The University of the State of New York Seal
The State Education Department
State Review Officer

No. 06-060

 

Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education


Appearances:
Educational Advocacy Service, attorney for petitioner, Anton Papakhin, Esq., of counsel

Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Janice Casey Silverberg, Esq., of counsel


DECISION


               
Petitioner appeals from the part of the decision of an impartial hearing officer which denied her request to place her son at the Judge Rotenberg Center (JRC) for the 2005-06 twelve-month school year and the part which ordered the student to continue attending the Brooklyn School for Collaborative Studies, also known as PS 448 for the remainder of the 2005-06 twelve-month school year. The appeal must be dismissed.

                At the commencement of the impartial hearing on March 3, 2006, the student was 13 years old and in the sixth grade at PS 448 (Dist. Ex. 9 at p. 1; March 3, 2006 Tr. p. 1; March 7, 2006 Tr. pp. 127-28). The student's eligibility for special education programs and services as a student with an emotional disturbance is not in dispute on this appeal (see 8 NYCRR 200.1[zz][4]).

                The student's individualized education program (IEP) that was at issue at the hearing below was developed on November 3, 2005 by respondent's Committee on Special Education (CSE) (Dist. Ex. 9). The resultant IEP recommended a state approved, 12-month residential program with a staffing ratio of 8:1+1 in a structured therapeutic environment with the related services of counseling and speech-language therapy (Dist. Ex. 9 at pp. 1, 9-11). The CSE deferred placement of the student to the Central Based Support Team (CBST) (Dist. Ex. 9 at p. 2). On or about January 6, 2006, the student was referred to the CBST for the selection of a placement (March 3, 2006 Tr. pp. 16-17).

                Respondent's CBST recommended placement at the Hawthorne-Cedar Knolls School (HCK), which accepted the student on or about January 25, 2006 (Dist. Ex. 6). HCK is a private school with a residential program located in Hawthorne, New York that has been approved by the Commissioner of Education to contract with school districts to instruct students with disabilities (see 8 NYCRR 200.7, 200.1[d]). By letter dated February 1, 2006, petitioner requested an impartial hearing concerning her son's placement in a residential program (Parent Ex. B). The February 1, 2006 letter formally expressed petitioner's desire for respondent to place her son at JRC, and indicated her disapproval of the in-state residential placements proposed by respondent (id.). JRC is a private residential school located in Canton, Massachusetts which has been approved by the Commissioner of Education to contract with school districts to instruct students with disabilities (see 8 NYCRR 200.7, 200.1[d]).

                An impartial hearing was held on March 3, 7, 13, and 17, 2006 (March 3, 2006 Tr. p. 1; March 7, 2006 Tr. p. 68; March 13, 2006 Tr. p. 182; March 17, 2006 Tr. p. 4). By decision dated May 3, 2006, the impartial hearing officer found that JRC was an inappropriate placement for the student and that respondent's placement recommendation at HCK was the least restrictive placement (IHO Decision, pp. 23-24). The impartial hearing officer made her determination contingent on HCK conducting a personal interview of the student to confirm that HCK could offer the student an appropriate program (IHO Decision, p. 24). In the event that HCK determined after meeting petitioner's son that it could not suitably place him in its residential program, the impartial hearing officer ordered the continuation of the student's placement at PS 448 for the remainder of the student's 2005-06 twelve-month school year (IHO Decision, p. 25).

                By letter dated May 19, 2006, the admissions director of HCK notified respondent that it decided to withdraw its acceptance of petitioner's son in its residential program after interviewing the student on May 16, 2006 (Pet. Ex. Q).1 During the student's interview with HCK, the record reflects that the student became "extremely angry," made threats of violence, and told HCK that he refused to attend its program (id.). Immediately following the interview with the HCK representative, the student was hospitalized (see Pet. Ex. U).

                On May 26, 2006, petitioner served respondent with a Notice of Intention to Seek Review and served a Verified Petition on June 9, 2006, requesting that the State Review Officer overturn the decision below and order respondent to place the student at JRC at public expense for the remainder of the 2005-06 school year and for the 2006-07 school year. Respondent filed a Verified Answer on June 19, 2006 requesting that the impartial hearing officer's findings of fact and decision be affirmed, asserting inter alia, that New York law and the Regulations of the Commissioner of Education require consideration of appropriate, available in-state schools before the consideration of out-of-state, approved schools (see Social Services Law 483-d; 8 NYCRR 200.6[i][1][iii][e]). Petitioner filed a Verified Reply on June 23, 2006.

