New York City Department of Education, Impartial Hearing Decision

FINAL ORDER - PARENT’S MOTION FOR SUMMARY JUDGMENT

Case Number: 188526

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

Date of Birth: [“Confidential”]

District:

Hearing Requested By: Parent

Dates(s) of Motion: 09/24/20

Actual Record Close Date: 10/30/20

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

[CONFIDENTIAL] N/A DOE 10/05/20

[CONFIDENTIAL] Attorney PARENT 09/24/20

DOCUMENTATION ENTERED INTO RECORD

01. Number/Letter Title Dated For #of Pages DOE Response to MSJ 10/05/20 DOE Motion for Summary Judgment 09/24/20 PARENT 59 OO> Reply 10/05/20 PARENT 03 02 pages DOE

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

On September 18, 2019, I was appointed the Impartial Hearing Officer (“IHO”) to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act ( “IDEA”), 20 USC § 1415(f)(3), Article 89 of the New York State Education Law, Part 200 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973, concerning a dispute between the Parent of a ( ) year old student attending a private school and the New York City - Department of Education (“DOE”) - District: , regarding the student’s special education program. After having adjournments granted at the request of and with the consent of the parties, via email and with notice to the DOE, the Parent's attorney filed a “Motion for Summary Judgment” (“MSJ”) on September 24, 2020. (P-A) The DOE filed a one-page opposition to the Parent’s MSJ on October 5, 2020. (D-1) The Parent filed a one-page reply to the DOE’s opposition on October 5, 2020. (P-B) A list of the persons who appeared via the MSJ 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’s attorney(s), [CONFIDENTIAL] on or September 9, 2019 and carried under New York City (“NYC”) . The Parent herein alleges that the student was denied a “free and appropriate public education” (“FAPE”) for the 2019-2020 school year. At the impartial hearing, the Parent request the following relief: (a) An “Order on Pendency” based upon the student’s current agreed upon program (05/09/19), consisting of (6) periods per week of SETSS as well as the related services of Occupational Therapy 2 x 30 1:1 and Counseling 2 x 30 group and Speech Therapy 2 x 30 1:1; and (b) |The DOE to pay for an enhanced, comprehensive, clinically supported, individualized special education instructional program of (6) hours per week, through the provider of the Parents’ choice; and (c) |The DOE to issue RSAs to the Parents for the related services as they appear on the 05/19/2019 IESP; and (d) |The DOE to pay reasonable attorney fees.

On September 24, 2020, in sum, substance and relevant part, the Parents’ attorney(s) filed a MSJ stating the following:

On September 9, 2019, the Parents filed an Impartial Hearing Request seeking the final proposed relief of individual Special Education Teacher Support Services (“SETSS”) 6 periods per week; speech and language therapy, 2 times per week for 30 minutes per-session in a group setting; occupational therapy, 2 times per week for 30 minutes per-session in a one-to-one setting; and counseling, 2 times per week for 30 minutes persession in a group setting, from a provider of their choosing. Exhibit A. In addition, the Parents requested an interim order for a stay-put placement consisting of the same relief: SETSS” 6 periods per week; speech and language therapy, 2 times per week for 30 minutes per-session in a group setting; occupational therapy, 2 times per week for 30 minutes per-session in a one-to-one setting; and counseling, 2 times per week for 30 minutes per-session in a group setting. The Parents’ basis for pendency was the last agreed on Department of Education (“DOE”) Individualized Education Service Plan (“IESP”) created on May 9, 2019. Exhibit A, B.

Throughout the entirety of the 2019-2020 school year the Student received services from [CONFIDENTIAL] at the recommended frequency and duration of the May 2019 IESP, the same program the Parents requested as the basis for pendency and final relief in their Impartial Hearing Request. Exhibit A. By June 30, 2020, [PROVIDER’S NAME] provided the Student the entirety of their needed services for the 2019-2020 school year. Exhibit E. Throughout the 2019-2020 school year, no hearing for pendency was held due to the IHO’s policy on only holding hearings on the merits. Exhibit H.

