New York City Department of Education, Impartial Hearing Decision

ORDER ON PENDENCY & FINAL ORDER - “MOOTNESS”

Case Number: 188396

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

Date of Birth:

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 06/17/20

Actual Record Close Date: 09/01/20

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Title For Date Attorney DOE 06/17/20 (T) Attorney DOE 06/17/20 (T) Advocate PARENT 06/17/20 (T)

Father PARENT 06/17/20 (T)

DOCUMENTATION ENTERED INTO RECORD

DOE EXHIBITS

1. # Date Document Pages IESP 3/22/18 16 pages DOE

2. IESP 9/10/19 10 pages DOE

3 Prior Written Notice 10/22/19

4 pages DOE

4. Request for Reevaluation 9/10/19 2 pages DOE

5. OT Progress Report 3/26/19 2 pages DOE

6 Psychoeducational Evaluation Report 1/22/18

7 pages DOE

7. Medication Administration Form March 2018 2 pages DOE

8. Speech Language Therapy Report December 2017 7 pages DOE

9. Teacher Report December 2017 2 pages DOE

PARENT EXHIBITS

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

On September 17, 2019, I was appointed 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 student attending a public school and the New York City Department of Education (“DOE”) - District —_, regarding the student's special education program.

The Parent’s DPC request an “Order on Pendency” and a hearing on the same was held on June 17, 2019. Both sides then made oral arguments on the record concerning the issue of pendency. This order constitutes the undersigned’s order with regard to the same.

BACKGROUND

This case was initiated as the result of a written Due Process Complaint (“DPC”) filed by the student’s Parent’s advocate and received at the Department of Education Impartial Hearing Office (“DOE-IHO”) on or about September 8, 2019. (P-A) The DPC is carried under New York City (“NYC”) . 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) An increase of Special Education Teacher Support Services to (15)

periods per week; and (b) | Compensatory services for Special Education Teacher Support Services that should have been mandated for the 2018-2019 school year; and (c) An order to compel the DOE to fund these SETSS services at an enhanced rate, comparable with the market-rate for such services.

PARENT’S ARGUMENT FOR AN ORDER ON PENDENCY

The Parent argues that she made a motion on pendency pursuant to the student's then current IESP dated March 22, 2018 and the services mandated therein, which were two periods of SETSS per week, 2x30 minutes of speech and language therapy per week, 3x30 periods, (/egible) minutes of OT per week, as well as a paraprofessional. (T-8) On September 10, 2019, the DOE convened a new IESP meeting and using the Parent's own neurological evaluation report and teacher report, and increased the SETSS services to (8) periods per week, increased the speech and language therapy services to 3x30 minutes per week, kept the occupational therapy services in place, and terminated the Parent paraprofessional services. (Id.)

The Parent's position is that pendency lies within the September 10, 2019 IESP, as the last agreed-upon IESP, even though it was not in effect at the time of the filing.

(T-9) The Parent is in agreement with the increase to (8) periods of SETSS and the increase in speech, which that settles that part of his complaint and renders that portion of the complaint, where he request (15) hours is now moot. (T-12)

Additionally, the Parent further argues that he did not unilaterally place the student with a private provider, but instead, just hired the private provider to fill the need to provide the student with her mandated weekly services. (T-22)

DOE ARGUMENT AGAINST AN ORDER ON PENDENCY

The DOE argues that the Parents filed their DPC on September 8th, and at that time, the last agreed-upon and implemented program was the student’s the March 22, 2018 IESP. (T-13) A subsequent meeting was held on the 10th, but that program was not implemented and therefore, cannot serve as the basis for pendency. (Id.)

ORDER OF 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, likelinood 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 ati, 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, I find that the student is entitled to “pendency” for (8) hours of SETSS services per week, and all of the services the student is entitled to receive pursuant to her September 10, 2019 IESP, retroactive from the date the Parent filed his

DPC, throughout the entirety of the student's 10-month 2019-2020 school year that ended on June 26, 2020, as well as makeup hours for the DOE's failure to resolve pendency or provide pendency from the date the DPC was filed, at the rate of (8) hours per week going back to the beginning of the 10-month 2019-2020 school year. (T-24-5)

To accept the DOE’s position would ultimately result in the student not receiving services during the “pendency” of this matter, which in NYC can mean a loss of services for an extended period of time. The remedy, if any, for the DOE’s objection to an Order on Pendency 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 of Pendency” issued in this case, effectively renders the case on the merits moot.

