New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION - DOE DEFAULT & INQUEST

Case Number: 188401

NYS Identifier Number N/A

Student’s Name: - To be Edited

and Removed by the NYC-DOE

Date of Birth: [“Confidential”]

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 06/2320

Actual Record Close Date: 11/27/20

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

[CONFIDENTIAL] DOE Representative DOE 06/23/20 (T)

[CONFIDENTIAL] Advocate PARENT 06/23/20 (T)

[CONFIDENTIAL] Mother PARENT 06/23/20 (T)

[CONFIDENTIAL] Agency Representative PARENT 06/23/20 (T)

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For # of Pages

DOE’S EXHIBITS

Number Document Date Number

of Pages

1 Email for 2018-2019 SEIT Rate 6/16/2020 1

***DOE exhibit “1” was objected to by the Parent and not formally received in evidence

(T-11)***

PARENT’S EXHIBITS

Exhibit: Document Description Date of Document Number of Pages

A Impartial Hearing Request 09/08/2019 8

B CSE IESP 02/20/2019 and 03/11/2019 14

C Call Log 08/26/2019 1

D Progress Report 02/14/2020 12

E Provider Affidavit 06/15/2020 1

F TURNING 5 Evaluations 02/08/2019-03/01/2019 4

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

On October 4, 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 and 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 Parents of a year old student attending a private school and the New York City - Department of Education (“DOE”) - District: , regarding the student’s special education program. I was appointed after the recusal of at least one other IHO. After having adjournments granted at the request of and with the consent of the parties, or for good cause, the impartial hearing was held on June 23, 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 through her advocate(s), [CONFIDENTIAL] and received at the Department of Education Impartial Hearing Office (“DOE-IHO”) on or about September 8, 2019. The DPC is carried under New York City (“NYC”) .

Therein, the Parent alleges that the DOE has failed to provide the student with a “free and appropriate public education” (“FAPE”) for the 2019-2020 school year. At the impartial hearing, the Parent seeks the following relief:

(a) An order compelling the DOE to provide the student with (8) hours of Special Education Teacher Support Services (SETSS) on a 1:1 basis within the classroom setting, as appropriate; and

(b) An order, providing the student with a full-time Paraprofessional; and

(c) An order compelling the DOE to arrange for the Related Services to be implemented for the entire school year.

At the hearing, The Parent requests an order of pendency based on an IEP dated February 20, 2019, providing for (2) hours of SEIT services per week, speech and language services, 2x30, one-for-one and OT services, 2x30, one-to-one. (T-4) The DOE does not disagree with the student's entitlement to pendency for the duration of the 2019-2020 school year but disagrees with the rate requested for the services as their records indicate that the student was receiving SEIT services under a lower rate than what is being requested. (T-11-2) As to the Parent’s request to increase the amount of SEIT services to (8) hours, the DOE is not in agreement with that request as there is no evaluation to support an increase in services other than a self-serving report from a provider. (T-12)

The Parent argues that along with her requested relief, she made a motion on pendency pursuant to her last agreed upon preschool IEP, mandating her son for (2)

hours of SEIT support per week, as well as the related services mandated therein and reached out to the DOE representative throughout the school year in November, December, February, and March but did not receive an email response from the DOE until March 6, 2020, wherein the agency stated that it would not be agreeing to the student's pendency program. (T-13) The Parent states that she contracted with a private provider when she made her motion for pendency. (T-17)

The Parent further argues that the DOE had every single opportunity to implement pendency with a provider at their own rate, whatever they felt was appropriate, but they did not do that. (T-21)

At the hearing, the Parent confirmed that the issue of “related services” had been resolved. (T-28-9)

THE DOE’S CASE

The DOE did not call any witnesses to testify on its behalf and attempted to submit

(1) document in evidence that was opposed by the Parent. (T-4-9,11, 26 & D-1) The DOE did not defend “FAPE” and did not challenge the presumption in the law that the Parent has cooperated with the agency. (Id.) In sum, substance and relevant part, the testamentary and documentary evidence for and against the DOE’s case is incorporated in the decision below.

