New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 537889 - NYC: 194640

Finding of Fact and Decision

Case Number: Student's Name: Hearing Requested By: Hearing Officer:

194640

[Redacted]

Parent

Martin J. Kehoe III, Esq.

Actual Record Close Date: December 29, 2020

Introduction

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as District, the parent as Parent and the student will be referred to as Student. A hearing was held on December 3, 2020 and December 23, 2020.

Parent's Position The Parents have alleged in their complaint that the District never administered the Student's mandated triennial evaluations yet conducted an "exit summary1 ". Further, the Committee on Special Education (CSE) met on June 5, 2020 without conducting a psychoeducational evaluation as requested by the Parent in the spring. The Parent is seeking a Psychoeducational evaluation for the Student by the District, or as an Independent Educational Evaluation (IEE), in the alternative. (IHO #1).

1 Under C.F.R. 300.347[b][2]; see also 8 NYCRR 200.4[d][2][ix]), Transition services are defined as: a coordinated set of activities for a student with a disability that -

• • Is designed within an outcome-oriented process, that promotes movement from school to post-school activities, including post-secondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation;
• • Is based on the student's needs, taking into account the student's preferences and interests; and
• • includes -- i) Instruction; (ii) Related services; (iii) Community experiences; (iv) The development of employment and other post-school adult living objectives; and (v) If appropriate, acquisition of daily living skills and functional vocational evaluation. (34 C.F.R. § 300.29; see also 8 NYCRR 200.1[fff]); SRO 03-011.

District's Position The District's position is that the Parent's case has become moot because there is no obligation imposed onto the District to provide a FAPE or psychoeducational evaluation once a Student has graduated. Moreover, the District argues that even if there was an obligation to do so, the denial of such an evaluation is merely a procedural violation and does not involve a deprivation of instructional programs or services offered under FAPE2. The District further alleges that they were not legally obligated to provide a student with such an evaluation where the Student's final IEP review had been held the and the Student is in its final year of his FAPE eligibility'. Furthermore, the District alleges that when the Student received a high-school diploma, his eligibility for a new FAPE is terminated4 • In conclusion, the District alleges that no exception to the mootness doctrine applies and the Parent is not entitled to such an independent educational evaluation and the demand for such evaluations is moot.

Analysis

I find that the mootness doctrine does apply in this case5, but not for the reason cited by District counsel. Just yesterday (12/28/2020) I issued an order directing the complete relief requested.

2 In evaluating whether the District has complied with the procedural requirements of the IDEA, I consider whether the alleged procedural violation either 1) impeded the Student's right to a free and appropriate public education, 2) significantly impeded the Parent's opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § l 4 l 5(t)(3)(E)(ii); see also, Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 (S.D.N.Y. Jan. 9, 2007), Application of a Child with a Disability, Appeal No. 07-007.

3 8 N.Y.C.R.R. § 200.4(c)(4)

4 NY Educ. Law 3202(1); 8 NYCRR 200.4(ix)(c); N.Y. COMP.CODES R. & REGS. tit. 8. § 100.5(b)(7)(iii)

5 Under principles of subject matter jurisdiction, a court must ensure that a case involves an "actual controversy" at all stages ofreview. F.0. v. New York City Dept. of Educ., 899 F.Supp.2d 251, 254 (S.D.N.Y.2012), citing Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997). "The dispute between the parties... must at all stages be

Therefore, I dismiss this complaint notice without prejudice. Despite the case being moot, I do wish to address the district's arguments below.

Obligation to Provide Psychoeducational Evaluation The District alleges that once a final IEP review was held on August 26, 2019, there was not a continued requirement that the District "conduct a psychoeducational evaluation because the purpose of an evaluation [is] to provide the IEP team with information... in developing the IEP program and recommendations". (Ex 1 pg. 1-4) While 200.4(c)(4) does not impose an obligation to conduct psychoeducational evaluations before a student's eligibility under IDEA is terminated due to the student's graduation, it is not prohibited.

Rather, a request for psychoeducational evaluation is not foreign to due process claims of this nature. It is reasonable for such a request to be asserted by Parents and for the CSE to provide for 'real and live,' and not 'academic,' or it risks becoming moot." Lil/bask v. State of Conn. Dep 't of Educ., 397 F.3d 77, 84 (2d Cir. 2005). See also Patskin v. Board of Educ., 583 F. Supp. 2d 422, 428 (W.D.N.Y. 2008); Chenier v. Richard W, 82 N.Y.2d 830, 832 (1993). When the issues in dispute between the parties "are no longer 'live,"' a case becomes moot, Powell v. McCormack, 395 U.S. 486, 496 (1969), and "the court - whether trial, appellate, or Supreme - loses jurisdiction over the suit, which therefore must be dismissed." Russman v. Board of Educ., 260 F.3d 114, 118-19 (2d Cir. 2001).

