New York City Department of Education, Impartial Hearing Decision

FINAL ORDER - DOE DEFAULT - “NO APPEARANCE” - “PENDENCY &

MOOTNESS”

Case Number: 189712

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

Date of Birth:

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 05/21/20

Actual Record Close Date: 09/25/20

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

“No Appearance” N/A DOE 05/21/20 (T) Attorney PARENT 05/21/20 (T)

Mother PARENT 05/21/20 (T)

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For #of Pages

N/A N/A N/A DOE N/A

PARENT EXHIBITS

09/25/2019 Due Process Request

01/22/2018 IESP

OD0W

14

04/22/2020 Affidavit regarding SETSS

08/27/2019 List of calls to providers m Various List of SETSS provider's certificates

09/01/2019 Parent Contract with 09/02/2019 Parent Contract with 05/14/2020 Affidavit regarding paraprofessional services

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

On October 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 ofa(_) year old student attending a private school and the New York City - Department of Education (“DOE”) - District: _, regarding the student’s special education program. I was appointed after the recusal of at least one other IHO. After having adjournments granted at the request of and with the consent of the parties, or for good cause, the impartial hearing was held on May 21, 2020. A list of the persons who appeared at the hearing and the documents entered into evidence is annexed hereto.

BACKGROUND

This case was initiated as the result of a written Due Process Complaint (“DPC”) filed by the student’s Parent via her advocate(s), the and received at the Department of Education Impartial Hearing Office (“DOE-IHO”) on or about September 25, 2019. The DPC is carried under New York City (“NYC”)

189712. 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) | Scheduling a pendency hearing and impartial hearing and issue an order for the student awarding (i) at least (8) periods per week of bilingual SETSS; and (ii) a full-time, daily paraprofessional, each at an enhanced rate and each for the entire 2019-2020 school year; and (b) Allowance of funding for payment to (i) the student’s special education teacher services provider/agency for the provision of at least (8) periods per week of bilingual SETSS and (ii) the student’s paraprofessional for the provision of full-time daily services, each at an enhanced rate and each for the entire 2019-2020 school year; and (c) Awarding all related services on the IESP and related services authorizations for such services if required by the parent; and (d) | Such other and further relief as is appropriate.

DOE DEFAULT - “FAILURE TO APPEAR”

The Parent having appeared with her attorney(s), , attorney assigned and the DOE having failed to appear at the hearing (T-5-32); and The Parents thus to agreeing to conduct an inquest regarding their damages and the relief they seek, and this “Final Order” consented to by the Parents based upon their testamentary and documentary submissions, having been presented to this IHO on the record as being in the best interest of the Parent; 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 (T-5-32); and Whereas the DOE failed to appear for the impartial hearing as scheduled, failed to file and serve an answer, or serve a “Prior Written Notice” in this case. (See 20 U.S.C. 1415(f)(3)(e); and Whereas “Prior Written Notice’ meaning written statements developed in accordance with Section 200.5(a) of the Regulations of the Commissioner of Education, and provided to the parents of a student with a disability a reasonable time before the school district proposes to or refuses to initiate or change the identification, evaluation, or educational placement of the student or the provision of a free appropriate public education to the student; and Whereas silence in a responsive pleading is an admission, or that a counterclaim in federal practice is compulsory in the answer or deemed waived. (See New York Practice, 4 Edition §§223 & 224, citing Federal Rules of Civil Procedure, Rule 13(a) & Cummings v. Dresher, 18 N.Y.2d 105, 108, 271 N.Y.S.2d 976, 218 N.E.2d 688, 690 (1966) and additionally, as a general matter, the parties to an impartial hearing are obligated to comply with the reasonable directives of the Impartial Hearing Officer (“IHO”) regarding the conduct of the impartial hearing. (SRO No. 05-026, 04-103 and 04-061); and Whereas an IHO may require the parties to be present at the impartial hearing.

