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UNIVERSITY OF THE STATE OF NEW YORK
NEW YORK STATE EDUCATION DEPARTMENT
In the Matter of [REDACTED] (hereinafter referred to as) the “Parent”), on behalf of his son, [REDACTED])
(hereinafter referred to as the “Student”))
)
Petitioners,) Jeffrey J. Schiro, Esq.
) Impartial Hearing Officer
-against-)
) IHRS
BOARD OF EDUCATION OF THE)
[REDACTED] UNION FREE)
SCHOOL DISTRICT,)
)
Respondent.)
DECISION & ORDER
For the Student:
[REDACTED], Esq., Parent, pro se For the School District:
[REDACTED], Esq., Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED FOR PHC ON MAY 9, 2022
For the Student:
[REDACTED], ESQ., Parent, pro se
For the District:
[REDACTED], ESQ., Attorney
[REDACTED], Ed.D, Director of Pupil Personnel Services
NAMES AND TITLES OF PERSONS WHO APPEARED FOR PHC ON MAY 19, 2022
For the Student:
[REDACTED], ESQ., Parent, pro se
For the District:
[REDACTED], ESQ., Attorney
[REDACTED], Ed.D., Director of Pupil Personnel Services
I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. On January 13, 2022, the school district received a due process complaint which initiated this matter (i.e., IHRS ). In that complaint, the parent asserts that the school district violated the terms of a pendency agreement between the parties by unilaterally changing the content of the student’s instruction during an after-school support period. As relief, the parent seeks an Order directing the school district to abide by the terms of the pendency agreement, by providing the student with after-school instruction which focuses on academic support, rather than transition activities (Ex. IHO-I).[1]
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local committee on special education (“CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(A)-(B); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R.
§§ 300.503(a)(1)-(2), 300.507(a)(1).
An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(A), (h)(1)-(3); 34 C.F.R.
§§ 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii).
The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration of the resolution session period. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR
§ 200.5(k).
II. PROCEDURAL HISTORY
On January 13, 2022, the Board of Education of the [REDACTED] Union Free School District (the “District”) appointed the undersigned to serve as the IHO in this matter (i.e., IHRS ). See 8 NYCRR § 200.5(j)(3)(i). On January 31, 2022, the District served the parent with a combined answer and motion to dismiss the complaint (Ex. IHO-II). See 8 NYCRR §§ 200.5(i)(4)-(5).
In a letter to the parties dated March 12, 2022, I disclosed aspects of my professional background prior to becoming an IHO, summarized the hearing procedures, and requested the parties’ availability for a pre-hearing conference (Ex. IHO-IV). A pre-hearing conference with the parties was held on April 11, 2022, to determine if there were any objections to my appointment, clarify the hearing issues, and set a calendar on the District’s motion to dismiss. See 8 NYCRR § 200.5(j)(3)(xi). At the April 11, 2022, pre-hearing conference, the parties consented to my continued appointment to this case (R. 4-5) and the parent expressed an intent to withdraw some of the claims contained in his due process complaint (R. 29-31).[2]
Given the inclusion of a lengthy factual affidavit in support of the District’s motion to dismiss (Ex. IHO-III), the parent was given leave at the April 11, 2022 pre-hearing conference to conduct cross-examination of the District’s affiant at a later date (R. 14-26). See 8 NYCRR § 200.5(j)(3)(xii)(f). Hearings on the District’s motion were thereafter held on May 9, 2022, and May 19, 2022, during which time the parent was given the opportunity to conduct cross-examination of [REDACTED], the District’s Director of Pupil Personnel Services, on the contents of her affidavit (R. 35, 271). See id. Consistent with a briefing schedule set at the May 19, 2022, hearing (R. 387-392), the parent filed his response in opposition to the District’s motion to dismiss on June 20, 2022 (Ex. IHO-VIII) and on June 27, 2022, the District filed its reply in support of its motion (Ex. IHO-IX). [3]
Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).