THE PARENT’S CASE

The Parent called (2) witnesses to testify on her behalf, one who testified on direct testimony via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f]. (P-E) The DOE crossed examined both of the Parent’s witnesses. (T-43 & 60) The Parent also submitted (6)

documents in evidence. The DOE did not object to the Parent’s documentary submissions. (T-9-10) In sum, substance and relevant part, the testamentary and documentary evidence for and against the Parent’s case is incorporated in the decision below.

FINDINGS OF FACTS & DECISION - DEFAULT & INQUEST

IDEA ensures that students with disabilities are afforded a free and appropriate public education (“FAPE”). (20 U.S.C. § 1400 & Schaffer v. Weast, 126 S.Ct. 528 [2005]) A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a comprehensive written IEP. (20 U.S.C.

1401(8) & 141(d) and 34 C.F.R. § 300.13) The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. (Schaffer, 126 S.Ct. 528, 537)

The DOE may be required to reimburse Parents for their expenditures for private educational services obtained for a student, if 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. (Sch. Comm. Of Burlington v. Dept.

of Educ., 471 U.S. 359 (1985), Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2nd Cir. 2005])

The first step is to determine whether the DOE offered to provide the student a FAPE. (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2nd Cir. 2000]) A FAPE is offered to a student when (a) the DOE complies with procedural requirements set forth in IDEA and

(b) the IEP developed by the CSE through the procedures set forth in IDEA, is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. V. Rowley, 458 U.S. 176, 206-7 [1982]) The student’s recommended program must also be provided in the least restrictive environment (“LRE”). (20 U.S.C. § 1412(a)(5)(A), 34 C.F.R. § 300.550(b), 8 NYCRR §200.6(a)[1])

The Parent bears the burden of showing that the private school placement selected is appropriate. (SRO Nos.: 95-57, 94-29 & 93-34) The Parents must show that the private school placement offers an educational program that meets the student’s special education needs. (Burlington, 471 U.S. at 370 & SRO No. 94-20) The private school need not be approved by the state educational agency to provide instruction to children with disabilities. (Florence County School District Four et. al. v. Carter, 510 U.S. 7 [1993]).

It is also not required that the private school employ certified special education teachers or have its own IEP for the student. (SRO No. 94-20)

Finally, the IHO must consider whether equitable considerations favor the Parents' request for tuition reimbursement. State Review Officer (“SRO”) Decision 06-004 holds:

Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic

Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied tuition reimbursement u pon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v.

Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (Application of a Child with a Disability, Appeal No. 04-049).

In Burlington, the Court found that Congress intended retroactive reimbursement to Parents by school officials as an available remedy in a proper case under the IDEA.

(Burlington, 471 U.S. at 370-71, Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186 at 192 [2d Cir.

2005]) “Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance” had it offered the student a FAPE. (Burlington, 471 U.S. at 370-71, 20 U.S.C. § 1412[a][10][C][ii] and 34

C.F.R. § 300.148)

The DOE failed to call any witnesses to testify on its behalf, did not submit any documents in evidence, failed to file and serve an answer or serve a “Prior Written Notice” in this case, and did not even make an opening or a closing statement. (See 20 U.S.C.

1415(f)(3)(e) & T-16) “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, and 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])

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 proffer any evidence that it has offered the student a FAPE. (Supra) This amounts to a concession that the agency did not offer the student a FAPE. As previously noted, 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 provide a FAPE. (See 20 U.S.C. 1415(f)(3)[e])

It would be fundamentally unfair to allow either party 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)

However, here the DOE did not present a case-in-chief and did not controvert the documentary evidence submitted by the Parent. (Supra) The credibility of the documentary evidence was not rebutted by the agency and the documentary evidence is clearly relevant and material to the issues to be determined. I find the documentary and testamentary evidence submitted by the Parent in this case to be credible and uncontroverted in this case.