(8 NYCRR 200.5(j)(3)(xiii) and an IHO’s order to the Parent (here the DOE) to attend the impartial hearing in order to be questioned is a reasonable directive that obligates the agency to comply. (SRO No. 09-073); and Whereas the parties’ appearance is integral to the administration of an impartial hearing and at an impartial hearing, the IHO is authorized to administer oaths and to issue subpoenas in connection with the administrative proceeding (8 NYCRR

200.5{j|[3][iv]) and the IHO may ask questions of attorneys or witnesses for the purposes of clarification or completeness of the hearing record. (8 NYCRR

200.5{j][3][vii]); and Whereas the Parents, school authorities, and their respective attorneys or representatives, have an opportunity to present evidence, compel the attendance of witnesses, and to confront and question all witnesses at the impartial hearing. (8 NYCRR 200.5[j][3][xii]) and the IHO may take direct testimony by affidavit in lieu of in hearing testimony, provided that the witness giving such testimony shall be made available for cross-examination (8 NYCRR 200.5{j][3][xii][f])} and none of these processes can occur without the participation of the parties; and Whereas an IHO’s dismissal of a DPC with prejudice, based on the failure of the party to prosecute and comply with reasonable directives issued during the proceeding, has been held appropriate under the circumstances of the case. (SRO No. 04-061); and Whereas under New York law, a party’s failure to show up at the scheduled time for trial may entitle the opposing party to a default judgment. (CPLR § 3215(a); and Whereas the party who defaults in concedes only liability and not the amount of “damages.” (See CPLR § 3215, First Nat. Bank & Trust Co. v. Classic Collateral Corp., 44 A.D.2d 868, 355 N.Y.S.2d 504 (1974), James _v. Powell, 19 N.Y.2d 249, 279 N.Y.S.2d 10, 225 N.E.2d 741 (1967), McClelland v. Climax Hosiery Mills, 252 N.Y. 347, 169 N.E. 605 (1930) The DOE’s default constitutes an admission of liability, but not of damages, which remains the Parent’s burden to prove. (See Fed. R. Civ. P. 55 & City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114 at 128 [2d Cir. 2011]); and Whereas as noted above, the DOE has the burden of production and persuasion at an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c]); and Whereas here, the DOE did not appear at the hearing or proffer any evidence that it has offered the student a FAPE, and specifically, that it is providing the student with a transportation paraprofessional as mandated by his IEP (T-5-32), this amounting to a tacit concession that the agency did not offer the student a FAPE; and Whereas as noted above, the DOE did not serve and file an answer in the case, nor did the agency serve the Parent with “Prior Written Notice’, which would provide either a denial of the Parent’s allegation, or some explanation for the agency’s failure to provide the Parent with the relief sought; and Whereas as noted above, the DOE failed to appear, failed call any witnesses or to present a case-in-chief, did not submit any documents in evidence and did not cross examine the Parent’s witness (T-5-32) and the DOE also failed to file and serve an answer or serve a “Prior Written Notice” in this case. (See 20 U.S.C. 1415(f)(3)(e); and Whereas as noted above, “Prior Written Notice” means written statements developed in accordance with Section 200.5(a) of the Regulations of the Commissioner of Education and provided to the parents of a student with a disability a reasonable time before the school district proposes to or refuses to initiate or change the identification, evaluation, or educational placement of the student or the provision of a free appropriate public education to the student and notifies the Parent of the agency’s rational for its position and recommendations; and Whereas as noted above, silence in a responsive pleading is an admission, or that a counterclaim in federal practice is compulsory in the answer or deemed waived.

(See New York Practice, 4" Edition §§ 223 & 224, citing Federal Rules of Civil Procedure, Rule 13(a) & Cummings v. Dresher, 18 N.Y.2d 105, 108, 271 N.Y.S.2d 976, 218 N.E.2d 688, 690 (1966); and Whereas as noted above, under the IDEA, the DOE has the burden of production and persuasion at an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c]); and Whereas as noted above, the DOE did not present any direct case or proffer any substantive evidence that it has offered the student a FAPE or that the Parent is not entitled to the relief sought and there is a tacit concession that the agency did not offer the student a FAPE as required by law in that the DOE did not present a case-in-chief, did not serve and file an answer in the case, nor did the agency serve the Parent with “Prior Written Notice”, which could provide a denial of the Parent's allegation, and that the Parent is entitled to the relief sought; and Whereas although it would be fundamentally unfair to allow either party to rely solely on the submission of documents in meeting its burden under law, where those documents are rife with double, triple and even unidentified hearsay sources, that cannot be cross examined; and Whereas while compliance with technical rules of evidence is not required in administrative hearings, under certain circumstances, the receipt of hearsay evidence may be so prejudicial as to have a tendency to deprive a party of fair hearing. (See Strain _v. Sarafan, 57 A.D.2d 525, 393 N.Y.S.2d 572, N.Y.A.D. (1977), where the hearsay testimony was of vital importance and should have been subjected to cross-examination by the petitioner...the petitioner was deprived of a meaningful hearing,_ Dukes v. New York City Housing Authority, 63 A.D.2d 690, 404 N.Y.S.2d 889, N.Y.A.D.