Under the pendency provision of State and Federal Law, the Student is entitled to funding for these services as they constitute the last agreed upon placement. The passage of time has resulted in all the 2019-2020 services being provided by [PROVIDER’S NAME] under the last agreed upon placement, the basis for pendency.

This completion of the 2019-2020 school year, the Student’s receipt of services under the program from the last agreed upon placement, of the DOE’s legal obligation to fund the services, the basis for pendency, makes any defense to the Parents’ 2019-2020 claims completely moot. As a matter of law, the DOE must fund the requested final relief requested since it is the same as the interim relief requested, and thus summary judgment should be granted in favor of the Parents request for the Student to remain in his “then current placement” during the due process proceedings. (20 U.S.C § 1415]j]; Educ. Law § 4404 [4]; 34 CFR 300.518[a]; 8 NYCR 200.5[m]).

For a full recitation of the facts, please refer to the Affirmation of [CONFIDENTIAL], dated September 24, 2020, and the Affidavit of [CONFIDENTIAL] annexed hereto as Exhibit “F.” (P-A)

The Parents’ MJS erroneously asserts that it is the undersigned IHO’s policy not to conduct “pendency hearings.” It is actually a NYSED policy finally being enforced to place the NYC-DOE in compliance with the requirements of the law. In sum, substance and relevant part, the short history of “pendency” in New York City is summarized in the following email that all of the litigants in cases assigned to the undersigned are provided regarding “pendency:”

PLEASE COPY THE CASE MANAGER AND YOUR ADVERSARY ON

ALL EMAILS TO THIS OFFICE. EMAILS THAT FAIL TO COMPLY WITH

THIS REQUIREMENT WILL NOT BE CONSIDERED.

THE PARTIES ARE TO ADVISE WHAT IS THE NATURE OF THE

“PENDENCY DISPUTE.”

To the Parties: If there is a failure on the part of the agency to be responsive and address pendency. That should be brought to the attention of the NYC-DOE management and/or NYSED. The DOE must respond to the Parent’s request. If it disputes pendency, the DOE must tell the Parent why. Bringing the issue of the DOE’s failure to respond to the IHO does not resolve the problem, it only enables it going forward. The parties are to advise what the nature of the “pendency” dispute is to verify that it is a legitimate dispute.

PROVIDED FOR THE PARTIES’ INFORMATION

Since on or about the beginning of October of 2019, the undersigned had endorsed a_ significantly large number of the parties’ “pendency agreements” at their request as a courtesy. The undersigned has not billed for this service. The “endorsement” came with the following caveat:

“The above document was drafted by the parties as their agreement regarding “pendency.” The undersigned has not had any part in drafting the document, has not conducted a hearing, has not and does not issue any order, and does not make any findings of facts and/or decisions regarding the same. The document is endorsed by the undersigned solely at the request of the parties and returned to the same for their use as they deem necessary. Upon information and belief, it was understood at the time that despite the requirements of the law and the directive from NYSED in May of 2019, there was no NYCDOE administrator capable of and/or willing to endorse the document, so that the NYC-DOE would implement its own agreement.”

The endorsement made clear that the IHO had nothing to do with the parties’ agreement on pendency and that the undersigned was not issuing any orders or making any decision regarding the same. The endorsement had no legal or enforcement value.

The parties have been previously advised that NYSED’s May 2019 Compliance Assurance Plan for the New York City Department of Education required the NYC-DOE to change its procedures so that uncontested pendency obligations are implemented without the need for an interim hearing order on pendency. NYSED advised that the NYCDOE would not implement the change in its policy until May of 2020. That date has passed. I am informed that the ridiculousness of the parties’ requiring the above endorsement for the NYC-DOE to process its own agreement on pendency finally resulted at the end of 2019 of a change of policy and protocol at the NYC-DOE that no longer requires the endorsement.