FINAL ORDER - “MOOTNESS”

The Parent is in agreement with the student's September 10, 2019 IESP the increase to (8) periods of SETSS and the increase in speech, which is the basis of the “Order on Pendency” issued in this case, and which he states settles that part of his complaint and renders that portion of the complaint, where he request (15) hours is now moot. (T-12) The “Order on Pendency” also awards the Parent compensatory services for those services missed as the result of the DOE’s failure to recognize pendency. The Parent did not unilaterally place the student with a private provider, but instead, just hired the private provider to fill the need to provide the student with her mandated weekly services. (T-22)

Accordingly, I must note that in this case the Parent will now received under pendency all of the relief he 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 he 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 (2°° Cir. 2005), Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 (W.D.N.Y. 2008), J.N. v. Depew Union Free Sch. Dist., 2008 WL 4501940, at *3-*4 (W.D.N.Y. Sept. 30, 2008), see also, Chenier v. Richard W., 82 N.Y.2d 830, 832 (1993), Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714 (1980) and SRO No. 07-139)

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 (2TM 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 (2° Cir. 2001) and SRO No. 07-139)

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

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, | 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 (2" Cir. 2002)(ruling that the pendency provision formed a basis for awarding relief without addressing the merits of the parties’ dispute), Bd. of Educ. v. Schutz, 290 F.3d 476, 484 (2 Cir. 2002)(rejecting the district's argument that a dispute must be resolved on the merits rather than on the basis of the pendency provision), Patskin, 583 F. Supp. 2d at 428-29 (holding that the matter was moot where the school year at issue had passed, and stating that the relevant controversy was whether the IEP that the student was provided with was an appropriate placement and that there was no reasonable expectation that the student would be subjected to that particular IEP again), M.S. v.

New_York City Dep't of Educ., 734 F. Supp. 2d 271, 273, 278-80 (E.D.N.Y. Aug. 25, 2010)(dismissing the case as moot and noting that the parents were receiving full compensation for their private school expenditures and that the proceeding was brought to obtain legal fees), J.N., 2008 WL 4501940, at *3-*4 (upholding a SRO’s determination that the case was moot), Bd. of Educ. v. Steven L., 89 F.3d 464, 468-69 (7th Cir

1996)(holding that it was not necessary to determine which party would prevail on the merits when the stay put provision controlled for the duration of the dispute and the proposed public school IEP was no longer applicable to the student), see also New York City Dep't of Educ. v. $.S., 2010 WL 983719 (S.D.N.Y. Mar. 17, 2010))

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] 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 (2° Cir. 1982), Wagner v. Bd. of Educ., 335 F.3d 297, 301 (4" Cir. 2003), Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 (3 Cir. 1996), and if necessary, the speed with which parties may obtain State-level pendency placement reviews on an interlocutory basis under New York's regulatory scheme (see

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, | decline to find that the Parents’ claim for SETSS services at an enhanced rate 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 her 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 (2TM Cir. 2000)(examining the prongs of the Burlington/Carter test separately for each school year at issue), Snyder v. Montgomery County Pub. Schs., 2009 WL 3246579, *9-*10 (D.Md. Sept. 29, 2009), Omidian v. Bd. of Educ., 2009 WL 904077, at *21-*26 (N.D.N.Y. Mar. 31 2009)(analyzing each year of a multi-year tuition reimbursement claim separately), Student X_v. New York City Dep’t of Educ., 2008 WL 4890440, at *16 (E.D.N.Y. Oct. 30, 2008) and SRO Nos. 09-071 & 09-055) 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 Mayors 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., 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 render, the DOE shall either reimburse the Parent and/or directly pay the cost of the student's receipt of all of the services she is entitled to pursuant to her IESP dated September 10, 2019, (P-B), at a rate not to exceed the reasonable and fair market rate cost for such services in New York City, as well as (8) periods of SETSS services at the rate not to exceed $135 per hour, with all these services to be provided for the entirety of the student’s 10-month 2019-2020 school year, with any services missed to be compensated on a one-for-one basis; 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 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, I find that this matter is rendered “moot” and that it is unnecessary to 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 simultaneously with this final order.

DATED: September 1, 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 Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov. (Rev. 07/09/20)

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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.