As noted above, the DOE’s failure to present a case at the hearing is a concession that it denied the student a FAPE and that if the Parent meets her burden under Schaffer

v. Weast, the Parent is entitled to the proven relief she seeks. 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) It is noted that 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.

The DOE has conceded liability by failing to present a case and meet its burden under the law. 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. The undersigned finds that the DOE failed to adhere to the requirements of the law, has denied the student in this case a FAPE for the 2019- 2020 school year and that the Parent may be entitled to the proven relief he has requested.

I now turn to the question of whether the DOE should be required to reimburse and/or pay for the private educational services and relief requested for the student, because the services offered by the DOE were inadequate or inappropriate, and the relief sought and 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)

Where sought as relief, a private school placement must be "proper under the Act."

(See Carter, 510 U.S. at 12, 15 and Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs. (See Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129 and Matrejek, 471 F. Supp.

2d at 419) A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (See Carter, 510 U.S. at 14) The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-

038; 02-014 and 01-105) Parents also need not show that the placement provides every special service necessary to maximize the student's potential. (See Frank G., 459 F.3d at 364-65) When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the

IDEA"])

There is no request for compensatory educational services in this case and in either case, an IHO cannot determine the amount of compensatory education that a student requires unless the record provides him with sufficient “insight about the precise types of education services the student needs to progress.” (Mary McLeod Bethune Day Acad. Pub.

Charter Sch., 555 F. Supp. 2d 130, 50 IDELR 134 [D.D.C. 2008] citing Branham v. District of Columbia, 427 F.3d 7, 44 IDELR 149 [D.C. Cir. 2005]) Pertinent findings to enable an IHO to tailor the ultimate award to the student’s unique needs should include the nature and severity of the student’s disability, the student’s specialized educational needs, the link between those needs and the services requested, and the student’s current educational abilities. (See Branham v. District of Columbia, 427 F.3d 7, 44 IDELR 149 [D.C. Cir. 2005], see also Mary McLeod Bethune Day Acad. Pub. Charter Sch., 555 F. Supp. 2d 130, 50 IDELR 134 [D.D.C. 2008]) The Parent has the burden of “propos[ing] a well-articulated plan that reflects the student’s current education abilities and needs and is supported by the record.” (See Phillips v. District of Columbia, 2010 WL 3563068, at *6, 55 IDELR 101 [D.D.C.

Sept. 13, 2010] quoting Friendship Edison Pub. Charter Sch. Collegiate Campus v. Nesbitt

(“Nesbitt II”), 583 F. Supp. 2d 169, 172, 51 IDELR 125 [D.D.C. 2008])

State regulations provide in relevant part that "[t]he decision of the impartial hearing officer shall be based solely upon the record of the proceeding before the impartial hearing officer and shall set forth the reasons and the factual basis for the determination. (See 8 NYCRR 200.5[j][5][v])

Shaffer decision of the Supreme Court of the United States issued on November 14, 2005, held as follows:

“We hold no more than we must to resolve the case at hand: The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. In this case, that party is Brian, as represented by his parents. But the rule applies with equal effect to school districts: If they seek to challenge an IEP, they will in turn bear the burden of persuasion before an ALJ.

The judgment of the United States Court of Appeals for the Fourth Circuit is, therefore affirmed.” (Supra, III, ¶2) (See Schaffer v. Weast, 546 U.S. 49, 58-

62 [2005] (emphasis added)

The party who defaults in concedes only liability and not the am ount of “damages.”

(See CPLR § 3215, First Nat. Bank & Trust Co. v. Classic Collateral Corp., 44 A.D.2d 868, 355 N.Y.S.2d 504 (1974), James v. Powell, 19 N.Y.2d 249, 279 N.Y.S.2d 10, 225 N.E.2d 741 (1967), McClelland v. Climax Hosiery Mills, 252 N.Y. 347, 169 N.E. 605 (1930)

The DOE’s default constitutes an admission of liability, but not of damages, which remains the Parent’s burden to prove. (See Fed. R. Civ. P. 55 & City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114 at 128 [2d Cir. 2011])

In sum, substance and relevant part, the testamentary and documentary evidence in this case indicates the following.