III. FACTUAL BACKGROUND
At the time of the due process complaint, which was received by the District on January 13, 2022, the student was [REDACTED] years old and has a medical diagnosis of Down Syndrome, which has an impact on his motor and sensory development, and performance in the educational environment. The student's eligibility for special education and related services as a student with an intellectual disability is not in dispute in this hearing (Exs. IHO-I, IHO-II).[4] See 8 NYCRR § 200.1(zz)(7).
The student resides within the [REDACTED] School District (“[REDACTED]”). [REDACTED] is an elementary school district ending at grade six. When children finish sixth grade at [REDACTED], they have a choice between attending middle school and high school in the [REDACTED] School District or the [REDACTED] School District. For all times relevant to this hearing, parents have elected for the student to receive instruction from the [REDACTED] School District.
The student in this case has been the subject of thirteen prior State-level administrative appeals.[5] Accordingly, the parties’ familiarity with the student’s educational history is presumed and will not be restated here.
The instant dispute centers on a related service the parties call “special instruction,” which originated as an IEP component when the student was educated at [REDACTED] (Exs. IHO-II at ¶ 47, IHO-III at ¶ 15). In or around 2016, the District agreed to provide the student with special instruction in the form of six (6) hours per week of academic support after-school at the student’s home (Ex. IHO-III at ¶ 15). At a meeting held on October 19, 2018, the CSE changed the location of special instruction from “home” to “home and community” (Exs. IHO-II ex. B, IHO-III at ¶ 17). Since October 2018, the special instruction provided to the student has included academic instruction, as well as transition activities at home and in the community (Ex. IHO-III at ¶ 19).
On September 20, 2019, the parties entered into an Agreement as to the location and logistics of the student’s education during ongoing litigation. Pursuant to the September 2019 Agreement, the student is to be transported by the District to one of its schools to receive related services of physical therapy, adaptive physical education, speech and language therapy and occupational therapy. Upon completion of his related services, the student is to be bused to the local library for the provision of his special education instruction by a District-provided special education teacher; and, thereafter, the student’s parents would be responsible for his transport home. Later in the day, the student is to return to the library with transportation provided by the parent, for special instruction (Exs. IHO-II ex. B, IHO-III at ¶ 22).
The CSE convened on June 9, 2021, and June 27, 2021, to develop an IEP for the student for the 2021/22 school year. The June 2021 CSE recommended that the student receive the majority of his instruction in a 12:1+1 special class at the [REDACTED] Junior-Senior High School. The CSE also recommended that the student receive extended school year or twelve-month services from [REDACTED] Regional BOCES in [REDACTED] (Exs. IHO-II ex. C, IHO-III at ¶ 61). The parents rejected both recommendations and filed for due process in a separate proceeding (i.e., IHRS Case No. 552797).
In this matter, the parent asserts that, beginning in September 2021, the District’s Director of Pupil Personnel Services unilaterally changed the instructional content being taught during the student’s after-school academic support period (i.e., special instruction). Specifically, the parent alleges that the District’s Director of Pupil Personnel Services “directed the instruction to discontinue ‘academic support instruction,’ and instead begin focusing on the [student’s] ‘transition instruction’” (Exs. IHO-I, IHO-II ex. A ¶¶ 17-18). This hearing ensued.
IV. POSITIONS OF THE PARTIES
A. The District The District’s motion to dismiss the parent’s due process complaint should be granted. The parent’s due process complaint fails to meet the sufficiency requirements set forth in State law and regulations. The parent has also failed to state a claim upon which relief can be granted. The parent’s complaint should be dismissed as moot. The District did not violate the September 2019 Pendency Agreement. The District’s Director of Pupil Personnel Services did not order the discontinuation of academic instruction during special instruction. The content of the student’s special instruction did not change during the 2021/22 school year. Since October 2018, the student’s special instruction has included transition activities. Consistent with the holding in Ventura DePaulino v. New York City Dep’t of Educ., 959 F.3d 519, 534-536 (2d Cir. 2020), the District retains the authority to determine where and how to provide the special instruction during pendency (Exs. IHO-II at ¶¶ 36-37, IHO-III at ¶¶ 19, 77-78, IHO-IX at 10-11).
