New York City Department of Education, Impartial Hearing Decision

FINAL ORDER - “PENDENCY” & “MOOTNESS”

Case Number: 189491

NYS Identifier Number

Student’s Name: - To be Edited &

Removed by NYC-DOE

Date of Birth:

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 06/24/20

Actual Record Close Date: 11/13/20

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date DOE Representative DOE 06/24/20 (T) Attorney PARENT 06/24/20 (T) Attorney PARENT 06/24/20 (T)

Mother PARENT 06/24/20 (T)

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For # of Pages

DOE’S EXHIBITS -

1 6-22-18 IESP 10

2 9-4-18 P-4 2

3 9-26-18 RSA 2

DOE’S EXHIBITS - CASE #

1 10-29-18 IESP 10

2 Undated P-4 2

3 11-13-18 DPC 179419 4

PARENT’S EXHIBITS - CASE #

A 09/20/2019 Impartial Hearing Request 3

B 10/29/2018 IESP 10

C 04/26/2019

D 05/28/2020 Teacher Progress Report 3

E 06/09/2020 Affidavit of Services Provided 1

F 06/17/2020 Testimonial Affidavit of 3

G 06/16/2020 Testimonial Affidavit of 3

H 06/16/2020 Testimonial Affidavit of 2

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

On September 27, 20019, 2019, I was appointed to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 USC § 1415(f)(3), Article 89 of the New York State Education Law, Part 200 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973, regarding a dispute between the Parents of a year student attending a private school and the New York City Department of Education (“DOE”) - , regarding the student’s special education program.

The Parent’s DPC request an “Order on Pendency.” and a hearing on the same was held on June 24, 2020. Both sides then made oral arguments on the record concerning the issue of pendency.

This case number 189491, is almost identical in terms of the arguments and the facts, even some of the relief sought and debate concerning the relative IESPs, in that case number 189491, is the brother and twin of case number , with both cases brought against , and the same DOE representative and attorneys represent the same litigants in both cases, where both students are years old; both bring claims for the 2019-2020 school year, both have asserted their right to pendency; and in both cases, they are looking for the implementation of SETSS services and related services, although the amount in this case is SETSS services at (15) hours per week; speech and language services, 2x30, one-to-one; OT, 2x30, one-to-one; and PT, 2x30, one-to-6 one, and in the other case, the request is for SETSS services, (10) hours at an enhanced rate, and speech and language, 2x30, one-to-one. (T-3-4)

The transcripts in both cases are ordered to be incorporated in both cases, so that the transcripts in case number is to accompany this one, in case number 189491. (T-4) One transcript cannot be read one without reading the other, and each case will include all of the arguments that are relative to each case. (T-4-5) Both of these case were filed on the same day, September 20, 2019. (C# , T-4)

BACKGROUND

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

filed by the student’s Parent’s attorney(s), and received at the Department of Education Impartial Hearing Office (“DOE-IHO”) on or about September 20, 2019. The DPC is carried under New York City (“NYC”) . The

Parents allege that the student was denied a “free and appropriate public education” ( “FAPE”) for the 2019-2020 school year. At the impartial hearing, the Parents seeks the following relief:

(a) Provision of (15) hour-long periods, per week, of 1:1 SETSS and continued provision of Speech-Language Therapy (2x30, 1:1), Occupational Therapy (2x30, 1:1), and Physical Therapy (2x30, 1:1) with a finding that the DOE violated the student’s right to a FAPE.

PARENT’S ARGUMENT FOR AN ORDER ON PENDENCY

The Parent argues that pendency can be a smorgasbord of materials and that it is not limited to one specific document. (C# , T-12-3) The findings of fact and decisions for both of the students’ case, in which they allege a basis for SETSS services under pendency, are absent of any language for related services because they were not at issue, and the students had been receiving those related services throughout the 2018-2019 school year and should be entitled to those services here as well.

(C# , T-13)

DOE ARGUMENT AGAINST AN ORDER ON PENDENCY

The DOE objects to the Parent’s use of (2) documents to establish pendency the IESP of June 22, 2018, and the un-appealed finding of fact and decision being used together and argues that that un-appealed finding of fact and decision standing alone, is the single basis for pendency, which the DOE does not object to. (C# , T-8-9)

The DOE concedes that the findings of fact and decision referenced ordered that the IESP referenced be implemented. (C# , T-9-10) The DOE does not dispute that the student was receiving the services requested at the time that the Parent invoked her right to pendency. (C# , T-11-2)

ORDER REGARDING THE PARTIES’ “PENDENCY AGREEMENT”

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).

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 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.

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 district 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 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.

