the student.

It is also fundamentally unfair to allow the DOE to rely solely on the submission of documents in meeting its burden under law, where those documents are rife with double, triple and even unidentified hearsay sources, that cannot be cross examined.

While compliance with technical rules of evidence is not required in administrative hearings, under certain circumstances, the receipt of hearsay evidence may be so prejudicial as to have a tendency to deprive a party of fair hearing. (See Strain v.

Sarafan, 57 A.D.2d 525, 393 N.Y.S.2d 572, N.Y.A.D. (1977), where the hearsay testimony was of vital importance and should have been subjected to cross-examination by the petitioner…the petitioner was deprived of a meaningful hearing, Dukes v. New

York City Housing Authority, 63 A.D.2d 690, 404 N.Y.S.2d 889, N.Y.A.D. (1978), holding that the excessive reliance on hearsay evidence effectively denied petitioner the right to cross-examine adverse witnesses, Claim of Evans, 254 A.D.2d 564, 678 N.Y.S.2d 696, N.Y.A.D. (3 Dept. 1998), (where in an unemployment compensation proceedings, administrative law judge (‘ALJ”) properly exercised discretion to exclude hearsay evidence to protect employer’s fundamental right of cross-examination, where claimant proffered written hearsay statement, authored by acquaintance of the employer’s president, which allegedly indicated that claimant did not resign but was fired, but the acquaintance failed to answer subpoena directing him to testify at hearing, thereby denying employer the opportunity to cross-examine him on the statement, and Alvarado

v. State of New York, 110 A.D.2d 583, 488 N.Y.S.2d 177 (1st Dept. 1985), holding that a license suspension hearing against a boxer and his managers was faulty because of a lack of an opportunity “to cross-examine certain witnesses whose reports were introduced into evidence without their testifying, in violation of SAPA Section 306, subd.

(3).” (Id. at 585, 488 N.Y.S.2d at 179)

As noted above, the DOE’s failure to present a case at the hearing is essentially a concession that it denied the student a FAPE. This leaves, as the primary issue to be resolved through impartial hearing, what relief and/or compensatory education remedy, if any, is available and appropriate to remediate the denial of a FAPE. (SRO No. 17-

033) The DOE was required under the due process procedures set forth in New York State law, to address its burdens in the due process hearing context by describing its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate relief and/or compensatory education remedy that most reasonably and efficiently could place the student in the position that he would have been but for the denial of a FAPE. (See Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 457 [2d Cir. 2015], cert. denied, 136 S. Ct. 2022 [2016], quoting Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [noting that the "'ultimate award [of compensatory education] must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place'"]) When, as here, the DOE does not present any case at the hearing, the hearing, the hearing process essentially becomes an “inquest” as to the appropriate relief.

Here, the DOE has essentially forfeited and conceded liability by failing to present a case and meet its burden under the law to show that it provided the student with a FAPE. New York State law has placed the burden of production and persuasion at an impartial hearing on the school district, unlike states which align the burden of production and persuasion consistent with Schaffer v. Weast, 546 U.S. 49, 58-62 [2005]. It is not an IHO's responsibility to craft the DOE’s position regarding the primary issue in the case, for the denial of FAPE. Accordingly, the undersigned finds that the DOE has denied the student in this case a FAPE for the 2019-2020 school year.

Here, the DOE did not meet its burden under law, and a finding has been made that it denied the student in this case a FAPE for the 2019-2020 school year. (T-6-11 & 56-7) I now turn to the question of whether the DOE should be required to reimburse and/or pay for the private educational services requested for the student, because the services offered by the DOE were inadequate or inappropriate, the services selected by the Parents are appropriate and equitable considerations support the Parent’s claim.

(Burlington, Florence and Cerra, Supra) The Parent need only demonstrate that the requested services are specially designed to meet the unique needs of the student, supported by such services as are necessary to permit her to benefit from the instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65). Here, the DOE concedes that the service were appropriate for the student.

FINAL ORDER - “MOOTNESS”

The “Order on Pendency” issued herein entitles the Parent to payment of the student’s private SEIT/SETSS services, from the date the DPC was filed, September 6, 2019, to the date of this order, which covers the entirety of the student’s 10-month 2019- 2020 school year at the private school.

Accordingly, I must note that in this case the Parent will now receive under pendency all of the relief she sought at the impartial hearing, for the entirety of the student’s 10-month 2019-2020 school year at issue and which has now expired. This raises the question of whether the instant matter has been rendered moot by the passage of time. Upon careful consideration of the evidence in the hearing record I find that regardless of the merits of a decision concerning whether the DOE offered the student a FAPE for the 2019-2020 school year, no further meaningful relief may be granted to the Parent because she will receive all of the modified relief sought pursuant to “pendency”, and thus, the Parent’s case has now been rendered moot. In addition, careful consideration of the District Court's decision rendered in V.S., 2011 WL 3273922, as discussed further below, does not compel a different result.