B. The Parent The District’s motion to dismiss should be denied in its entirety. All pendency agreements must facilitate a FAPE. The last-agreed upon placement was an IEP brokered between the parents and [REDACTED] for the 2016/17 school year. That IEP also represents the student’s operative placement. At no time was transition instruction intended to be blended or integrated into the student’s special instruction (Ex. IHO-VIII).
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. General IDEA Standards
Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (1) to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”) that emphasizes 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 of such students are protected, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).[6]
A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 (2d Cir. June 24, 2013); R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012), cert. denied 2013 WL 1418840 (U.S. June 10, 2013); M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).
B. Pendency/Stay-Put Standards 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); 34 C.F.R. § 300.518(a); N.Y. Educ. Law § 4404(4); 8 NYCRR § 200.5(m); Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 531 (2d Cir. 2020), cert. denied, 121 LRP 1307 (2021); T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 170-71 (2d Cir. 2014); Mackey v. Bd. of Educ. of the Arlington Cent. Sch. Dist., 386 F.3d 158, 163 (2d Cir. 2004), citing Zvi D. v. Ambach, 694 F.2d 904, 906 (2d Cir. 1982); M.G. v. New York City Dep't of Educ., 982 F. Supp. 2d 240, 246-47 (S.D.N.Y. 2013); Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *20 (E.D.N.Y. Oct. 30, 2008); Board of Educ. of Poughkeepsie City Sch. Dist. v. O'Shea, 353 F. Supp. 2d 449, 455-56 (S.D.N.Y. 2005).
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 at 906; Wagner v. Board of Educ. of Montgomery County, 335 F.3d 297, 301 (4th Cir. 2003); 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) (emphasis in original); Evans v. Board of Educ. of Rhinebeck Cent. Sch. Dist., 921 F. Supp. 1184, 1187 (S.D.N.Y. 1996), citing Board of Educ. of City of New York v. Ambach, 612 F. Supp. 230, 233 (E.D.N.Y. 1985).
A student's placement pursuant to the pendency provision of the IDEA is evaluated independently from the appropriateness of the program offered the student by the CSE. See Mackey, 386 F.3d at 160-61; Zvi D., 694 F.2d at 906; O'Shea, 353 F. Supp. 2d at 459 (noting that "pendency placement and appropriate placement are separate and distinct concepts"). The pendency provision does not require that a student remain in a particular site or location, see Ventura de Paulino, 959 F.3d at 532; T.M., 752 F.3d at 170-71; 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, 753, 756 (2d Cir. 1980); see also Child's Status During Proceedings, 71 Fed. Reg. 46709 (Aug. 14, 2006) (noting that the "current placement is generally not considered to be location-specific"), or at a particular grade level, see Application of a Child with a Disability (Fayetteville-Manilus Cent. Sch. Dist.), Appeal No. 03-032 (SRO Oct. 24, 2013); Application of a Child with a Disability (Stockbridge Valley Cent. Sch. Dist.), Appeal No. 95-16 (SRO May 18, 1995).
Under the IDEA, the pendency inquiry focuses on identifying the student’s then-current educational placement. See Ventura de Paulino, 959 F.3d at 532; Mackey, 386 F.2d at 163; Zvi D., 694 F.2d at 906. Although not defined by statute, the term “‘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.” Ventura de Paulino, 959 F.3d at 532; see Concerned Parents, 629 F.2d at 753, 756. The “last agreed-upon educational program” has been found to mean either: (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; or (3) the placement at the time of the previously implemented IEP. See Dervishi v. Stamford Bd. of Educ., 653 Fed. App’x 55, 57-58 (2d Cir. June 27, 2016), quoting Mackey, 386 F.3d at 163; T.M., 752 F.3d at 170-171; Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 (2d Cir. 2015). Furthermore, the Second Circuit has stated that educational placement means "the general type of educational program in which the child is placed," see Concerned Parents, 629 F.2d at 753, 756, and that "the pendency provision does not guarantee a disabled child the right to remain in the exact same school with the exact same service providers," see T.M., 752 F.3d at 171.
