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
Educational Advocacy Service, attorney for petitioner, Anton Papakhin, Esq., of counsel
Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Emily Sweet, Esq., of counsel
Petitioner appeals from 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 and 2006-07 school years and for the issuance of a "Nickerson letter."1 The appeal must be dismissed.
At the outset, I must address three procedural matters. A petition for review to the State Review Officer must comply with the timelines specified in section 279.2 of the Regulations of the Commissioner of Education (8 NYCRR 279.13). A petition for review shall be served upon the respondent within 35 days from the date of the decision sought to be reviewed (8 NYCRR 279.2[b]). 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 35-day period (id.). A State Review Officer may excuse a failure to timely seek review within the time specified for good cause shown (8 NYCRR 279.13). The reasons for the failure to timely seek review shall be set forth in the petition (id.).
The impartial hearing officer's decision is dated April 11, 2006 and was served on petitioner by mail (Pet. ¶ 40). On May 9, 2006, petitioner served respondent with a Notice of Intention to Seek Review and on May 23, 2006 with the Petition for Review. While the Notice of Intention to Seek Review was timely, the Petition for Review was late by one day.2 In her Petition for Review, petitioner acknowledges her lateness and asks that her delay be excused in light of her efforts in May 2006 to settle this dispute with respondent, which reportedly caused her delay. By attempting to settle this matter, petitioner expended time that could have otherwise been spent preparing this appeal.3 Under the circumstances presented herein, I find that petitioner alleges good cause for her one day delay in service. Accordingly, I will exercise my discretion and I decline to dismiss the Petition on this ground.
Second, petitioner attaches to her Petition the following documents not introduced into evidence at the impartial hearing: 1) correspondence from petitioner's counsel to the Committee on Special Education (CSE) Chairperson dated May 8, 2006 requesting an immediate CSE meeting; 2) a notice of a CSE meeting scheduled to take place on May 19, 2006; 3) a written request from petitioner's counsel to the Office of State Review dated May 17, 2006 seeking a 30-day extension to serve the Petition; 4) the Office of State Review's letter to petitioner's counsel, dated May 19, 2006, denying petitioner's request for an extension of time to serve the Petition; 5) the cover letter attached to the impartial hearing officer's decision; and 6) the individualized education program (IEP) generated as a result of the May 19, 2006 CSE meeting. 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 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). In the instant case, the impartial hearing concluded on March 8, 2006, and none of the aforementioned documents existed at the time of the impartial hearing. However, under the circumstances presented here, I will accept the additional evidence because respondent did not object to their submission and consideration.
Finally, on or about June 16, 2006, subsequent to the service of respondent's Answer, petitioner submitted "Affidavits in Support of Verified Petition to the Office of State Review." There is no legal authority providing for such a supplemental submission. To the extent that petitioner references the date that respondent served the Answer, it appears that this submission is a Reply to respondent's Answer and I will treat it as such. Petitioner's Reply consists of three affidavits signed by petitioner, her attorney and the Director of Quality Control and Training from JRC. Petitioner's Reply also raises additional allegations in response to respondent's Answer. Pursuant to the Regulations of the Commissioner of Education, a reply is limited to any procedural defenses interposed by respondent or to any additional documentary evidence served with the answer (8 NYCRR 279.6). In this case, petitioner's Reply does not respond either to procedural defenses interposed by respondent or address additional documentary evidence served with the Answer, therefore, I have not considered it (Application of a Child with a Disability, Appeal No. 04-064; Application of a Child with a Disability, Appeal No. 02-009; Application of a Child with a Disability, Appeal No. 98-37).
On June 22, 2006, respondent submitted a "Verified Supplemental Submission in Further Support of Respondent's Answer and in Response to Petitioner's Submissions Dated June 14, 2006." There is no legal authority providing for such a submission. Therefore, I decline to consider respondent's submission.
The student was 16 years old and although recommended to receive home instruction, he was not receiving educational services at the time of the impartial hearing in March 2006 (Tr. pp. 62-63; Dist. Ex. 13). His eligibility for special education programs and services as a student with an emotional disturbance (see 8 NYCRR 200.1[zz]) is not in dispute.
The student exhibited developmental delays as a young child and has received special education services since preschool (Tr. pp. 54-55). He was diagnosed with an attention deficit hyperactivity disorder in kindergarten (Parent Ex. G). After exhibiting disruptive behavior with peers and significant difficulty with a regular third grade public school program, the student attended a private day treatment program from fourth through ninth grade (Tr. pp. 55-56; Parent Ex. G). This program, which offered him a small classroom setting, was described as "structured and therapeutic" (Tr. pp. 55-56). After ninth grade, the student aged out of the private day treatment program, and for tenth grade during the 2004-05 school year, he attended a private Catholic school (Tr. p. 56). Petitioner reported that the student was suspended from the Catholic school three times during that year for fighting, bringing a knife to school and exhibiting inappropriate behavioral outbursts (Tr. p. 57).