PARENT’ REQUEST FOR “PENDENCY”

Here, the parties agree upon “pendency” based upon on an IEP dated February 20, 2019, providing for (2) hours of SEIT services per week, speech and language services, 2x30, one-for-one and OT services, 2x30, one-to-one, except that the DOE disagrees with the rate requested for the services as their records indicate that the student was receiving SEIT services under a lower rate than what is being requested. (T-4 & 11-

2) The Parent asserts that she had no option other than to secure a private provider on her own because the DOE did not respond to her request for months and ultimately did not implement “pendency.” (T-13, 17 & 21)

The DOE’s default is a tacit concession that the student was denied a FAPE for the 2019-2020 school year. (Supra) There is no dispute between the parties that the student is entitled to the services and no basis in law or in fact for denying the Parent’s request for those services at an enhanced rate.

The Commissioner of Education has made it abundantly clear and has "repeatedly held that a board of education lacks authority to provide instructional services through an independent contractor. (See Appeal of Sweeney, 44 Ed Dept Rep 176. Decision No.

15,139, Appeal of Woodarek, 46 Ed Dept Rep 1, Decision No. 15,422) and this application of State law requiring that core instruction provided by a school district must be performed either by teachers who are employees of the district or pursuant to a contract for special education services that a district is specifically authorized by law to enter into has been upheld in the courts. (See Bd. of Co-op. Educ. Servs. For Second Supervisory Dist. of

Erie. Chautauqua & Cattaraugus Ctys. v. Univ. of State Educ. Dep't,, 40 A.D.3d 1349, 1350 [3d Dep't 2007] [noting that the relevant provisions of the Education Law did not provide for instruction by employees of for-profit corporations such as Kelly Services Inc.], see also Averback v. Bd. Of Educ. of New Paltz Cent. Sch. Dist., New Paltz, 147 A.D.2d 152, 154 [3d Dep't 1989] [explaining that" [a]bsent a 'plain and clear' prohibition in statute or decisional law, boards of education are empowered to agree to terms of employment" of a teacher]) (emphasis added)

Additionally, in a July 29, 2009 guidance document, the State also clarified that a school district does not have the authority "to provide core instructional services through contracts with nonprofit and other entities." ("Clarifying Information [R]elated to Contracts for Instruction," Office of Special Educ. Mem. [July 2009], available at http://www.p12.nysed.gov/resources/contractsforinstructionldocuments/contractsforinstr uction2009.pdf) In response to several questions from the field, the State issued further guidance ("Question and Answers related to Contracts for Instruction" Office of Special Education. Memorandum, dated [June 2010], available at http:/www .p

12.nysed.gov/resources/contractsforinstruction/documents/contractsforinstruction2010c ovennemo.pdf) The State explained the statutory instances in which school districts were authorized to contract for the instruction of students including Education Law § 305(33)

(for supplemental educational services, which section has since been repealed), Education Law § 3202(6) (students that are hospitalized or institutionalized), Education Law § 3602-e (approved prekindergarten programs), Education Law §§ 4401(2) and 4402(2)(b) (special education services with other school districts, BOCES, State-operated and State-supported schools, approved private schools and the State University at Binghamton which are approved by the Commissioner of Education), Education Law §

440 I (2)(n) (transition services for students with disabilities in programs such as vocational training programs approved by certain state agencies) ("Questions and Answers Related to Contracts for Instruction," Office of Special Education Memorandum dated. [June 2010], available at http://www.p12.nysed.gov/resources/contractsforinstruction/ga.html) Moreover, the district is required by State law to locate and assign the student's publicly provided teachers for a dually enrolled student. (See Educ Law § 3602- c[2][a])