Once a pendency placement has been established, it can be changed: (1) by agreement between the parties; (2) by an unappealed IHO or court decision in favor of the parents; or (3) by an SRO decision that a unilateral parental placement is appropriate. See 34 C.F.R. §§ 300.518(a), (d); 8 NYCRR §§ 200.5(m)(1)-(2); Ventura de Paulino, 959 F.3d at 532; Board. of Educ. of Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476, 483-84 (2d Cir. 2002), cert. denied 537 U.S. 1227 (2003); New York City Dep't of Educ. v. S.S., 2010 WL 983719, at *1 (S.D.N.Y. Mar. 17, 2010); Student X, 2008 WL 4890440, at *23; Arlington Cent. Sch. Dist. v. L.P., 421 F. Supp. 2d 692, 697 (S.D.N.Y. 2006); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 86 F. Supp. 2d 354, 366 (S.D.N.Y. 2000), aff'd, 297 F.3d 195 (2d Cir. 2002); Letter to Hampden, 49 IDELR 197 (OSEP 2012). If there is an agreement between the parties on the student's educational placement during the due process proceedings, it need not be reduced to a new IEP, and the agreement can supersede the prior unchallenged IEP as the student's then-current educational placement. See Schutz, 290 F.3d at 483-84; Evans, 921 F. Supp. at 1189 n.3; Murphy, 86 F. Supp. 2d at 366.
C. Motion to Dismiss
As a general matter, summary disposition procedures akin to those used in judicial proceedings are a permissible mechanism for resolving certain proceedings under the IDEA; however, they should be used with caution and are appropriate in instances in which “the parties have had a meaningful opportunity to present evidence and the non-moving party is unable to identify a genuine issue of material fact.” See J.D. v. Pawlet Sch. Dist., 224, F.3d 60, 69 (2d Cir. 2000); Application of a Student with a Disability (New York City Sch. Dist.), Appeal No. 11-090 at 3 n.3 (SRO Sept. 15, 2011); Application of a Student Suspected of Having a Disability, Appeal No. 11-044 at 5 n.5 (SRO June 22, 2011).
On January 31, 2022, the District moved to dismiss the parent’s due process complaint (Ex. IHO-II). As an evidentiary record must be established to provide an adequate record for review, see 8 NYCRR § 200.5(j)(3)(xii); Application of a Student with a Disability (Ardsley Union Free Sch. Dist.), Appeal No. 18-104 at 7 n.6 (SRO Nov. 14, 2018), a decision on the District’s motion was reserved until after: (1) a pre-hearing conference with the parties was held on April 11, 2022; (2) the parent was provided an opportunity over two days, i.e., May 9, 2022 and May 19, 2022, to cross-examine the District’s affiant in support of its motion, i.e., the District’s Director of Pupil Personnel Services; and (3) the parties’ submission of documentary evidence supporting their respective positions (Exs. IHO-II, IHO-VIII, IHO-IX). Having reviewed the transcripts of testimony from the District’s Director of Pupil Personnel Services and the content of the parties’ written submissions, I find that I now have sufficient evidence to make necessary findings of fact and of law relative to the District’s motion to dismiss.
- • Mootness It is well settled that 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 (2d 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). Mootness may be raised at any stage of litigation. See In re Kurtzman, 194 F.3d 54, 58 (2d Cir. 1999). Administrative decisions rendered in cases that concern such issues that arise out of school years 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); M.S. v. New York City Dept. of Educ., 734 F. Supp. 2d 271, 280-81 (E.D.N.Y. 2010). 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 V.M. v. No. Colonie Cent. Sch. Dist., 2013 WL 3187069, at *13-*15 (N.D.N.Y. June 20, 2013); Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 12-205 at 8 (SRO July 31, 2014).