Accordingly, if pendency is disputed, then _a_hearing will be immediately scheduled to resolve the dispute. If there is no dispute concerning “pendency” and parties have an agreement regarding the same, they are to memorialize their “pendency agreement” in a writing and have both sides sign the document. If the “implementation” unit insist on a “signature”, a NYC-DOE supervisor or administrator will be provide the same. It is important to note that the “Implementation Unit” is just another unit in the NYC-DOE. They do not have the authority to vitiate the parties’ agreement, any more than the CBST had the authority to remand cases back to the CSE, as they used to do in the past. The “Implementation Unit” must do what they are ordered to do by NYC-DOE supervisors and/or administrators. The parties should follow-up with NYC-DOE management if there is an issue having their agreement carried out, not with the IHO. (See A.R. v. New York City Dep't of Educ., 407 F.3d 65, 78 n.13 [2TM Cir. 2005], noting that IHOs have no enforcement mechanism of their own)

This process means that an “uncontested pendency hearing’ does not have to scheduled, which opens up the calendar for other matters that truly require a hearing to be conducted. As we all know, the daily calendar has hit as high as over (200) cases in a day and is regularly in the (100s).

A "hearing" on "pendency" is only necessary if there are facts being disputed that need to be determined through a hearing. If there is no dispute regarding what constitutes pendency, there is no need for a “hearing,” an “order” or IHO involvement. The old policy of requiring an “Order on Pendency on Consent,” “ordering” the agency to do what it “consented” to do concerning “pendency”, amounted to nothing more than a piece of paper that the NYC-DOE bureaucracy used to move itself into action. It is unnecessary. This year, there have been a little as (3) IHOs and at most (10) IHOs handling well over 10,000 cases per year in NYC, and with funding for these cases now exceedingly well over 300 million dollars per year. Recently, over 1,000 cases were filed in one week and the NYC-DOE office was open three Saturdays in a row in the effort to process all of those cases. The old NYC-DOE policy requiring a “pendency hearing” and an “Order on Pendency” in all instances, amounted to nothing more than a waste of public resources and public tax dollars.

Please understand that the severity of the situation in NYC requires we all adjust, work together and make changes to address the systemic problems we face. If pendency is “uncontested”, then DOE should go ahead and immediately administratively implement pendency, as it has done on many cases, specifically including on July 19, 2019 in another case assigned to the undersigned. The DOE has also administratively implemented pendency on many other cases before the undersigned in the past and does so regularly for certain IHOs. Doing so eliminates delays in servicing students or a break in their services. It also saves the DOE the $300 it pays the IHO to hold a “pendency hearing” and the $150 it pays to have the IHO write the “order.” In light of the number of cases being filed in NYC, and the fact that the NYC-DOE has run out of special education funding long before the end of the last two fiscal years, this amount to a significant amount of money and a waste of public tax dollars that is completely inappropriate. The lack of funding has resulted in Parents who have received awards, their providers, DOE vendors and IHOs not getting timely paid or not paid at all on some occasions for their services. Additionally, on occasion a number of “pendency hearings” are scheduled for the same day and the NYC-DOE is billed $450 for each “pendency hearing.” This is followed by a recusal from the hearing on the merits and writing a decision, which creates a tremendous problem and backlog in disposition of the NYC-DOE docket, compounded by the fact that there are so few IHOs taking cases in NYC.

“Pendency relief’ has been characterized by the Second Circuit as an “automatic injunction” that when invoked is to be immediately implemented by “operation of law” unless disputed, (see Zvi D., 694 F.2d at 906 (2d Cir. 1982). “Pendency” is to be provided without the need for a “hearing” and/or an “order,” to continue services for a student through the pendency of the “impartial hearing” process, and so that the student is not harmed by a break or a denial of services.

On October 5, 2020, the DOE submitted an email in opposition to the Parent's

MSF stating the following: The District opposes the parent's request for a finding based on summary judgment. There has been no hearing on the merits in this matter, and no question of fact has been resolved. Rather than summary judgment, the District requests that the IHO make an order on pendency and termination on mootness, including that pendency should be implemented for the 19

-20 school year. (D-1)

On October 5, 2020, the Parent submitted the following “reply” via email: “The parent has no response and rests on their smj motion.”