In spring 2005, a psychoeducational evaluation of the student was conducted (Parent Ex. F). Administration of the Wechsler Adult Intelligence Scale - Third Edition (WASI-III) yielded a full scale score of 112, placing his general level of intellectual ability in the average to high average range compared to his peers (Parent Ex. F at p. 3). Results of the administration of the Woodcock Johnson III Tests of Achievement (WJ-III) indicated that the student's academic skills were in the high average range and his ability to apply those skills was in the average range (Parent Ex. F at p. 6). During the evaluation, the student presented himself as a friendly, engaging adolescent (Parent Ex. F at p. 4). However, projective testing revealed characteristics of a person who may possess feelings of social inadequacy and insecurity (Parent Ex. F at p. 6).
Petitioner reported that her son has received counseling services from a number of counselors, including a psychiatrist (Tr. pp. 57-58; Dist. Ex. 2). The student's psychiatric summary report, dated August 2004 to May 2005, reported a diagnosis of an attention deficit disorder - combined type, in addition to a history of a learning disability (Dist. Ex. 2). The report stated that the student exhibited inattention, impulsivity, distractibility and disorganization as well as academic and behavioral problems (id.). The report also indicated that the student frequently argued with petitioner and that he was physically aggressive toward her (id.). The psychiatrist concluded that the student had regressed since the past year and that he would benefit from a smaller class setting, therapy and medication administration (id.).
In June 2005, petitioner wrote two letters to respondent's CSE requesting assistance in finding an appropriate placement for her son (Tr. p. 60). In response, respondent sent out packages of information about the student to 12 nonpublic day treatment programs (Tr. p. 61). The student was not accepted in any of these programs (Tr. p. 61; Parent Ex. J). In mid-September 2005, the student began an interim plan of home instruction (Tr. p. 63).
By letter dated November 2, 2005, a psychiatrist from St. Vincent Catholic Medical Center wrote to a member of respondent's high school placement team to request an emergency CSE meeting to review the student's educational and emotional needs (Parent Ex. G). The psychiatrist reported that the student refused to attend therapy and home instruction (id.). He also reported that he stayed out late without parental permission and that the student was extremely argumentative with petitioner at home (id.). The psychiatrist stated that the student had pushed his mother in the recent past (id.). In July 2005, he was hospitalized in an adolescent psychiatric unit for punching his mother in the eye and for exhibiting unmanageable behavior (Parent Ex. G; Pet. ¶ 15). The psychiatrist recommended a structured therapeutic educational setting for the student, and requested an evaluation for residential level placement (Parent Ex. G).
Later in November 2005, petitioner unsuccessfully attempted to acquire a Person in Need of Supervision (PINS) petition for her son, due to his verbally abusive and intimidating behavior, as well as his inconsistent therapy and school attendance (Tr. pp. 63-64; Parent Ex. K). Although petitioner reported that the student was non-compliant with counseling services, petitioner could not obtain a PINS petition for him because he was not a runaway (Tr. p. 92). In December 2005, the student stopped attending home instruction (Tr. p. 63). Later that month, respondent's CSE conducted a social history update, which indicated that petitioner and the student's psychiatrist agreed that the student should be placed in a residential treatment program (Parent Ex. D at p. 1). At that time, petitioner reported that the student displayed poor impulse control and decision making skills (Parent Ex. D at p. 2). She also noted that her son would disappear for a few days, while she would not know his whereabouts, and that he was involved in illegal substance abuse (id.).
On January 4, 2006, per petitioner's request, a reevaluation of the student's academic achievement was conducted (Parent Ex. E). The school psychologist noted that the student exhibited a "normal affect," and that his expressive language was appropriate to the setting (Parent Ex. E at p. 1). She further reported that he remained friendly, polite, well mannered and cooperative throughout the testing session (Parent Ex. E at p. 2). According to the school psychologist's report, the student stated that he had been out "in the streets" at 2:30 a.m. with unsavory individuals who might place him in risky situations (id.). The report also stated that he appeared to have "little insight into how these actions might place in harm's way" (id.).
The CSE convened on January 5, 2006 (Tr. p. 39; Parent Ex. C). The resultant IEP indicated that the student was classified as a student with an emotional disturbance (Parent Ex. C). The CSE deferred the decision regarding his placement to the Central Based Support Team (CBST) (Parent Ex. C at p. 1). The CBST identified four nonpublic schools that would consider or accept the student for placement: Lake Grove, George Junior Republic, Hawthorne Cedar Knolls (HCK) and Greenburg North Castle (Tr. p. 26).