Within this context, any notion of a public rate for independent SETSS instruction for this student that may be sanctioned in a policy of the NYC-DOE is flawed and cannot be reasonably relied upon by either party, because the district was not authorized to contract for the provision of an independent special education teacher. Furthermore, the available evidence in this matter shows that even if it was appropriate for the NYC-DOE to utilize this process, it did not result in the student receiving services. This appears to be another case where the NYC-DOE’s initial failure to provide SETSS has compelled a Parent to engage in self-help and undertake the untenable task of determining how much services mandated by the IEP should cost. This de facto delegation from the NYC-DOE to the Parent of the obligation to find a SETSS provider to implement the IESP at an acceptable rate is manifestly unreasonable because it is the NYC-DOE's responsibility to ensure that services are delivered, whether in accordance with an IESP, an IEP, or pursuant to the stay put rule, and cost is not a permissible reason to defer or avoid the obligation to implement a student's services. (See Educ. Law § 3602-c[2](a]; [7][a]-[b]

[providing that "[b]oards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts" arid that the cost for services is recoverable from the district of residence, either directly with the consent of the Parent for a district of location to share information or through the Commissioner of Education and the State

Comptroller])

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).

Here, there is no dispute that the student is entitled to “pendency” based on an IEP dated February 20, 2019, providing for (2) hours of SEIT services per week, speech and language services, 2x30, one-for-one and OT services, 2x30, one-to-one, although the rate to be paid for those services remains at issue. (T-4 & 11-2) Additionally, the Parent argues that the DOE had every single opportunity to implement pendency with a provider at their own rate, whatever they felt was appropriate, but they did not do that. (T-13, 17 & 21)

For the reasons stated above, I find that the student is entitled to pendency based upon the student’s IEP dated February 20, 2019.

UNILATERAL PLACEMENT

On May 18, 2020, the United States Court of Appeal for the 2nd Circuit, in Case Nos.: No. 19-1662-cv and 19-1813-cv, in deciding whether Parents who unilaterally enroll their child in a new private school and challenge the adequacy of the child’s IEP are entitled to public funding for the new school during the pendency of the IEP dispute, on the basis that the educational program being offered at the new school is substantially similar to the program that was last agreed upon by the Parents and the school district and was offered at the previous school, on a de novo review, held that such Parents are not entitled to public funding because it is the school district, not the Parents, who has the authority to decide how a child’s last agreed -upon educational program is to be provided at public expense during the pendency of the child’s IEP dispute.

The Court stated that the IDEA does not require the City to fund such a unilateral placement during the pendency of their IEP dispute and that Parents unilaterally place their children the Parents do so at their own financial risk.

The Court reaffirmed that the IDEA does not authorize a school district to recoup payments made for educational services pursuant to the stay put provision. The Court further stated that “then-current educational placement” in the stay-put provision typically refers to the child’s last agreed-upon educational program before the Parent requested a due process hearing to challenge the child’s IEP, and that under the IDEA, an initial placement is made by the school district upon the consent of the Parent, but a child’s educational placement (or program) may be changed if, for example, the school district and the Parents agree on what the new placement should be, or if an IHO or SRO finds the parents’ new placement to be appropriate by adjudicating the IEP dispute in the Parents’ favor, and the school district chooses not to appeal the decision. Accordingly, implicit in the concept of “educational placement” in the stay-put provision (i.e., a pendency placement) is the idea that the Parents and the school district must agree either expressly or as impliedly by law to a child’s educational program.