FINAL ORDER

The Parents’ DPC having been duly filed pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 USC § 1415(f)(3), Article 89 of the New York State Education Law, Part 200 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973; and Notice having been duly given to the DOE; and The Parents having filed a MSJ on notice to the DOE, before this IHO on September 24, 2020, and the DOE having not responded to said motion, and this decision/order being made on the basis of the submission of testamentary and documentary evidence pursuant to 8 NYCRR 200.5{j][3][xii][f], to which the DOE has responded, stating that an “Order on Pendency” should be issued rendering the case moot, thus waiving its right to challenge the DOE’s affiants via cross examination; and Whereas the Parents appeared via their attorney(s), [“Confidential”] assigned and the DOE via its representative {“Confidential’]; and Whereas there is no dispute as to what constitutes “pendency”, thus rendering a hearing on “pendency” and a hearing on the merits moot, and a proposed “Final Order” being based upon the Parent’s uncontroverted testamentary and documentary submissions; and Whereas under the IDEA, the burden of persuasion in an administrative hearing is placed upon the party seeking relief. (See Schaffer v. Weast, 546 U.S. at 59-62) On August 15, 2007, the New York State Legislature amended the Education Law to place the burden of proof upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement would continue to have the burden of proof regarding the appropriateness of such placement. (See Educ. Law

§ 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended statute took effect for impartial hearings commenced on or after October 14, 2007. (SRO No. 08-016); and Whereas the DOE having failed to submit any testamentary or documentary evidence to meet it burden under the law and establish “pendency”, or refute the Parent’s assertion of what constitutes “pendency”; and Whereas to demonstrate the appropriateness of the relief sought, the Parent need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of the student, supported by such services as are necessary to permit the student to benefit from instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65); and Whereas in the absence of evidence demonstrating that the Parent has 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 the relief sought by the Parent, including but not limited to tuition reimbursement. (SRO No. 04-049); and Whereas there being nothing in the record consisting solely of the Parent’s submissions that sustains a finding that the Parent has not cooperated with the CSE; and Whereas the Parent has submitted the testimony of (2) witnesses on direct examination via affidavits pursuant to 8 NYCRR 200.5/j][3][xii][f], and the DOE having failed to contest that testimony and/or cross examine the Parents’ witnesses; and Whereas the Parents’ submissions are completely and unequivocally uncontroverted and need not be repeated herein as they are annexed hereto for the benefit of the reader; and Whereas the DOE has failed to meet its burden under the law and the Parents’ submission clearly reflects that the relief sought meets the unique needs of the student, supported by such services as are necessary that permits the student to benefit from that relief. (Gagliardo & Frank G., supra); and Whereas there is no evidence that the Parent has not cooperated with the DOE; and Whereas this IHO having determined that the Parents’ request for and consent to the manner of determining this “Final Order’ was made knowingly, intelligently and voluntarily; and Whereas the Parent’s testamentary and documentary evidence, oral arguments, discussions, concessions and this order being herewith recorded; and