The pendency or stay-put provision only applies when a parent has filed an IDEA due process complaint. See 34 C.F.R. § 300.518(a) (noting that stay-put protections apply during any administrative or judicial proceeding arising out of a due process complaint). In this case, there is no longer any live controversy relating to the parent’s FAPE claims for the 2021/22 school year. Those claims were denied in a January 28, 2022, Findings of Fact and Decision (“FOFD”) in IHRS Case No. 552797 and the 2021/22 school year has now expired. The January 28, 2022, FOFD was later affirmed by the SRO in Appeal No. 22-010 rendered on March 11, 2022.
Alternatively, an exception to the mootness doctrine 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. The exception applies only in limited situations, City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983), and is severely circumscribed, Knaust v. City of Kingston, 157 F.3d 86, 88 (2d 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." Murphy v. Hunt, 455 U.S. 478, 482 (1982); see Knaust, 157 F.3d at 88. 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. 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 (2d Cir. 2001). 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.
I find that the exception to the mootness doctrine applies in this matter, as the parties’ pendency dispute is capable of repetition. As I have been appointed to four other matters involving the same student with a disability which are currently pending, i.e., IHRS Case Nos. 571788, 572869, 572870 and 576267, there is reasonable expectation that the parties will have a pendency dispute in one or more of those others matters similar to the one raised in this case. I will, therefore, analyze the merits of the parent’s claims and the District’s motion.
- • Student’s Pendency or Stay-Put Placement The student first enrolled in the District for the 2016/17 school year (R. 103). The District Director of Pupil Personnel Services testified that special instruction was an IEP related service provided to the student at [REDACTED], later incorporated into a September 2016 pendency agreement between the District and the parent, whereby the student was to receive six (6) hours per week of special instruction whose nature was academic support (R. 17, 173, 316; Exs. IHO-II at ¶ 47, IHO-III at ¶ 15).[7]
The content of the student’s special instruction was changed at an October 19, 2018, CSE meeting, convened in accordance with a corrective action plan issued by the New York State Education Department’s Office of Special Education Quality Assurance (“SEQA”) (R. 305). The October 2018 CSE recommended that special instruction be changed from “home” to “home and community,” to incorporate then-newly developed postsecondary goals and a coordinated set of transition activities (R. 170-171; Ex. IHO-II ex. E).[8] The change “was not intended to replace any academic support” (R. 181). The parent agreed to this change and raised no objection at CSE meetings held subsequent to 2018 (R. 174, 347).
The location of home instruction and special instruction was changed in the September 2019 Agreement (R. 376). Up to that point, and pursuant to the 2016 pendency agreement, home instruction and special instruction were provided to the student at his home (R. 243). In the spring of 2016, the parents advised the District that their home was unavailable for instruction (R. 330). The parents and District officials met, and on September 20, 2019, formally agreed that both home instruction and special instruction would be provided to the student in the public library (R. 243; Ex. IHO-II ex. B).
Based on the evidence contained in the hearing record, as described above, I find that the last agreed upon educational placement for the student is set out in the September 2019 Agreement (Ex. IHO-II ex. B). The parent’s assertion to the contrary (Ex. IHO-IX at 1), is without merit. See Killoran v. Westhampton Beach Sch. Dist., 20-Civ-4121 (JS)(SIL), 112 LRP 9347 (E.D.N.Y. Mar. 22, 2022) (“Here, the parties agree that the last agreed upon educational placement for [the student] is set out in the 2019 Agreement”).