                On or about July 12, 2006, the Office of State Review received an unsolicited letter from respondent's attorney stating that the student is currently attending the residential program at Berkshire Farm Union Free School District (Berkshire Farm), having been placed there directly from the psychiatric unit of the local hospital where he had been hospitalized (Letter from Silverberg to Kelly of 7/12/06). The July 12, 2006 letter indicates that a copy of the letter was sent by facsimile and mail to petitioner's attorney (id. at p. 2). It advises that Berkshire Farm interviewed the student and accepted the student, and that respondent's CSE reconvened on July 6, 2006 with petitioner and her attorney present, and the July 6, 2006 CSE added Berkshire Farm to the student's IEP (id. at p. 1). Respondent also asserts in the July 12, 2006 letter that the appeal should be dismissed because of mootness (id. at pp. 1-2).

                On July 19, 2006, petitioner's attorney submitted a response to respondent's letter, contending that the appeal is not moot and that the issues raised in the appeal are likely to be repeated (Petitioner's Response to Respondent's Letter to State Review Officer Dated 7/12/06 [hereinafter "Response"], at pp. 3-4). Petitioner's Response confirms that respondent's CSE reconvened on July 6, 2006 and the resultant IEP recommended Berkshire Farm for the student's placement (id. at p. 2); however, it notes that petitioner refused to sign the resultant IEP that recommended 12 months residential placement at Berkshire Farm (id.). Although the Response asserts that "petitioner has never consented" to placement of her son at Berkshire Farm (id. [emphasis added]), the Response indicates on multiple occasions that petitioner agreed to place her son at Berkshire Farm for at least a temporary basis (see id. at p. 2 ["petitioner reluctantly agreed to place [the student] at the Berkshire Farms on the temporary basis . . ."], p. 3 ["Petitioner temporarily accepted residential placement at the Berkshire Farm School . . ."]). Berkshire Farm is a private school with a residential program located in Canaan, New York that has been approved by the Commissioner of Education to contract with school districts to instruct students with disabilities (see 8 NYCRR 200.7, 200.1[d]).

                In light of the events that occurred after the impartial hearing officer rendered her decision on May 3, 2006, I find that the appeal is moot. 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]). An exception to the mootness doctrine exists if the issue is "capable of repetition, yet evading review" (see Honig v. Doe, 484 U.S. 305, 318 [1988]; Lillbask, 397 F.3d at 84-85; Application of a Child with a Disability, Appeal No. 04-038). The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. 1400 1482)2 requires a CSE to review and if necessary revise a child's IEP at least annually (see 20 U.S.C. 1414[d][4][A][i]; 34 C.F.R. 300. 343[c][1]), and each new IEP supersedes the prior IEP (see Application of a Child with a Disability, Appeal No. 06-027; Application of the Bd. of Educ., Appeal No. 05-063). Moreover, an appeal from an impartial hearing officer's decision regarding a student's IEP may become moot because the IEP has been replaced (Robbins v. Maine School Admin. Dist. No. 56, 807 F. Supp. 11 [D. Me., 1992]; Application of a Child with a Disability, Appeal No. 06-046; Application of a Child with a Disability, Appeal No. 02-011; Application of a Child with a Disability, Appeal No. 93-27; Application of a Child with a Handicapping Condition, 29 Ed. Dept. 348).

                In the instant case, petitioner requests that a State Review Officer order placement of her son at JRC. Yet, in the few weeks that have transpired since the close of the impartial hearing, a number of additional significant events have occurred. HCK withdrew its acceptance of the student (Pet. Ex. Q) and the student was hospitalized (Pet. Ex. U). The parties participated in a subsequent CSE meeting on July 6, 2006 where the CSE recommended Berkshire Farm as the appropriate placement for the student and the student is now enrolled there (Letter from Silverberg to Kelly of 7/12/06; Response). Even if done reluctantly or intended only as a temporary placement, petitioner nonetheless agreed to the placement of her son at Berkshire Farm upon the student's discharge from the psychiatric hospital (see Response at pp. 2-3). Based on the foregoing, I find that even if I were to make a determination that the student's placement at HCK pursuant to the former November 3, 2005 IEP did not offer a free appropriate public education (FAPE), and that placement at JRC would have been appropriate at the time the IEP was formulated, in this instance it would have no actual effect on the parties, because there has been a new IEP developed on July 6, 2006 that superseded the November 3, 2005 IEP and the student is now in a placement that both parties have agreed to accept. A State Review Officer is not required to make a determination which will have no actual impact upon the parties (Application of the Bd. of Educ., Appeal No. 06-044; Application of a Child with a Disability, Appeal No. 02-086; see also Application of the Bd. of Educ., Appeal No. 04-006; Application of a Child with a Disability, Appeal No. 02-011; Application of a Child with a Disability, Appeal No. 97-64).