The Court further stated that the stay-put provision does not guarantee a child with a disability “the right to remain in the exact same school with the exact same service providers while his administrative and judicial proceedings are pending. Instead, it guarantees only the same general level and type of services that the . . . child was receiving.” It is the City, not the Parents, that is authorized to decide how (and where)

the Students’ pendency services are to be provided. The school district has a preexisting and independent authority to determine how to provide the most-recently-agreed-upon educational program. “[i]t is up to the school district,” not the Parent, “to decide how to provide that educational program [until the IEP dispute is resolved], so long as the decision is made in good faith.” (Citing T.M., 752 F.3d at 171 (citing Concerned Parents, 629 F.2d at 756)

The Court goes on to state that if a Parent disagrees with a school district’s decision on how to provide a child’s educational program, the Parent has at least three options under the IDEA: (1) The Parent can argue that the school district’s decision unilaterally modifies the student’s pendency placement and the parent could invoke the stay-put provision to prevent the school district from doing so; (2) The Parent can determine that the agreed-upon educational program would be better provided somewhere else and thus seek to persuade the school district to pay for the program’s new services on a pendency basis; or (3) The Parent can determine that the program would be better provided somewhere else, enroll the child in a new school, and then seek retroactive reimbursement from the school district after the IEP dispute is resolved. What the Parent cannot do is determine that the child’s pendency placement would be better provided somewhere else, enroll the child in a new school, and then invoke the stay-put provision to force the school district to pay for the new school’s services on a penden cy basis. To hold otherwise would turn the stay-put provision on its head, by effectively eliminating the school district’s authority to determine how pendency services should be provided.

However, the Court specifically did not consider, much less resolve, any question presented where the school providing the child’s pendency services is no longer available and the school district either refuses or fails to provide pendency services to the child.

Nevertheless, the Court noted that it makes sense that it is the party generally responsible for paying a student’s agreed-upon educational program - here, the City - who determines how the pendency services are to be provided. That is so for two reasons: (i) public funding for pendency services can never be recouped; and (ii) the cost of educational services in schools can vary dramatically.

Where the basis for “pendency” is stated to be the student’s “operative placement” at the time when the IEP proceedings were initiated, the Court held that argument fails for all of the reasons stated above. A Parent cannot unilaterally transfer his or her child and subsequently initiate an IEP dispute to argue that the new school’s services must be funded on a pendency basis. That argument effectively renders the stay-put provision meaningless by denying any interest of a school di strict in resolving how the student’s agreed-upon educational program must be provided and funded. The Court further noted that it bears recalling that the term “operative placement” has its origi n in cases where the school district attempts to move the child to a new school without the Parents’ consent, or where there is no previously implemented IEP so that the current placement provided by the school district is considered to be the pendency placement for purposes of the stay-put provision.

Here, the Second Circuit’s holding as cited above is not applicable, because in this case, the pendency services were either not available via the DOE and the agency either refused or failed to provide pendency services to the student. The Parent made a motion for pendency after filing the DPC and reached out to the DOE throughout the school year in November, December, February, and March but did not receive an email response from the DOE until March 6, 2020, wherein the agency stated that it would not be agreeing to the student's pendency program. (T-13) The DOE had the opportunity to implement pendency with a provider at their own rate, despite the fact that the agency is not supposed to contract out its mandate to provide the service but did not do so. (T-21 &

Supra) I do not find that the holding in the Second Circuit as cited above, is a bar to an award of “pendency” to the Parent, because she hired a private provider to provide the service.

SETSS SERVICE - “ENHANCED RATE”

SETSS are not defined in State or federal laws or regulations and are not identified on the State continuum of special education services. (See 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 bona fide financial obligation to pay the difference between the enhanced rate and the DOE rate. There was no written contract or evidence of a bona fide legal obligation on the part of the Parent to pay the enhanced rate. In his affidavit dated June 15, 2020, at the end of the 2019-2020 school year, the private provider stated the following:

I, [NAME], [NAME OF AGENCY, hereby verify that [NAME OF AGENCY] is currently providing Special Education Teacher Support Services ("SETSS")

for [STUDENT NAME] for school year 2019-2020 at a rate of $135 per Hour.