- • Alleged Pendency/Stay-Put Violation The parent asserts that the District unilaterally changed the content and focus of the student’s special instruction (Ex. IHO-I). The parent’s position relies heavily on a letter to him from the District’s Director of Pupil Personnel Services, dated May 17, 2021, which stated that:
Commencing tomorrow May 18, 2021, [the student] will be transported daily to the [REDACTED] Library for his academic instruction and the special instruction hours indicated on his IEP. On Mondays and Wednesdays, the bus will pick him up at the library at 12:00 noon to be transported home. On Tuesdays, Thursdays and Fridays, the bus will pick him up at 1:10 p.m. to be transported home. Two hours daily will be devoted to academic instruction. Six hours weekly (special instruction) will be dedicated to providing transition opportunities in the Westhampton Beach community (Ex. SD-1) (emphasis added).
The District’s Director of Pupil Personnel Services credibly testified, however, that this letter was not directed to the student’s instructors and not intended to change the content of the student’s special instruction (R. 250). Instead, the District’s Director of Pupil Personnel Services sought to communicate to the parent the urgency in getting instruction in place for the student to work on transition goals following COVID-19-related shutdowns of the library in 2020 (R. 334).
The parties’ September 2019 Agreement is silent on the content of the student’s special instruction. Paragraph 4 of the September 2019 Agreement provides:
Following [the student’s] school day, and at the scheduled time, [the student’s] parents shall be responsible for transporting [the student] to the local library for the provision of his special instruction. During such time, the defendant District will be responsible for providing [the student’s] special instruction and [the student’s] parents will be responsible for providing a suitable person to provide adult supervision for [the student]. [The student’s] parents will be responsible for [the student’s] transport home. The defendant District will be responsible for documenting any cancelled special instruction and will be responsible for making up any missed time when the provider cancels, but not if and when parent [sic] cancels (Ex. IHO-II ex. B at 2).
Given that the parties’ September 2019 Agreement does not specify the content of the student’s special instruction, I find that the District retains the discretion to determine the content of the student’s special instruction. See Ventura de Paulino, 959 F.3d at 533-534 (stating the stay-put provision “does not eliminate the school district’s preexisting and independent authority to determine how to provide the most-recently-agreed-upon educational program). In general, a CSE is not required to specify methodology on an IEP, and the precise teaching methodology to be used by a student's teacher is usually a matter to be left to the teacher's discretion—absent evidence that a specific methodology is necessary. See Rowley, 458 U.S. at 204; R.B. v. New York City Dep't of Educ., 589 Fed. App'x 572, 575-76 (2d Cir. Oct. 29, 2014); A.S. v. New York City Dep't of Educ., 573 Fed. App'x 63, 66 (2d Cir. July 29, 2014), aff'g 2011 WL 12882793, at *16 (E.D.N.Y. May 26, 2011) (noting the "broad methodological latitude" conferred by the IDEA); K.L. v. New York City Dep't of Educ., 530 Fed. App'x 81, 86 (2d Cir. July 24, 2013); R.E., 694 F.3d at 192-94; M.H., 685 F.3d at 257 (noting a school district's "broad discretion to adopt programs that, in its educational judgment, are most pedagogically effective"); see also Letter to Hall, 21 IDELR 58 (OSERS 1994) (stating that the IDEA does not require that a child’s IEP include an identification of particular teachers, materials to be used, or educational methodology).
Alternatively, I decline the parent’s invitation to use extrinsic evidence of oral or written agreements between the parties prior to the September 2019 Agreement to fashion an instructional content component to the parties’ September 2019 Agreement (Ex. IHO-VIII). See Killoran v. Westhampton Beach Sch. Dist., 20-Civ-4121 (JS)(SIL), 112 LRP 9347 (E.D.N.Y. Mar. 22, 2022) (declining the parent’s request to “reform” the parties’ September 2019 Agreement). I have considered the parent’s remaining claims and have concluded that they are without merit.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS
HEREBY ORDERED THAT:
The District’s motion to dismiss the parent’s complaint in IHRS is GRANTED and the complaint is hereby DISMISSED.
Dated: July 27, 2022
/s/ Jeffrey J. Schiro
Jeffrey J. Schiro, Esq.
Impartial Hearing Officer
PLEASE TAKE NOTICE
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 plan 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.
