New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 156481

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: August 7, 2015

Actual Record Closed Date: July 1, 2016

Hearing Officer: James P. Walsh, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 7, 2015

Name Description On Behalf of

Parent Advocate — Parents

District Representative — DOE

The Matter of , (hereinafter referred to as “Student”), was initiated by a Due Process Complaint Notice filed on behalf of Parents by , dated July 8, 2015 and received by the New York City Department of Education’s Impartial Hearing Office on July 9, 2015. The undersigned had been appointed as the Impartial Hearing Officer authorized to preside over this matter by notice dated July 14, 2015.

The Due Process Complaint Notice (Exhibit A) alleged that District had failed to offer Student a free, appropriate public education (FAPE) for the 2015-2016 school year (Exhibit A). The relief sought by Parent, as contained in the Due Process Complaint Notice, sought an Order of Pendency issue, retroactive to the first day of school in for the student to with and related services of ; and ; a nullification of the 5/27/15 IEP; and the issuance of an Order requiring that the student receive or enhanced rate at the rate, as well as the related services of and for the duration of the 2015-2016 school year (Exhibit A).

On August 7, 2015, I conducted a hearing for the singular purpose of determining the Pendency program to which Student would be entitled to receive pending the completion of this administrative hearing. As a result of that hearing, I issued, on August 8, 2015, an Interim Order on Pendency (I.H.O. Exhibit I) requiring that that Student receive, as and for his Pendency program, the precise relief that Parent had sought to obtain; i.e., from , as well as the Related Services of

;

; and

. Also contained in that Interim Order

on Pendency the provision that such Order be retroactive to July 9, 2015, that date upon which Parents’ Due Process Complaint Notice was filed.

However, the 2015-2016 school year has now come to a close. Thus, Parent has already received, pursuant to the referenced Interim Order on Pendency, each and every aspect of the relief Parent seeks in her Due Process Complaint, except for the request for nullification of the 5/27/15 I.E.P. Nothing could be awarded to Parent –even if Parent were to be afforded a full hearing on Parent’s allegations or by a Decision issued thereafter - that Parent has not fully already received. As to the request for nullification of the May 27, 2015 Individualized Educational Program (I.E.P.,), as the school year has concluded, that issue no longer remains viable. As noted by the Office of State Review on a number of occasions, issues that no longer remain viable due to the passage of time become moot (A pplication of (B lank ) , Appeal No. 11-076; A pplication of (B lank )

Appeal No. 097; A pplication of (B lank ), Appeal No. 11-099). In a decision eerily appropriate to the instant proceeding, it was noted by the State Review Officer in A pplication of (B lank ), Appeal No. 11-099:

“In this case, there is no longer any controversy relating to the parties’ dispute over the placement or program offered by the district for the 2010-2011 school year. Here, even if a determination on the merits demonstrated that the district did offer the student a FAPE for the 2010-2011 school year, in this instance, it would have no actual effect on the parties because the 2010-2011 school year expired on June 30, 2011, and the student remained entitled to his pendency placement at McCarton funded by district through the conclusion of the administrative due process.”

Appeal No.11-099 at p.6

See also those cases cited by the State Review Officer in each of the above-cited decisions. As noted by the Office of State Review, in determining Application of a Student with a Disability, Appeal No. 13-238:

“As other SROs have long held in administrative reviews of IHO decisions, the dispute between the parties in an appeal 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] [noting that the challenged order was moot because there were "no indications that either party [was] still being affected in some way" by the subject of the appeal];

Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714 [1980] [concluding "that the rights of the parties cannot be affected by the determination of this appeal and it is therefore moot"]; Application of a Child with a Disability, Appeal No. 07-139). In general, cases dealing with issues such as desired changes in IEPs, specific placements, and implementation disputes may become moot at the end of the school year because no meaningful relief can be granted (see, e.g., Application of the Bd. of Educ., Appeal No. 06-044; Application of the Bd. of Educ., Appeal No. 05-058; Application of a Child with a Disability, Appeal No. 04-027; Application of a Child with a Disability, Appeal No. 00-037; Application of the Bd. of Educ., Appeal No. 00-016; Application of a Child with a Disability, Appeal No. 96-37). 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]; Application of a Child with a Disability, Appeal No. 07-

139; Application of the Bd. of Educ., Appeal No. 07-028; Application of a Child with a Disability, Appeal No. 06-070; Application of a Child with a Disability, Appeal No. 04-007).”

It is my finding and decision, after a review of Parent’s Due Process Complaint and the services afforded to Student during the 2015-2016 school year, that there remain no viable issues before me in this proceeding. Thus, it is my further finding and determination that the same must be dismissed as moot.

ORDER

Based upon the above, it is

HEREBY ORDERED that Parent’s Complaint be, and the same hereby is,

DISMISSED.

Dated: July 1, 2016

JAMES P. WALSH

Impartial Hearing Officer

JPW:

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period. ” (8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO RECORD AUGUST 7, 2015

A. Parent’s Due Process Complaint Notice, dated 7-8-15 (2 pages; Parents)

B. Statement of Agreement and Order of Impartial Hearing Officer Agoston, dated 3-26-13 (5 pages; Parents)

C. Interim Order on Pendency by I.H.O. J. Walsh, dated 7-24-14 (7 pages; Parents)

D. Student’s I.E.P. as prepared by District’s C.S.E. on 7-29-11 OTHER DOCUMENTATION REVIEWED (29 pages; Parents)

I. Interim Decision Regarding Pendency, IHO dated 8-9-15 (10 pages; Parents)