The breakdown of service is SETSS two periods per week. The SETSS services began on September 11, 2019 and will continue through June 30, 2020. The students' needs are being supported during the school closure and services continue to be in place. Services are currently being provided synchronously through distance instruction, teletherapy and telecommunication. Services follow the IEP goals, and work on these goals through activities and methodologies that are designed to promote progress towards the achievement of goals and objectives for the child. Attendance is being entered and maintained on the IEP Tracker website. SETSS Services will be billed for hours performed by our providers.

SETSS Services will be billed for hours performed by our providers. The total estimated number of periods of SETSS services to be provided for this student during the 19-20 School Year is 80 periods. The estimated total cost of the services is $10,800. (P-E - emphasis added)

The Parent testified that she did you sign a contract with the agency prior to beginning the services. (T-42) However, no such written contract was submitted in evidence.

“The fundamental basis of a valid, enforceable agreement or 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) An agreement and/or a contract is void if the content of the agreement or contract is unduly uncertain. (Id.) While “indefiniteness” in an agreement or 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.)

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

“affidavit” was drafted by the private agency. (P-E) Accordingly, the ambiguity as to whether a new payment schedule is required, or whether the entire balance under the agreement is due, would be held against the private provider, not the Parent, who as a consequence would escape any liability under any alleged 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, or where there is evidence that the private school 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. (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) While, there is no explicit evidence of collusion in this case, nevertheless,

I do not find that the Parent has met burden of production and persuasion with respect to whether she is legally obligated for the student's private agency payments.

There is no indication in the record that the private agency has taken any measures to collect its fees by way of invoices sent to the Parent, or by threatening and/or pursuing legal action against her for the fees allegedly owed. Under the circumstances, I find that the private agency’s alleged agreement really contemplates payment of the private agency’s 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 agency, not herself.

The private agency “contract”, if any, has not been submitted in evidence and as such is not just justifiably presumed as ambiguous and indefinite in its terms, it is non-existent. 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 at a private school, or procure private services, 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” en rollment 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 agency, or that the private agency has ever sought payment of the student's 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 an “enhanced rate” or prospective relief on behalf of the private agency.

The evidence contained in the hearing record supports a finding that it was the private agency, not the Parent, who incurred the financial burden associated with the student's SETSS 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 he has requested on behalf of the private school, 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 he 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)

I find that the Parent in this case is not entitled to direct and/or prospective funding at an “enhanced rate” for the private agency 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) Even if the Parent prevailed on the merits of her claim, it would be unclear at this juncture whether or not any relief would be warranted absent evidence that the provider was owed additional compensation based on an agreement with the Parent or the DOE.

MOOTNESS

The Parent testified that she does not believe that a full eight hours of SEIT is necessary for the student. (T-38) She is not requesting that the student receive (8) hours of SEIT services. (T-44) Additionally, the Parent confirmed that the issue of “related services” had been resolved. (T-28-9) Accordingly, the hearing remained limited to the Parent’s request for an Order on Pendency” which is granted below.

This “Order on Pendency” is retroactive from the date the Parents filed their DPC, September 8, 2019, throughout the entirety of the student’s 10-month 2019-2020 school year that ended on June 26, 2020. For the reasons stated below, I further find that the “Order on Pendency” issued in this case, effectively renders the case on the merits moot.

I also find that any objection to a finding of “mootness” because a finding on the merits is necessary to establish the student’s future rights, perhaps regarding “pendency”, is without merit. It is well established in the law that these cases are considered a “snapshot in time” limited to the school year at issue and the issues raised in the Parents’ DPC.

(See SRO No. 03-011, citing Roland M. v. The Concord School Committee, 910 F.2d.

