Impartial Hearing Decision

________________________________________________________________________ In the Matter of the Due Process Hearing

Between The Parent of REACTED And

REACTED SCHOOL DISTRICT

NYSED Case #555908

Pursuant to the Provisions of Article 89 of the Education Law of the State of New York

JAMES P. WALSH, ESQ.

Impartial Hearing Officer

REDACTED

APPEARANCES:

REACTED

Attorneys for District

REACTED

REDACTED

REACTED, ESQ. Of Counsel

REACTED

Parent - Pro Se

REDACTED

DECISION

JURISDICTION

This proceeding was commenced by the Parent of REACTED, a student residing within the territorial jurisdiction of the REACTED School District and a student previously determined to be a student with a disability, (hereinafter referred to as “Student”), by the filing by Parent of a Due Process Complaint Notice, dated August 27, 2021, with the REACTED Central School District, (hereinafter referred to as “District”), on August 30, 2021.

In accordance with the Regulations of the Commissioner of Education of the State of New York, the undersigned was appointed as the Impartial Hearing Officer authorized to preside over the above-captioned proceeding on September 8, 2021.

Parent’s Due Process Complaint (I.H.O. Exhibit I) sought to challenge the appropriateness of District’s placement of Student at REACTED Hall, alleging that such was impacting Student’s emotional and physical well-being, specifically noting that Student was, “on a daily basis subjected to bulling, sexual harassment, physical assault and name calling”. District filed its Answer to Due Process Complaint, dated September 9, 2021 (I.H.O. Exhibit #2).

I conducted a Pre-Hearing Conference with both parties by telephone on October 7, 2021 to discuss Pendency. However, District’s Counsel advised that District had considered making an Offer of Settlement to Parent and requested a delay in proceeding so that Parent might consider such Offer. While District proposed a delay in proceedings of thirty days, the parties were advised that another Conference would be held on October 13, 2021.

At the October 13, 2021 Conference Parent advised that she had rejected District’s Offer. District then advised that Parent had withdrawn Student from District and was engaged in providing Home School to Student and, in light of such, Parent’s Due Process Complaint had become moot. In response, Parent stated that, due to the horrific nature of Student’s placement, Parent could not countenance permitting Student to remain in his then-current placement and that she would remove Student from District for Home Schooling, but, after speaking with District’s Chair of its Special Education Program, was advised by such Chair that she could also file for Due Process review.

At the conclusion of the October 13, 2021 Conference, I directed District to submit proof of Parent’s application to Home School Student (I.H.O. Exhibit #3). I also advised the parties that I would conduct a Pendency Hearing on October 22, 2021. District immediately provided a copy of correspondence from REACTED BOCES to Parent, dated August 31, 2021 (I.H.O. Exhibit #4) regarding Parent’s Letter of Intent to Home School.

I advised that such submission was insufficient to comply with my direction, as I was seeking proof of compliance with 8 NYCRR §100.1. District, on October 20, 2021 then submitted documentation regarding the provisions of New York State Education Law Section 1950 (I.H.O. Exhibit #5). I recognized that I had been unaware of the provisions of New York State Education Law Section 1950 and that my correspondence of October 13, 2021 was in error. The Pendency Hearing was thereafter cancelled so that I might address the fundamental issues of jurisdiction and mootness.

Parent had engaged in sending emails to me containing her expression of concern and making a number of statements that, among others, indicated the Parent had, in fact, applied for, had been approved for, and was engaged in Home Schooling Student. In light of such, I determined to hold the Pendency Hearing in abeyance and address the issue of Parent’s Home-Schooling status and its affect on Parent’s Due Process Complaint.

Such Hearing was conducted on November 18, 2021. Parent had sought the issuance of a Subpoena to require REACTED, the (then) Director of District’s Committee on Special Education to testify. Rather than issuing such Subpoena, which would have required Parent to appropriately serve the same, I simply directed District to make Ms. REACTED available.

It was Parent’s enunciated position that Parent had been advised that she could both Home School and pursue a Due Process proceeding – and that such had been told to her by Director of Special Education REACTED. Witness REACTED testified that Parent had visited her at her office to discuss Parent’s intention to Home School Student and obtain the required forms to do so. According to the testimony of Witness REACTED, Ms. REACTED provided such forms and also advised Parent of Parent’s right to file a Due Process Complaint. When specifically asked if she had told Parent that Parent could both remove Student from the school and still pursue a Due Process proceeding, Witness REACTED replied that she could not say that she recalled saying that specifically, but that they had talked about both (T.R.26). Parent confirmed the accuracy of such statement (T.R.24).

It is my finding and determination that Parent in consulting with Ms. REACTED, was seeking to remove Student from District’s program and Home School Student. I find it totally consistent that Witness REACTED assisted Parent with Parent’s intent to Home School Student and, aware that Student was receiving Special Education, to also remind or advise Parent of her right to a Due Process proceeding.

Whatever uncertainty or confusion existed in Parent’s mind, it is clear that Parent has removed Student from District’s programs and is Home Schooling Student. Parent does not dispute this. Having determined such, it is clear that Parent is not entitled to a Due Process Hearing. There is no determination that I might find in Parent’s favor that can be enforced regarding Student’s current program. The dispute between the parties must at all stages be “real and live” (Lillbask v. State of Conn Dep’t of Educ., 397 F.3d [2d Cir. 2005]. As was noted in Chenier v. Richard W. [82 N.Y.2d 830] a matter is moot because there were no indications that either party was still being affected in some way. As ruled by the State Review Officer in Application of a Child with a Disability, Appeal No. 07-15, “(T)he rights of a parties cannot be affected by the determination of this appeal and it is therefore moot”.

In this proceeding, Student is presently being Home-Schooled by Parent. There is simply no determination that I might make or any Order that I might issue regarding Student’s prior special education placement or program that would alter Student’s current program. This matter is, therefore, moot and must be dismissed.

It is, therefore, my finding and determination that, as the issues raised by Parent in her Due Process Complaint of August 27, 2021 are now moot, Parent’s Due Process Complaint must be, and hereby is, DISMISSED.

Dated: December 14, 2021

______________________________

JAMES P. WALSH

Impartial Hearing Officer The above constitutes my decision that in accordance with the provisions of Article 89 of the New York State Education Law.

Within 40 days of the date of this Decision, Parent and/or the REACTED Central School District have a right to appeal this 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 serve 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 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

EXHIBITS MADE PART OF THE RECORD

No.: # of Pages Description Offered by

#1 2 Parent’s Due Process Complaint, dated 8-27-21 I.H.O.

#2 4 District’s Answer to Complaint, dated 10-9-21 I.H.O.

#3 3 Letter from I.H.O. Walsh to Parties, dated 10-13-21 I.H.O.

#4 2 Letter from REACTED BOCES to Parent, I.H.O.

dated 10-31-21 (1); Letter of Intent of Parent for Home Instruction, dated 8-31-21 (1)

#5 11 District’s Letter to I.H.O. Walsh, dated 10-20-21 (3); I.H.O.

Attachment A (3); Attachment B (5)