On January 24, 2006, the CSE reconvened in order to recommend a specific nonpublic school for the student (Dist. Ex. 14). The record indicates that petitioner did not attend the January 24, 2006 CSE meeting, although the CSE attempted to contact her by telephone (Dist. Ex. 14 at p. 2). The CBST recommended that the student be placed at HCK for the remainder of the 2005-06 school year (Dist. Ex. 3). The IEP generated as a result of this meeting recommended that the student be placed in a 12-month school year 12:1+1 class at HCK (Dist. Ex. 14 at p. 1). Related services included individual weekly counseling in addition to weekly group counseling (Dist. Ex. 14 at p. 9).
By an e-mail dated January 24, 2006, the same day that the CSE convened, petitioner requested an impartial hearing (Parent Ex. H). In her request for an impartial hearing, petitioner asserted that JRC was the most appropriate placement for her son. She described the environment at JRC as "safe, structured and secure." Petitioner further noted that she intended "to deny any other suggested placement" for her son. She asserted that she would not consider any residential placements for her son in New York State, because these places would not retain him, if he did not want to be there.
An impartial hearing took place on March 8, 2006. At the impartial hearing, petitioner asserted that JRC was appropriate to meet her son's needs. She asked the impartial hearing officer to amend the IEP to name JRC as the student's placement or, in the alternative, to order tuition funding for the 2005-06 school year, so that the student could attend JRC. During the impartial hearing, counsel for petitioner moved to amend the request for an impartial hearing (Parent Ex. B). In her amended request for an impartial hearing, petitioner asked the impartial hearing officer to issue an interim order naming JRC as the student's placement for the remainder of the 2005-06 school year (Parent Ex. B at p. 2). In the alternative, petitioner asked the impartial hearing officer to order tuition funding for the 2005-06 and 2006-07 school years, thereby allowing the student to attend JRC (id.). The impartial hearing officer did not accept petitioner's amended request for an impartial hearing (Tr. p. 16).4 Respondent contended that the placements recommended by the CBST were appropriate, secure and tailored to fit the student's needs. Respondent further argued that JRC was a highly restrictive setting that was not conducive to the student's needs.
By decision dated April 11, 2006, the impartial hearing officer found that the IEP developed as a result of the January 24, 2006 CSE meeting "was a nullity because the parent was not present at the CSE meeting and the district did not provide a detailed record of its attempts to contact the parent to find a mutually agreed upon time and place for the meeting" (IHO Decision, p. 4). However, he also concluded that petitioner failed to prove that the JRC was an appropriate placement for her son (id.). The impartial hearing officer determined that petitioner failed to demonstrate that the educational program offered at JRC was the least restrictive environment for the student (id.). Lastly, he went on to hold that petitioner "not only failed to show that the educational program offered at JRC was an appropriate placement for her son, but also failed to show that such relief was equitable" (IHO Decision, p. 5). In light of the foregoing, the impartial hearing officer denied petitioner's request for a Nickerson letter (IHO Decision, p. 6).
Per the written request of petitioner's attorney, on May 19, 2006, the CSE convened for an emergency meeting to discuss locating an appropriate residential placement for the student (Pet. Ex. 1; Pet. Ex. 2). A new IEP was developed as a result of the May 2006 CSE meeting for the 2006-07 school year (Pet. Ex. 6).
On appeal, petitioner alleges, inter alia, that the impartial hearing officer erred in finding that she failed to establish that JRC was an appropriate placement for the student. Accordingly, she seeks an order to amend the student's IEP naming JRC as her son's placement for the 2005-06 and 2006-07 school years. Respondent submitted an Answer denying petitioner's assertions, and requesting that petitioner's appeal be dismissed in its entirety.
The initial question that I must address is whether the central issue in this appeal, i.e., the appropriateness of the educational program sought by petitioner for the 2005-06 school year, has become moot by the passage of time. A memorandum from the board of education indicates that HCK was approved for the student for the 2005-06 school year (Dist. Ex. 3). The impartial hearing addressed the appropriateness of programming and placement for the 2005-06 school year. Neither the IEP for the 2006-07 school year or placement for 2006-07 were at issue during the impartial hearing. I also note that the school year in question was virtually over by the time that this appeal was commenced by petitioner. Moreover, a new IEP has been developed as a result of the May 2006 CSE meeting for the 2006-07 school year which has not been the subject of due process procedures (Pet. Ex. 6; see 8 NYCRR 200.5).