"A case becomes moot when interim relief or events have eradicated the effects of the defendant's act or omission, and there is no reasonable expectation that the alleged violation will recur." F.0. v. New York City Dept. of Educ., 899 F.Supp.2d at 254, citing Yandow v. Kronau, 474 Fed. Appx. 797, 799 (2d Cir. 2012). Thus, "[t]he voluntary cessation of allegedly illegal conduct usually will render a case moot." Lil/bask, 397 F.3d 77 at 88 (school district's voluntary cessation of attempt to place student in a private school outside the public school system rendered claim moot).

A claim may not be moot if the conduct complained of is "capable ofrepetition, yet evading review." Honig v. Doe, 484 U.S. 305, 318 (1988); Lillbask, 397 F.3d at 84-85. This exception applies only when the action is so short in duration that it evades review, and there is a reasonable probability that the petitioner would be subject to the same action again. Van Wie v. Pataki, 267 F.3d 109, 114 (2d Cir. 2011). To create a reasonable expectation ofrecurrence, repetition must be more than theoretically possible. Russman v. Bd. of Educ., 260 F.3d 114, 120 (2d Cir. 2001). the requested relief that will ultimately further the Student's educational, employment, and independent living skills.

IDEA stresses the promotion of traits like self-determination and independent living on purpose. In fact, the core purposes of the IDEA are (1) to make certain that students with disabilities have available to them a FAPE with special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents are protected. 20 U.S.C. § 1400(d)(l)(A)-(B); see Forest Grove v. T.A., 557 U.S. 230,239 (2009); Bd. of Educ. v. Rowley, 458 U.S.176, 206-07 (1982); Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988,999, 69 IDELR 174 (Mar. 22 2017).

Let us suppose, as a hypothetical, that the evaluation conducted under the interim order in this case uncovers a serious deficiency in programming that should have been discovered long ago. One could argue that the prevention of such a discovery so late in the "game" is exactly what IDEA seeks to prevent. Despite there not being a statutory obligation to provide such evaluation, it is the District's responsibility and burden to show that their IEP and FAPE's throughout schooling were appropriate for the Student. If the services and programs provided are not appropriate, the parents of said child are likely to have a validated special education claim.

Notwithstanding the claim that an exit summary has been conducted, any post-high school planning would seemingly be lacking without conducting recent testing in this manner. There are implicit concerns that the interim order recently issued in this case may uncover a deprivation of educational benefits, or at least, a consistent lack of attention to a need for evaluations like the one requested by the Parents. If that were to be the case, the tri-annual psychoeducational evaluation conducted on December 4, 2016 and the exit summary conducted on June 5, 2020 would not hold weight under the federal guidelines under IDEA and would need to be reassessed.

Mootness

While I agree with the District regarding the fact that the failure to conduct an exit evaluation is merely a procedural violation that does not automatically result in the denial of FAPE, I do not believe that mootness doctrine is applicable solely because of the Student's graduation. Rather, the applicability of the mootness doctrine with this claim relates to the fact that the interim order issued on December 28, 2020 encompassed the demand for relief made by Parents.

The District's motion mentions the concept that "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." (Ex. 1 pg. 1-8) Although the relief requested is satisfied with the interim order, the continued relief for the Student will remain to be in question. Without evaluative material one cannot judge the impact of programming upon the Student. Because of this continued concern, the mootness of this claim is still undetermined with the lack of a true record of evaluative materials to refer to.

Jurisdictional Limits The Second Circuit "has held that compensatory education may be awarded to students who are ineligible for services under the IDEA by reason of age or graduation only if the district committed a gross violation of IDEA which resulted in the denial of, or exclusion from, educational services for a substantial period of time." Application of a student with a disability, Appeal No. 18-081

(citing Doe v. E. Lyme Bd. of Educ., 790 F.3d 440,456 n.15 (2d Cir 2015) Even though the scope of my jurisdiction is limited by the nature of the complaint notice, in this instance, the Parent would arguably be able to bring a different complaint notice and pursue a compensatory education remedy, if warranted.

It is therefore ORDERED

This case is dismissed without prejudice.

Dated: December 29, 2020

Martin J. ehoe III, Esq. Impartial Hearing Officer

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://.,,V"!tvw.sro.nysed.gov.