PARENTS’ RIGHT TO SUMMARY JUDGMENT

Whereas Federal Civ. P. Rule 56 allows a party to seek a judgment before trial on the grounds that all facts relevant to a claim(s) or defense(s) are undisputed and that those facts entitle the party to the judgment sought. (See Vt. Teddy Bear, 373 F.3d at 244); and Whereas a statement of facts deemed by the moving party to be undisputed must be submitted by that party for each such fact. (See Fed. R. Civ. P. 17 56[c]); and Whereas such a statement must reference admissible evidence (when presented at trial in the form of testimony or other permissible method) in the record tending to prove each such fact, e.g., deposition testimony, admissions, answers to interrogatories, affidavits. (See 22 Fed. R. Civ. P. 56(c)(2) [nonmovant may object that cited material is inadmissible]; D. Conn. Local R. 56(a)(3) [specific citation to evidence must be to “the affidavit of a witness competent to testify as to the facts at trial” or to “evidence that would be admissible at trial]; Raskin v. Wyatt Co., 125 3 F.3d 55, 66 [2TM Cir. 1997] [ “only admissible evidence need be considered by the trial court in ruling on a motion for summary judgment,” and the Federal Rules of Evidence govern such 6 admissibility); and Whereas he non-moving party need not respond to the motion. However, a non-response runs the risk of unresponded to statements of undisputed facts proffered by the movant being deemed admitted. (See Fed. R. Civ. P. 56(e)(2); see, e.g., Jones v. Lamont, No. 05 Civ. 8126, 2008 WL 2152130, at *1 (S.D.N.Y. 2008) [“/n view of[pro se] plaintiffs failure to respond to the motion, the well supported factual allegations set forth in defendants’ Rule 56.1 statement are deemed admitted.”], aff'd, 14 379 Fed. App’x 58 [2 Cir. 2010]); and Whereas a non-response does not risk a default judgment. (See Vt. Teddy Bear, 373 F.3d at 246 [contrasting Rule 55 default 17 with summary judgment requirements]) Before summary judgment may be entered, the court must ensure that each statement of material fact is supported by record evidence sufficient to satisfy the movant’s burden of production even if the statement is unopposed. (Id. at 244) [district court must examine an unopposed motion for summary judgment “to determine if it has met its burden of demonstrating that no material issue of fact remains for trial’ and that “the citation to evidence in the record supports the [unopposed] assertion” (internal quotations omitted]) In doing so, the court may rely on other evidence in the record even if uncited. (See Fed. R. Civ. P. 56(c)[3]); and Whereas, of course, the court must determine whether the legal theory of the motion is sound. Thus, Rule 56 does not allow district courts to automatically grant summary judgment on a claim simply because the summary judgment motion, or relevant part, is unopposed; and Whereas however, a partial response arguing that summary judgment should be denied as to some claims while not mentioning others may be deemed an abandonment of the unmentioned claims; and Whereas although the use of summary disposition procedures akin to those used in judicial proceedings are permissible under the IDEA, they should be used with caution and are appropriate in instances in which the parties have had a meaningful opportunity to present evidence and the non-moving party is unable to identify any genuine issue of material fact. (See J.D., 224 F.3d at 69 and SRO Nos.: 10-014, 05-007 04-059 & 04-018); and Whereas the IDEA does not expressly provide for any type of motion practice, given the broad authority granted hearing officers to manage the process and they have the authority to entertain and determine motions. (See Dist City 1 & Dist City 2 Pub. Sch., 24 IDELR 1081 [SEA MN 1996]) Nothing in the law precludes an |.H.O. from considering a motion by either party under appropriate circumstances. (See S.R.O. Nos. 96-45, 05-007 [motion for a directed verdict|, 04-061 [motion to identify the issues], 04-046 [motion for recusal], 04-018 [recognizing motion for summary judgment could be used in IDEA proceedings in certain circumstances if there is a lack of any genuine issue of material fact and both sides have had an opportunity to present evidence]); and

PARENTS’ REQUEST FOR “PENDENCY”’

Whereas 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); and Whereas “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]); and Whereas 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]); and Whereas 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); and Whereas 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); and Whereas 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]); and Whereas, 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]); and Whereas 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); and Whereas 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); and Whereas on May 18, 2020, the United States Court of Appeal for the 2" 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; and Whereas 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; and Whereas 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; and Whereas 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; and Whereas, 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; and Whereas 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); and Whereas 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 pendency 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; and Whereas, 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; and Whereas, 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; and Whereas, 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 because that argument effectively renders the stay-put provision meaningless by denying any interest of a school district in resolving how the student's agreed-upon educational program must be provided and funded; and Whereas the Court further noted that it bears recalling that the term “operative placement” has its origin 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; and Whereas 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]); and Whereas 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); and Whereas 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); and Whereas 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); and Whereas in the case at bar, there is no dispute that an “Order on Pendency” based upon the student's last agreed-upon program dated May 9, 2019, consisting of (6) periods per week of SETSS as well as the related services of Occupational Therapy 2 x 30 1:1 and Counseling 2 x 30 group and Speech Therapy 2 x 30 1:1, is appropriate and would render a hearing on the merits in this case moot; and Whereas an award of “pendency” on behalf of the Parents is retroactive from the date the Parents filed their DPC, September 9, 2019, throughout the entirety of the student's 10-month 2019-2020 school year that ended on June 26, 2020; and Whereas the remedy, in part and in addition to an appeal filed the with SRO or in federal district court, 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; and Whereas, however, for the reasons stated below this is no longer possible because the “Order on pendency” issued in this case, effectively renders the case on the merits moot; and Whereas if, the DOE has yet to make the payments, or refuses to make such payments pursuant to “pendency”, IHOs do not have enforcement powers and 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[I], 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 (2° 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 [HO's tuition reimbursement award), SRO No. 99-4, (holding that respondent's remedy was to seek enforcement in state or federal court, citing Blazejewski, 560 F. Supp. 701, A.T., 1998 WL 765371) and SRO Nos.: 06-044, 02-086, 04-006, 02-011 & 97-64); and