(1978), holding that the excessive reliance on hearsay evidence effectively denied petitioner the right to cross-examine adverse witnesses, Claim of Evans, 254 A.D.2d 564, 678 N.Y.S.2d 696, N.Y.A.D. (3 Dept. 1998), (where in an unemployment compensation proceedings, administrative law judge (‘ALJ’) properly exercised discretion to exclude hearsay evidence to protect employer’s fundamental right of cross-examination, where claimant proffered written hearsay statement, authored by acquaintance of the employer’s president, which allegedly indicated that claimant did not resign but was fired, but the acquaintance failed to answer subpoena directing him to testify at hearing, thereby denying employer the opportunity to cross-examine him on the statement, and Alvarado v. State of New York, 110 A.D.2d 583, 488 N.Y.S.2d 177 (1° Dept. 1985), holding that a license suspension hearing against a boxer and his managers was faulty because of a lack of an opportunity “to cross-examine certain witnesses whose reports were introduced into evidence without their testifying, in violation of SAPA Section 306, subd. (3).” (Id. at 585, 488 N.Y.S.2d at 179); and Whereas here the DOE did not appear at the hearing, did not present a case-in-chief and made no substantive effort to controvert the testamentary and documentary evidence submitted by the Parent and the credibility of the testamentary and documentary evidence was not rebutted by the agency and the documentary evidence is clearly relevant and material to the issues to be determined; and Whereas I find the documentary and testamentary evidence submitted by the Parent in this case to be credible and completely uncontroverted and conclusive in this case; and Whereas as noted above, the DOE’s failure to present a case at the hearing is a concession that it denied the student a FAPE and that the Parent is entitled to the relief she seeks and this leaves, as the primary issue to be resolved through impartial hearing, what relief and/or compensatory education remedy, if any, is available and appropriate to remediate the denial of aFAPE. (SRO No. 17-033); and Whereas it is noted that the DOE was required under the due process procedures set forth in New York State law, to address its burdens in the due process hearing context by describing its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate relief and/or compensatory education remedy that most reasonably and efficiently could place the student in the position that he would have been but for the denial of a FAPE. (See Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 457 [2d Cir. 2015], cert. denied, 136 S. Ct. 2022 [2016], quoting Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [noting that the "ultimate award [of compensatory education] must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place’"]); and Whereas when, as here, the DOE does not present any case at the hearing, the hearing, the hearing process essentially becomes an “inquest” as to the appropriate relief; and Whereas the DOE has conceded liability by failing to present a case and meet its burden under the law because New York State law has placed the burden of production and persuasion at an impartial hearing on the school district, unlike states which align the burden of production and persuasion consistent with Schaffer v. Weast, 546 U.S.

49, 58-62 [2005]; and Whereas it is not an IHO's responsibility to craft the DOE’s position regarding the primary issue in the case, for the denial of FAPE and the undersigned finds that the DOE failed to adhere to the requirements of the law, has denied the student in this case a FAPE and that the Parent is entitled to the relief she has requested; and Whereas when turning to the question of whether the DOE should be required to reimburse and/or pay for the private educational services and relief requested for the student, because the services offered by the DOE were inadequate or inappropriate, and the relief sought and services selected by the Parents are appropriate and equitable considerations support the Parent's claim (Burlington, Florence and Cerra, Supra), the Parent need only demonstrate that the requested services are specially designed to meet the unique needs of the student, supported by such services as are necessary to permit her to benefit from the instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65); and Whereas a private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs. (See Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129 and Matrejek, 471 F. Supp.

2d at 419); and Whereas a Parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (See Carter, 510 U.S. at 14); and Whereas the private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-014 and 01-105); and Whereas the Parents also need not show that the placement provides every special service necessary to maximize the student's potential. (See Frank G., 459 F.3d at 364-65) and when determining whether the parents’ unilateral placement is appropriate, "[uJ]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]); and Whereas there is no request for compensatory educational services in this case and an IHO cannot determine the amount of compensatory education that a student requires unless the record provides him with sufficient “insight about the precise types of education services the student needs to progress.” (Mary McLeod Bethune Day Acad. Pub. Charter sch., 555 F. Supp. 2d 130, 50 IDELR 134 [D.D.C. 2008] citing Branham v. District_of