                I am also not persuaded by petitioner's contention that the "capable of repetition, yet evading review" exception to the doctrine of mootness is applicable here. Even if this situation is repeated, it is not capable of evading review. Petitioner's Response asserts that if the instant appeal is deemed moot then "petitioner will be forced to appeal the July 6, 2006 IEP to an impartial hearing officer due to the inappropriateness of Berkshire Farms School for [the student]" (Response at p. 4). Given mandated timelines for due process procedures, a dispute over the student's current placement at Berkshire Farm will not evade review upon presentation of a timely due process complaint pertaining to the July 6, 2006 IEP (8 NYCRR 200.5). Moreover, the appropriateness of the student's current IEP and present placement at Berkshire Farm is not currently before me and has not been properly raised at an impartial due process hearing (8 NYCRR 200.5[j]). Under the doctrine of exhaustion of remedies, the appropriateness of the July 6, 2006 IEP must first be reviewed by an impartial hearing officer prior to review by a State Review Officer (N.Y. Educ. Law 4404[1],[2]; 8 NYCRR 200.5[k]; see J.S. v. Attica Central Schools, 386 F.3d 107, 112 [2d Cir. 2004] ["It is well settled that the IDEA requires an aggrieved party to exhaust all administrative remedies before bringing a civil action in federal or state court. The process includes review by an impartial due process hearing officer and an appeal from that hearing"]). Additionally, the jurisdiction of a State Review Officer is limited to review of a determination of an impartial hearing officer, and in the instant case, such a determination has not been made pertaining to the appropriateness of the July 2006 IEP developed for the 2006-07 school year (see N.Y. Educ. Law 4404[2]; 8 NYCRR 200.5[k]).

                Based on the foregoing, I find that the adjudication of this appeal concerning the placement of petitioner's son at JRC is moot and decline to review the appeal on the merits. I also find that the portion of the impartial hearing officer's order that directed the student be placed at PS 448 in the event that HCK could not confirm its acceptance of the student is also now moot since the parties have reached an agreement on an alternative placement.

                    I have considered petitioner's remaining contentions and find them to be without merit.



                    THE APPEAL IS DISMISSED.


 

Dated:                    Albany, New York                                                                    __________________________

                                July 21, 2006                                                                                    PAUL F. KELLY
                                                                                                                                  STATE REVIEW OFFICER

 

1 Both parties have submitted various documents with their pleadings and request that these documents be considered as additional evidence (see Pet. Exs. Q, R, S, T, U and letter attached to petitioner's Reply; District Ex. 15).  Generally, documentary evidence not presented at a hearing may be considered in an appeal from an impartial hearing officer's decision only if such additional evidence could not have been offered at the time of the hearing and the evidence is necessary in order to render a decision (see, e.g., Application of the Bd. of Educ., Appeal No. 06-044; Application of the Bd. of Educ., Appeal No. 06-040; Application of a Child with a Disability, Appeal No. 05-080; Application of a Child with a Disability, Appeal No. 05-068; Application of the Bd. of Educ., Appeal No. 04-068).  Here, in the exercise of my discretion, I will accept petitioner's exhibits Q and U that were annexed to her Petition because it is evidence that occurred subsequent to the impartial hearing, respondent does not object to its submission, and the evidence indicates that the impartial hearing officer's decision to the extent that it determined HCK to be the least restrictive placement is now moot because HCK withdrew its acceptance after personally meeting the student.  As to the other documents, I decline to accept them on the merits because they are not necessary for me to render my decision and they are objected to by the opposing party. 

2 On December, 3, 2004, Congress amended the IDEA, however, the amendments did not take effect until July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 (IDEA 2004), Pub. L. No. 108-446, 118 Stat. 2647).  As the relevant events in the instant appeal took place after the effective date of the 2004 amendments, the provisions of IDEA 2004 apply and the citations contained in this decision are to the newly amended statute.