05-086

            Petitioner¹ appeals from an impartial hearing officer’s interim order determining the student’s pendency placement during a due process proceeding challenging the appropriateness of respondent’s recommended program for summer 2005 and the 2005-06 school year.  The appeal must be dismissed.

            In the instant case, at the time of the July 19, 2005 impartial hearing, the student was 12 years old and eligible for special education as a student with an other health-impairment (OHI) (Dist. Ex. 2; see 8 NYCRR 200.1[zz][10]).²  The student’s classification is not in dispute. 

            By letter dated June 28, 2005, petitioner requested an impartial hearing regarding the student’s program and placement for summer 2005 and the 2005-06 school year (Parent Ex. A).  In the hearing request petitioner stated she disagreed with the findings of the Committee on Special Education (CSE) and sought review of her request for more intensive services for her son. The impartial hearing officer was appointed on July 6, 2005 (Tr. p. 2).  By letter dated July 11, 2005, the impartial hearing officer memorialized a July 8, 2005 prehearing conference call that she initiated between the parties advising that a hearing would be necessary, pursuant to petitioner’s counsel’s request, to determine the issue of the student’s placement during the course of the due process proceedings  (IHO Ex. 1).  The impartial hearing officer held another conference call with the parties on the morning of July 19, 2005, and pursuant to petitioner’s counsel’s request for an “immediate hearing,” the parties agreed to conduct an impartial hearing that evening at 6:30 p.m. (Tr. pp. 3-4).   At the impartial hearing that evening, petitioner’s counsel did not appear personally but sent a representative who objected to the timing of the impartial hearing arguing that petitioner did not have “24 hour notice.” The representative also stated that petitioner’s counsel “knew she wouldn’t be able to be here.” The impartial hearing officer noted that the hearing had been scheduled that evening at the request of petitioner’s counsel earlier that day (Tr. pp. 4-6).  The impartial hearing officer, after noting that she drove two hours to reach the hearing location, stated that petitioner’s counsel said during the morning conference call that she “needed” the hearing “today” and quoted petitioner’s counsel as stating “We’ll go forward at 6:30 tonight.” The impartial hearing officer correctly declined to adjourn the matter.  The representative sent by petitioner’s counsel did not have the case file and met petitioner for the first time at the hearing (Tr. pp. 7-9).  The hearing proceeded with the only witness being petitioner (Tr. pp. 46-53).  The only exhibits entered into evidence were petitioner’s impartial hearing request (Parent Ex. A), the impartial hearing officer’s July 11, 2005 letter to the parties (IHO Ex. 1) and the student’s 2004-05 individualized education program (IEP) (Dist. Ex 2).³    

             In an interim order dated July 24, 2005, the impartial hearing officer found that petitioner submitted no evidence to support her contention that the student’s 2004 summer program was the last agreed upon placement (IHO Decision, p. 4).

          This appeal ensued pursuant to 8 NYCRR 279.10[d].  On appeal, petitioner requests that the impartial hearing officer’s interim order be vacated and seeks a determination that the student’s pendency placement for summer 2005 is a full-day special education class with language arts instruction, counseling, an aide, nursing services and trips into the community.   

            By letter to the Office of State Review, dated September 23, 2005, which was copied to counsel for petitioner, counsel for respondent advised that petitioner had withdrawn her request for an impartial hearing. Respondent’s counsel’s letter had correspondence attached, dated September 13, 2005, from petitioner’s counsel to the impartial hearing officer notifying the impartial hearing officer that petitioner had withdrawn her request for an impartial hearing.  No response has been received by the Office of State Review from petitioner disputing the fact that petitioner’s due process request for an impartial hearing had been withdrawn.

          The pendency provisions of the Individuals with Disabilities Education Act (IDEA) and the New York State Education Law require that a child remain in his or her "then-current educational placement," unless the child’s parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the child (20 U.S.C. § 1415[j]; 34 C.F.R. § 300.514; N.Y. Educ. Law § 4404[4]).  Pendency has the effect of an automatic injunction, which is imposed without regard to such factors as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Drinker v. Colonial School Dist., 78 F.3d 859 [3d Cir. 1996]; Zvi D. v. Ambach, 694 F.2d 904 [2d Cir. 1982]).

            In general, a case becomes moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome (Murphy v. Hunt, 455 U.S. 478, 481 [1982]). In determining whether a controversy has become moot, the relevant inquiry is whether the facts alleged, under all the circumstances, show that there is a substantial controversy of sufficient immediacy and reality to warrant relief (Christopher P. v. Marcus, 915 F.2d 794, 802 [2d Cir. 1990]).  Consistent with the mootness doctrine, State Review Officers have determined that there is no need to decide issues on appeal that are no longer in controversy, or to make a determination that would have no actual effect on the parties (Application of a Child with a Disability, Appeal No. 05-018; Application of a Child with a Disability, Appeal No. 02-110; Application of a Child with a Disability, Appeal No. 98-73; Application of a Child Suspected of Having a Disability, Appeal No. 95-60).

           Since petitioner has withdrawn her underlying request for an impartial hearing challenging the student’s program and placement for the summer 2005 and the 2005-06 school year, I find that petitioner’s appeal of the interim order determining the student’s pendency placement during the due process proceeding is moot.

THE APPEAL IS DISMISSED.