In the case at bar, the student was not “unilaterally” placed for the 2019-2020 school year. He had been receiving the service sought since the 2018-2019 school year. Additionally, the issue of whether the student’s private services are ultimately appropriate or inappropriate for the student, is not one that I find the law as cited above, requires be determined for the purposes of “pendency.” If it is ultimately found to be inappropriate, the fault lies with the Parents who placed the student at his private services, and not the DOE. Finally, it is unquestionable that the student’s current private services constituted his “operative placement” at the time that the Parents in this case invoked their right to pendency in the DPC. (Supra)

The student received the service sought during the 2018-2019 school year.

(Supra) Accordingly, I find that the student’s current private services are “substantially similar” to the student’s previous private services. Additionally, I find that the Parents are entitled to an “order on Pendency” recognizing the student’s current private services as the student’s “pendency” placement in this case.

This “Order on Pendency” is retroactive from the date the Parents filed their DPC, September 20, 2019, throughout the entirety of the student’s 10-month 2019-2020 school year that ended on June 26, 2020. I find that the DOE’s position in this case was totally without merit. Because of the DOE’s unreasonable delay in delaying the implementation of pendency, I award the Parent the same services, in the same amounts as indicated below, as compensatory and/or makeup services, retroactive to the first day of the student’s 10-month 2019-2020 school year.

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 there be an appeal of this decision, or should the DOE 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)

FINAL ORDER - “MOOTNESS”

The “Order on Pendency” entitles the Parents to payment of the student’s private services, from the beginning of the student’s 10-month 2019-2020 school year, to the date of this order, which covers the entirety of the student’s 10-month 2019-2020 school year at her current private school.

Accordingly, I must note that in this case the Parents will now received 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. 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 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.

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 10- month 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

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 readily capable of repetition and in such a case, if any, the case would not evade review. While the Parents may elect to challenge the IEP developed for the 2020-2021 school year and seek tuition reimbursement or enhanced services for the student at his private school for the 2020- 2021 school year in a subsequent due process proceeding, the issues presented in such a claim could be different as the services recommended for the 2019-2020 school year. What’s more, each year the elements of a tuition reimbursement or enhanced services claim must be analyzed separately. (See Mrs. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 67 (2nd Cir. 2000)(examining the prongs of the Burlington/Carter test separately for each school year at issue), Snyder v. Montgomery County Pub. Schs., 2009 WL 3246579, *9-*10 (D.Md. Sept. 29, 2009), Omidian v. Bd. of Educ., 2009 WL 904077, at *21-*26 (N.D.N.Y. Mar. 31 2009)(analyzing each year of a multi-year tuition reimbursement claim separately), Student X v. New York City Dep’t of Educ., 2008 WL 4890440, at *16 (E.D.N.Y. Oct. 30, 2008) and SRO Nos. 09-071 & 09-055) Accordingly, the exception to the mootness doctrine does not apply here as I do not find this matter to be capable of repetition yet evading review. (See Honig, 484 U.S. at 318-23, Lillbask, 397 F.3d at 84-85, Daniel R.R., 874 F.2d at 1040 and SRO 04-038)

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

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

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

* Reduce Paperwork: Instead of requiring parents to submit full documentation every year, the DOE will only require that paperwork every three years, allowing for income eligibility updates to be made each year, as needed.

* Expedite Payments: DOE will make tuition payments on a monthly basis when required by a program, and it will provide a payment schedule to parents following any settlement. Once parents win a claim for tuition reimbursement, the DOE will pay the tuition while the DOE appeals that decision to a higher level of review.

These changes make it even more less than likely that this matter is capable of repetition that may evade review. (Supra) It is also important to note that there is case law that prohibits the DOE from recouping payments made pursuant to pendency. (See New York City Dep’t of Educ. v. S.S., 2010 WL 983719, at *11 [S.D.N.Y. Mar. 17, 2010])

NOW therefore, it is hereby

ORDERED that 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 either reimburse the Parents and/or directly pay the cost of the student’s receipt of (15) hour-long periods, per week, of 1:1 SETSS and continued provision of Speech-Language Therapy (2x30, 1:1), Occupational Therapy (2x30, 1:1), and Physical Therapy (2x30, 1:1), for the entirety of the student’s 10-month 2019-2020 school year, as well as those same services in the amount indicated, as an award of compensatory service on the grounds of equitable considerations, for any of the services the student missed as a result of the DOE’s failure to timely implement “pendency”, and that the cost for these services shall not exceed the reasonable and fair market rate cost for such services in New York City; 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 the 2021-2022 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 2021-2022 school year; and it is further

ORDERED that in light of the determinations herein, I find that this matter is rendered “moot” and that it is unnecessary to address the merits of the parties’ contentions herein.

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

DATED: November 21, 2020 _______________________

New York, New York Edgar De Leon - IHO

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the PublicSchool District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

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

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

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Footnotes

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