ORDER ON PENDENCY RENDERS THE CASE “MOOT”

Whereas this “Order on Pendency” entitles the Parents to payment of the student’s tuition, related cost, from the date the DPC was filed, September 9, 2019, to the date of this order, which covers the entirety of the student's 10-month 2019-2020 school year at the private school, which ended on June 26, 2020; and Whereas, accordingly, I must note that in this case the Parents will now receive under pendency all of the relief they 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; and Whereas this raises the question of whether the instant matter has been rendered moot by the passage of time; and Whereas upon careful consideration of the evidence in the hearing record I find that regardless of the merits of a decision concerning whether the DOE offered the student a FAPE for the 2019-2020 school year, no further meaningful relief may be granted to the Parents because they will receive all of the modified relief sought pursuant to “pendency”, and thus, the Parents’ 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 and Whereas the dispute between the parties must at all stages be “real and live,” and not “academic,” or it risks becoming moot. (See Lillbask v. State of Conn. Dep’t of Educ., 397 F.3d 77, 84-85 (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); and Whereas, in general, cases dealing with issues such as desired changes in IEPs, specific placements, and implementation disputes may become moot at the end of the school year because no meaningful relief can be granted. (See, e.g., SRO Nos. 06-044, 05-058, 04-027, 00-037, 00-016 & 96-37); and Whereas administrative decisions rendered in cases concerning such issues arising out of school years that have since expired may no longer appropriately address the current needs of the student. (See Daniel R.R. v. El Paso Indep. Sch. Dist., 874 F.2d 1036, 1040 (5th Cir. 1989) and SRO Nos. 07-139, 07-028, 06-070 & 04-007); and Whereas an exception provides that a claim may not be moot despite the end of a school year for which the student’s IEP was written, if the conduct complained of is “capable of repetition, yet evading review.” (See Honig v. Doe, 484 U.S. 305, 318-23 (1988), Lillbask, 397 F.3d at 84-85, Daniel R.R., 874 F.2d at 1040 and SRO No. 04-038); and Whereas the exception applies only in limited situations (see City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983) and is severely circumscribed. (See Knaust v. City of Kingston, 157 F.3d 86, 88 (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); and Whereas to create a reasonable expectation of recurrence, repetition must be more than theoretically possible. (See Murphy, 455 U.S. at 482, Russman v. Bd. Of Educ., 260 F.3d 114, 120 (2TM Cir. 2001) and SRO No. 07-139); and Whereas mere speculation that the parties will be involved in a dispute over the same issue does not rise to the level of a reasonable expectation or demonstrated probability of recurrence. (See Russman, 260 F.3d at 120 and SRO No. 07-139)