Columbia, 427 F.3d 7, 44 IDELR 149 [D.C. Cir. 2005]); and Whereas pertinent findings to enable an IHO to tailor the ultimate award to the student’s unique needs should include the nature and severity of the student's disability, the student’s specialized educational needs, the link between those needs and the services requested, and the student's current educational abilities. (See Branham v. District_of

Columbia, 427 F.3d 7, 44 IDELR 149 [D.C. Cir. 2005], see also Mary McLeod Bethune Day Acad. Pub. Charter Sch., 555 F. Supp. 2d 130, 50 IDELR 134 [D.D.C. 2008]); and Whereas the Parent has the burden of “propos[ing] a well-articulated plan that reflects the student’s current education abilities and needs and is supported by the record.” (See Phillips v. District of Columbia, 2010 WL 3563068, at *6, 55 IDELR 101 [D.D.C. Sept.

13, 2010] quoting Friendship Edison Pub. Charter Sch. Collegiate Campus v. Nesbitt (“Nesbitt II’), 583 F. Supp. 2d 169, 172, 51 IDELR 125 [D.D.C. 2008]); and Whereas the record in this case is completely uncontroverted by the DOE and supports a finding that the Parent is entitled to the relief sought (Supra) and it is unfortunate that the agency forced the Parent in this case to bring the matter to a hearing, when it failed to appear at the hearing, offered no evidence that it provided the student with a FAPE and then did not challenge the Parents’ assertion regarding the appropriateness of the relief sought; and Whereas the DOE did not initiate this impartial hearing (DPC); 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 testamentary and documentary submissions that sustains a finding that the Parents have not cooperated with the CSE; and Whereas the Parent has submitted the testimony of (2) witnesses on direct examination, via affidavit pursuant to 8 NYCRR 200.5/j][3][xii][f] (P-C & P-H) and (1) witness who testified in person (T-5-32); and Whereas the DOE having waived its right to contest that testimony and/or cross examine the Parents’ witness by failing to appear at the hearing (Id.); and Whereas the Parents’ testamentary and documentary 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 this IHO having determined that the Parent’s consent to the manner of determining this “Final Order” was made knowingly, intelligently and voluntarily; and Whereas the Parents’ oral arguments, discussions, concessions, testamentary and documentary evidence and this order having been recorded and annexed hereto; and

ORDER OF DISMISSAL - PENDENCY & MOOTNESS

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 matter having come on for an “impartial hearing” before this IHO, at which time the Parent appeared via her attorney(s), , attorney assigned and the DOE having failed to appear; and Whereas the Parent has requested an “Order on Pendency” awarding (i) at least (8) periods per week of bilingual SETSS; and (ii) a_ full-time, daily paraprofessional, each at an enhanced rate and each for the entire 2019-2020 school year; and Whereas the “Order on Pendency” that the Parent is entitled to covers almost the entirety of the student's 10-month 2019-2020 school year in the relief sought and, therefore, the matter has been rendered moot by that agreement (Id.); and Whereas the compensatory services awarded herein for the DOE’s failure to address “pendency” will provide any of the services not covered under the retroactivity of the Order on Pendency, thus the case had been rendered moot by this Order on Pendency and the Parent having received, or being entitled to receive, all of the payments she is entitled to pursuant to this Order on Pendency and a hearing on the merits rendered moot by the DOE’s failure to appear; and this “Order of Dismissal Pendency & Mootness” considered by this IHO on the record as being in the best interest of the Parent (T-5-32); and Whereas in Burlington the question was whether it was appropriate to reimburse parents retroactively for private-school tuition based on the merits of their claim - i.e., because the school district's IEP was inadequate and the private-school placement was appropriate - and here the basis for retroactive reimbursement is based on pendency; and Whereas in both cases, however, the Parents were due reimbursement that had been denied them by the simple passage of time, not because they were not entitled, under the IDEA, to the relief they sought; and Whereas here the argument for retroactive reimbursement is even stronger here than in Burlington because in that case there was apparently no delay based on a statutory time limit, as there is here; and Whereas in any event, here, as in Burlington, "such relief as the court determines is appropriate,” within the meaning of 20 U.S.C. § 1415(i)(2)(B)(iii), "Means that equitable considerations are relevant in fashioning relief." 471 U.S. at 374, 105 S.Ct. 1996. (See Mackey v. Bd. of Educ., 386 F.3d 158 (2d Cir. 2004), and Bd. of Educ.