The dispute between the parties must at all stages be “real and live,” and not “academic,” or it risks becoming moot. (See Lillbask v. State of Conn. Dep’t of Educ., 397 F.3d 77, 84-85 (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)

In general, cases dealing with issues such as desired changes in IEPs, specific placements, and implementation disputes may become moot at the end of the school year because no meaningful relief can be granted. (See, e.g., SRO Nos. 06-044, 05-

058, 04-027, 00-037, 00-016 & 96-37) Administrative decisions rendered in cases concerning such issues arising out of school years that have since expired may no longer appropriately address the current needs of the student. (See Daniel R.R. v. El

Paso Indep. Sch. Dist., 874 F.2d 1036, 1040 (5th Cir. 1989) and SRO Nos. 07-139, 07-

028, 06-070 & 04-007)

An exception provides that a claim may not be moot despite the end of a school year for which the student’s IEP was written, if the conduct complained of is “capable of repetition, yet evading review.” (See Honig v. Doe, 484 U.S. 305, 318-23 (1988), Lillbask, 397 F.3d at 84-85, Daniel R.R., 874 F.2d at 1040 and SRO No. 04-038) The exception applies only in limited situations (see City of Los Angeles v. Lyons, 461 U.S.

95, 109 (1983) and is severely circumscribed. (See Knaust v. City of Kingston, 157 F.3d 86, 88 (2nd Cir. 1998) First, it must be apparent that “the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration.” (See Murphy v. Hunt, 455 U.S. 478, 482 (1982) see Knaust, 157 F.3d at 88 and SRO No. 07-

139) Second, controversies are “capable of repetition” when there is a reasonable expectation that the same complaining party would be subjected to the same action again. (See Weinstein v. Bradford, 423 U.S. 147, 149 (1975), Hearst Corp., 50 N.Y.2d at 714-15 and SRO No. 07-139) To create a reasonable expectation of recurrence, repetition must be more than theoretically possible. (See Murphy, 455 U.S. at 482, Russman v. Bd. Of Educ., 260 F.3d 114, 120 (2nd Cir. 2001) and SRO No. 07-139)

Mere speculation that the parties will be involved in a dispute over the same issue does not rise to the level of a reasonable expectation or demonstrated probability of recurrence. (See Russman, 260 F.3d at 120 and SRO No. 07-139) “Mootness” may be raised at any stage of litigation. (In re Kurtzman, 194 F.3d 54, 58 (2nd Cir. 1999) and SRO No. 07-139)

In this case, there is no longer any live controversy relating to the parties’ dispute over the SETSS services offered by the DOE for the 2019-2020 school year. Here, even if a determination on the merits demonstrated that the DOE did not offer the student a FAPE for the 2019-2020 school year, in this instance, it would have no actual effect on the parties because the 2019-2020 school year expired on June 26, 2020, and the student remained entitled to her pendency placement funded by the DOE through the conclusion of the administrative due process. Accordingly, the Parent’s claims for the 2019-2020 school year need not be further addressed here. An IHO is not required to make a determination that is academic or will have no actual impact upon the parties. (See SRO Nos. 11-085, 09-077, 09-065, 08-104, 08-044, 07-077, 06-044, 04-006, 02-086, 02-011 & 97-64)

Concerning the District Court’s decision in V.S. (2011 WL 3273922), the court in that case held that in SRO No. 10-041, the SRO correctly determined that the Parents’ request for funding for the school year that was the subject of that appeal was no longer at issue where the student was educated at public expense at a private school chosen by the Parents for the duration of the school year pursuant to a pendency order. (See V.S., 2011 WL 3273922, at *9) Noting that a decision in favor of the district in that matter would not affect its obligation to pay the costs of the student’s private school tuition, the Court nevertheless determined that the district sought redress regarding the collateral issue of the student’s ongoing pendency placement for future proceedings and that had a decision been rendered by a SRO on the merits, it would have affected the student's placement. (Id.) 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

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 matter between the parties were a decision on the merits has not been rendered in a previous controversy between them.

For the forgoing reasons, I decline to find that the Parents’ claim for the 2019- 2020 school year continues to be a live controversy. I find that the matter has been rendered moot by the passage of time. The exception to the mootness doctrine does not apply in this case because the matter is not capable of repetition and would not evade review. While the 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. What’s more, 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) Accordingly, the exception to the mootness doctrine does not apply here as I do not find this matter to be capable of repetition yet evading review. (See Honig, 484 U.S. at 318-23, Lillbask, 397 F.3d at 84-85, Daniel R.R., 874 F.2d at 1040 and SRO 04-038)

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

* 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.

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.S., 2010 WL 983719, at *11 [S.D.N.Y. Mar. 17, 2010])

NOW therefore, it is hereby

ORDERED that pursuant to the pendency provisions of the IDEA, upon its receipt of reasonably satisfactory proof of services having been rendered, the DOE shall pay the cost of the student’s receipt (9) hours per week of SEIT/SETSS services, at the parties’ previously agreed upon rate of $92 or $94 dollars per hour, retroactive to the date the Parent filed her instant DPC, September 6, 2020 and for the entirety of the student’s 10- month 2019-2020 school year; and it is further

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

ORDERED that in light of the determinations herein, including the denial of FAPE for the student’s 2019-2020 school year, I nevertheless find that this matter is rendered “moot” and that it is unnecessary to further address the merits of the parties’ contentions herein.

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 “Order on Pendency” issued herewith.

DATED: September 12, 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)

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Footnotes

[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.