“Mootness” may be raised at any stage of litigation. (In re Kurtzman, 194 F.3d 54, 58 (2° Cir. 1999) and SRO No. 07-139); and Whereas in this case, there is no longer any live controversy relating to the parties’ dispute over the services offered by the DOE for the 2019-2020 school year because, even if a determination on the merits demonstrated that the DOE did not offer the student a FAPE for the 2019-2020 school year, in this instance, it would have no actual effect on the parties because the 2019-2020 school year expired on June 26, 2020, and the student remained entitled to his pendency placement funded by the DOE through the conclusion of the administrative due process; and Whereas, accordingly, the Parent's claims for the 2019-2020 school year need not be further addressed here because an IHO is not required to make a determination that is academic or will have no actual impact upon the parties. (See SRO Nos. 11-085, 09-077, 09-065, 08-104, 08-044, 07-077, 06-044, 04-006, 02-086, 02-011 & 97-64); and Whereas, concerning the District Court’s decision in V.S. (2011 WL 3273922), the court in that case held that in SRO No. 10-041, the SRO correctly determined that the Parents’ request for funding for the school year that was the subject of that appeal was no longer at issue where the student was educated at public expense at a private school chosen by the Parents for the duration of the school year pursuant to a pendency order. (See V.S., 2011 WL 3273922, at *9) 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; and Whereas 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 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 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, as noted above, 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; and Whereas, for the forgoing reasons, | decline to find that the Parents’ claim for the 2019-2020 school year continues to be a live controversy because I find that the matter has been rendered moot by the passage of time; and Whereas the exception to the mootness doctrine does not apply in this case because the matter is not capable of repetition and would not evade review. While the Parents may elect to challenge the IEP developed for the 2020-2021 school year and seek tuition reimbursement or enhanced services for the student at his private school for the 2020-2021 school year in a subsequent due process proceeding, the issues presented in such a claim could be different as the services recommended for the 2019-2020 school year. What’s more, each year the elements of a tuition reimbursement or enhanced services claim must be analyzed separately. (See Mrs. C. v. Voluntown Bd.

of Educ., 226 F.3d 60, 67 (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); and Whereas, additionally, the Mayor's new policy announced on June 24, 2014, was implemented September 1, 2014 and includes the following changes in New York City:

« Expedite Decisions: Where settlement is appropriate, DOE will seek settlement within (15) days of receiving notice of parent intent to unilaterally place their child in a school.

« Reduce Extended Legal Battles: The DOE will refrain from re-litigating settled or decided cases, unless there is a change in the IEP placement recommendation. The DOE will avoid unnecessary litigation in cases where the agency is unable to offer a placement, or when a child is about to enter the final grade of a school.

* Reduce Paperwork: Instead of requiring parents to submit full documentation every year, the DOE will only require that paperwork every three years, allowing for income eligibility updates to be made each year, as needed. « Expedite Payments: DOE will make tuition payments on a monthly basis when required by a program, and it will provide a payment schedule to parents following any settlement. Once parents win a claim for tuition reimbursement, the DOE will pay the tuition while the DOE appeals that decision to a higher level of review; and Whereas these changes make it even more less than likely that this matter is capable of repetition that may evade review; and Whereas the Parents’ request for an “Order on Pendency” and their MSJ is in fact unopposed and the 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]); and Whereas the completely uncontroverted testamentary and documentary evidence submitted by the Parents need not be repeated here as it is annexed hereto for the benefit of the reader.

Now, therefore, it is hereby

ORDERED that the Parents’ MSJ is granted in its entirety; and it is further

ORDERED that pursuant to the “pendency” provision of the law, upon the DOE’s receipt of reasonably satisfactory proof of said services having been rendered, the DOE shall either reimburse the Parent and/or directly pay the cost of the student’s receipt of (6) periods per week of SETSS services, at a rate not to exceed the reasonable and fair market rate cost for such services in New York City, as well as RSA’s for the related services of Occupational Therapy 2 x 30 1:1 and Counseling 2 x 30 group and Speech Therapy 2 x 30 1:1, based upon the student’s IESP dated May 9, 2019, and for the entirety of the student’s 2019-2020 school year; and it is further

ORDERED that a copy of the student’s IESP dated May 9, 2019 shall accompany this decision and order for reference; and it is further

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

ORDERED that any of the other relief sought by the Parent not addressed by this “Final Order’ is found to be either resolved by the parties, withdrawn by the Parent, outside the scope of the IHO’s authority, unsupported by the record, or rendered moot by the “Order on Pendency” and granting of the Parents’ MSJ as stated herein.”

DATED: November 2, 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)