v. O'Shea, 353 F.Supp.2d 449 (S.D.N.Y. 2005); and Whereas current prevailing case law prohibits a district 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 in this case the Parent has now received, or is entitled to receive under pendency and the accompany award of compensatory services, all of the relief she sought at the impartial hearing and that the 2019-2020 school year at issue has expired, which 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, the parties agree and 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, which in this case the DOE has conceded by failing to appear at the hearing, no further meaningful relief may be granted to the Parent because they has received all of the relief sought pursuant to “pendency”, and thus, the Parent's case has now been rendered moot; and Whereas 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 (2 Cir. 1998); and Whereas 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); and Whereas 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); and Whereas “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 placement or program offered by the DOE for the 2019-2020 school year, because the DOE’s failure to appear demonstrates that the DOE did not offer the student a FAPE for the 2019-2020 school year, yet, 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, based on the DOE’s default and the Parent’s right to an Order on Pendency, the Parents’ 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); and Whereas 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.); and Whereas after careful consideration and for several reasons discussed below, | respectfully decline to adopt the reasoning as set forth in V.S., because 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 (2TM 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.S., 2010 WL 983719 [S.D.N.Y. Mar. 17, 2010]); and Whereas 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); and Whereas 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]) and this process usually works best when it is as free as possible from acrimonious relationships that often develop after continued litigation; and Whereas 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 and 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; and Whereas, 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; and Whereas for the forgoing reasons, | decline to find that the Parents’ claims 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 that 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; and Whereas while the Parents may elect to challenge the IEP developed for the 2020-2021 and 2021-2022 school years and seek tuition reimbursement or additional services for the student at his private school for those school years in a subsequent due process proceeding, the issues presented in such a claim could be different as the placement recommended for the 2019-2020 school year; and Whereas each year the elements of a tuition reimbursement 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) and, 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 policy announced on June 24, 2014 that was implemented September 1, 2014 and includes the following changes in New York City:

6 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 (supra); and Whereas it is also important to note that as stated above, case law 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 This IHO having determined that the parties’ consent to the proposed “Order of Dismissal - Pendency & Mootness” was made knowingly, intelligently and voluntarily; and The parties’ oral arguments, discussions, concessions and this order having been recorded; Now, therefore, it is hereby

ORDERED upon the DOE’s DEFAULT and FAILURE TO APPEAR AND AFTER INQUEST, that pursuant to the pendency provisions under the IDEA, and based upon the DOE’s failure to timely implement pendency and the DOE’s default by failing to appear at the hearing, upon its receipt of reasonably satisfactory proof of service having been rendered, the DOE shall either reimburse the Parent and/or directly pay the cost of the student’s receipt of (8) periods per week of bilingual SETSS services, at a rate not to exceed $150 per hour (T-17 & P-F), a paraprofessional for the provision of full-time daily services, at a rate to exceed $40.00 per hour (T-10), and that the Doe shall issue “Related Service Authorizations” (“RSA”) for all of the related services on the student’s IESP dated January 22, 2018 (P-B), for the entire of the student’s 2019-2020 school year; and it is further

ORDERED upon the DOE’s DEFAULT and FAILURE TO APPEAR AND AFTER INQUEST that a copy of the student's IESP dated January 22, 2018 (P-B) shall accompany this order for reference; and it is further

ORDERED upon the DOE’s DEFAULT and FAILURE TO APPEAR AND AFTER INQUEST that this case has been rendered “moot” pursuant to the “pendency” provisions of the IDEA and the compensatory services awarded herein, the undisputed facts cited above, awarding the Parent “pendency” that is retroactive to the date the Parent filed her DPC, said payments having been already made and received by the Parent or there being an undisputed right on behalf of the Parent to receive said payments and said payments not being recoupable by the DOE and required upon the DOE’s receipt of reasonably satisfactory proof of said services having been rendered, requiring the DOE to reimburse the Parent and/or directly pay the cost of the services ordered above, for the entirety of the student's 2019-2020 school year; and it is further

ORDERED upon the DOE’s DEFAULT and FAILURE TO APPEAR AND AFTER INQUEST that the DOE shall immediately re-evaluate the student in all areas of his suspected disabilities not evaluated within the last two years; and it is further

ORDERED upon the DOE’s DEFAULT and FAILURE TO APPEAR AND AFTER INQUEST that upon completion of the student’s evaluations, 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 upon the DOE’s DEFAULT and FAILURE TO APPEAR AND AFTER INQUEST that any of the other relief sought by the Parents 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 or unsupported by the record.

DATED: September 29, 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)