DOCUMENTATION ENTERED INTO THE HEARING RECORD
PARENT
None
SCHOOL DISTRICT
- • Letter to parents from [REDACTED], 5/17/22, 1 pg.
IMPARTIAL HEARING OFFICER
I. Due Process Complaint (IHRS ), rec’d 1/13/22, 3 pgs.
II. District’s Combined Answer & Motion to Dismiss, 1/31/22, 23 pgs.
Ex. A – Due Process Complaint w/ paragraph numbers, undated, 3 pgs.
Ex. B – Pendency Letter Agreement, 9/20/19, 3 pgs.
Ex. C - Individualized Education Program (IEP), 6/6/21, 22 pgs.
Ex. D – Findings of Fact & Decision (IHRS Case No. 540170), 12/24/20, 17 pgs.
Ex. E – Prior Written Notice (PWN), 10/25/18, 2 pgs.
Ex. F – Library Tutoring Policy, last amended 4/10/19, 1 pg.
Ex. G – Letter to parent from [REDACTED] (Pres., Lib. Bd. of Trustees), 11/22/21, 2 pgs.
Ex. H – Letter to parents from [REDACTED], 1/14/22, 1 pg.
III. Affidavit of [REDACTED] in Support of Motion to Dismiss, 1/31/22, 21 pgs.
IV. Letter to parties from IHO, 3/12/22, 6 pgs.
V. Extension Order, 3/29/22, 1 pg.
VI. Hearing Notice, 4/27/22, 1 pg.
VII. Extension Order, 5/28/22, 1 pg.
VIII. Parent’s Brief in Opposition to Motion to Dismiss, undated, 15 pgs.
IX. District’s Reply Memorandum of Law, 6/27/22, 15 pgs.
X. Email from parent, 5/3/22, 1 pg.
Footnotes
[1] References to the transcript of the pre-hearing conference are noted as “R.” References to exhibits admitted into the hearing record as evidence are noted as “Ex.” References to exhibits within exhibits are noted as “ex.” or “ex.”
[2] In an email dated May 3, 2022, the parent withdrew claims for relief designated as ¶ 6(d) and ¶ 6(e) by the District (Exs. IHO-II ex. A at 3, IHO-X). Those paragraphs sought declaratory judgement that the District had violated the IDEA by unilaterally changing the time-period during which the student was to receive after-school instruction.
[3] Following my appointment to this case, the parties moved to extend the case compliance date in this matter twice in order to accommodate witness availability and to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parent’s due process complaint and the District’s motion to dismiss. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons justified the delay in the resolution of the matter and were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 32, 392; Exs. IHO-V, IHO-VII). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
[4] Intellectual disability means significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period, that adversely affects a student’s educational performance. 8 NYCRR § 200.1(zz)(7).
[5] See Application of a Student with a Disability, Appeal No. 22-010; Application of a Student with a Disability, Appeal No. 21-249; Application of a Student with a Disability, Appeal No. 21-181; Application of a Student with a Disability, Appeal No. 21-019; Application of a Student with a Disability, Appeal No. 20-135; Application of a Student with a Disability, Appeal No. 19-121; Application of a Student with a Disability, Appeal No. 19-021; Application of a Student with a Disability, Appeal No. 18-110; Application of a Student with a Disability, Appeal No. 18-075; Application of a Student with a Disability, Appeal No. 18-064; Application of a Student with a Disability, Appeal No. 17-079; Application of a Student with a Disability, Appeal No. 17-015; Application of a Student with a Disability, Appeal No. 16-040.
[6] The term “free appropriate public education” means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.
[7] This was in addition to ten (10) hours per week of home instruction, which was described at the hearing as academic instruction in reading, math, science and social studies (R. 176, 241).
[8] While the parent disputes this point and asserts that the 2018 CSE was not designated to integrate transitional instruction within the time-parameters of the student’s special instruction (Ex. IHO-IX at 1 n.1), I do not find that this factual dispute will impede my ability to identify the student’s pendency placement or determine if the student’s pendency rights have been violated.