983 at 922 [1st Cir. 1990]) Mere speculation as to what may happen in the future is not a proper concern in this matter. (See below)

Additionally, should the DOE appeal this decision, or refuse to make payments pursuant to this Order on Pendency, is a possibility that 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, 04-085 & 99-004), see also A.R. v. New York City Dep't of Educ., 407 F.3d 65, 78 n.13 (2nd Cir. 2005) (noting that IHOs have no enforcement mechanism of their own), SRO Nos.: 04-100 & 04-007 (recognizing that enforcement of prior orders of an IHO and/or a SRO are not properly determined by a

SRO), SRO No.: 03-071 (holding that petitioner's enforcement remedies include judicial enforcement pursuant to CPLR Article 78, an action in federal court, or VESID administrative complaint procedure), SRO No. 01-086 (holding that petitioner's enforcement request was not properly before a SRO; petitioner's remedy was to seek judicial enforcement of the IHO's tuition reimbursement award), SRO No. 99-4, (holding that respondent's remedy was to seek enforcement in state or federal court, citing

Blazejewski, 560 F. Supp. 701, A.T., 1998 WL 765371) and SRO Nos.: 06-044, 02-086, 04-006, 02-011 & 97-64)

The “Order on Pendency” entitles the Parents to payment of the student’s SETSS services, from the date the DPC was filed, September 8, 2019, to the date of this order, and an award of compensatory services based on equitable considerations will extended that entitlement to the actual beginning of the student’s 2019-2020 school year which covers the entirety of the student’s 10-month 2019-2020 school year at his.

Accordingly, I must note that in this case the Parent either has received or 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 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 his 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. Numerous SRO decisions have affirmed that an IHO is not required to make a determination that is academic or will have no actual impact upon the parties. (See SRO Nos. 11-085, 09-077, 09-065, 08-104, 08-044, 07-077, 06-044, 04-006, 02-086, 02-011 & 97-64)

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 8 NYCRR 279.10[d]) strongly diminishes the need to establish future pendency placements for future school years. Such determinations are better left until the proceedings under which the right arises are commenced and the issue of the student's pendency placement is actually in dispute.

Fourthly, the Court's comment that a decision on the merits in V.S. would be useful (2011 WL 3273922, at *10), raises a concern that the decision has the effect of removing the much needed discretion of administrative hearing officers to focus on both fairly and efficiently resolving disputes while retaining the discretion of how best to allocate their adjudicative resources to address ever growing dockets.

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

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

006) Thus, there is no barrier to an IHO deciding “pendency” in a future 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 assuredly capable of repetition and in either case would not evade review. While the Parent may elect to challenge the IEP developed for the 2020-2021 school year and seek tuition reimbursement or enhanced services for the student 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 again 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 upon the DOE’s DEFAULT and after INQUEST that the pursuant to the provision of the IDEA regarding “pendency”, upon its receipt of reasonably satisfactory proof of services having been rendered, the DOE shall honor this “Order on Pendency” based upon the student’s IEP dated February 20, 2019 and either reimburse the Parent and/or directly pay the cost of the student’s receipt of (2) hours of SEIT services per week, at the established DOE rate, and speech and language services, 2x30, one-for-one and OT services, 2x30, one- to-one, via the issuance of “RSAs” if the speech and language services or OT services have not been provided by the DOE (T-4), for the entirety of the student’s 2019-2020, including any days in the student’s 2019-2020 school prior to the filing of the DPC, for which the student did not receive services from the DOE or received services from the private SETSS provider, as an award of compensatory service based upon equitable considerations for the DOE’s failure to implement “pendency”; and it is further

ORDERED upon the DOE’s DEFAULT and after INQUEST that the DOE shall conduct evaluations of the student in all areas of his suspected disabilities, not evaluated within the last two years, for the 2021-2022 school year; and it is further

ORDERED upon the DOE’s DEFAULT and after INQUEST that the CSE shall forthwith reconvene to produce a new IEP for the student that considers all of the student’s available evaluations and any related information and produce a new IEP for the student’s 2021-2022 school year; and it is further

ORDERED upon the DOE’s DEFAULT and after INQUEST 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 upon the DOE’s DEFAULT and after INQUEST 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” identified herein.

DATED: December 3, 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)