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]). In general, appeals dealing with issues such as appropriateness of related services, desired changes in IEPs, specific placements, and implementation disputes are 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). The Individuals with Disabilities Education Act (IDEA) requires a CSE to review and if necessary revise a student's IEP at least annually (see 20 U.S.C. § 1414[d][A][i]; 34 C.F.R. §300.343[c]), and each new IEP supersedes the prior IEP in addressing the child's needs (see Application of a Child with a Disability, Appeal No. 06-027; Application of the Bd. of Educ., Appeal No. 05-063); hence, administrative decisions rendered concerning school years since expired may no longer appropriately address the current needs of the student (Application of a Child with a Disability, Appeal No. 04-007). A claim may not be moot, however, despite the end of a school year for which the child'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 ; Lillbask, 397 F.3d at 84-85; Daniel R.R. v. El Paso Indp. Sch. Dist., 874 F.2d 1036 [5th Cir. 1989]; Application of a Child with a Disability, Appeal No. 04-038).
The exception applies only in limited situations (City of Los Angeles v. Lyons, 461 U.S. 95, 109 ), and is severely circumscribed (Knaust v. City of Kingston, 157 F.3d 86, 88 [2d Cir. 1998]). Controversies are "capable of repetition" when there is a reasonable expectation that the same complaining party would be subjected to the same action again (Weinstein v. Bradford, 423 U.S. 147, 149 ). To create a reasonable expectation of recurrence, repetition must be more than theoretically possible (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 (id.). In the instant case, while a dispute over the student's placement for 2005-06 school year will not arise again, his placement for the 2006-07 school year may be disputed. However, given mandated timelines for due process procedures, a dispute over placement for the 2006-07 school year will not evade review upon presentation of a timely due process complaint pertaining to the May 2006 IEP.
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. 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 light of the absence of any live controversy relating to relief, or claims involving issues that survive mootness as noted above, and given the fact that the 2005-06 school year has passed and a new IEP has been devised which has superseded the 2005-06 IEP, I find that even if I were to make a determination that the student's placement from a former school year was appropriate, in this instance, it would have no actual effect on the parties, and will not be further addressed here. The 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). Accordingly, under the circumstances presented here, I decline to review the merits of petitioner's claim with respect to the 2005-06 school year.
I now turn to petitioner's claims with respect to the 2006-07 school year. A review of the record indicates that during the impartial hearing petitioner moved to amend her impartial hearing request to seek relief for the 2006-07 school year (Tr. p. 16; Parent Ex. B at p. 2). I note that the impartial hearing officer denied petitioner's request to amend the due process complaint, which included a request for payment of tuition costs at JRC for the 2006-07 school year (Tr. p. 16). Accordingly, petitioner's claims that pertain to the 2006-07 school year were not at issue during the impartial hearing. I also note that in her Petition for Review, petitioner did not appeal the impartial hearing officer's ruling to deny her request to amend her due process complaint. Pursuant to federal and State law, an impartial hearing officer's decision is binding upon both parties unless appealed to the State Review Officer (N.Y. Educ. Law § 4404; 8 NYCRR 200.5[j][v]; see 20 U.S.C. § 1415[i][A]; 34 C.F.R § 300.510[a]). Having failed to appeal from that portion of the impartial hearing officer's decision, respondent is bound by that portion of the decision (see Application of the Bd. of Educ., Appeal No 06-026; Application of a Child with a Disability, Appeal No. 05-124; Application of a Child with a Disability, Appeal No. 00-057; Application of the Bd. of Educ., Appeal No. 98-7). Moreover, although petitioner has, on appeal, submitted the May 2006 IEP pertaining to the 2006-07 school year, and asks that its appropriateness be reviewed, I must decline to do so. Under the doctrine of exhaustion of remedies the appropriateness of the May 2006 IEP must first be reviewed by an impartial hearing officer prior to review by a State Review Officer (NY Educ. Law § 4404; 8 NYCRR 200.5[k]; see J.S. v. Attica Central Schools, 386 F.3d 107 [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 May 2006 IEP developed for the 2006-07 school year (see N.Y. Educ. Law § 4404). Based on the foregoing, petitioner's claims that pertain to the 2006-07 school year are beyond the scope of my review because they were not raised below (Application of a Child with a Disability, Appeal No. 05-080; Application of a Child with a Disability, Appeal No. 04-043; Application of a Child with a Disability, Appeal No. 04-019; Application of the Bd. of Educ., Appeal No. 02-024).
I have considered the parties' other claims and I find them to be without merit.
THE APPEAL IS DISMISSED.
1 A Nickerson letter is a letter from the Department of Education (DOE) to a parent authorizing the parent to place the child in an appropriate special education program in any state-approved private school, at no cost to the parent (see Jose P. v. Ambach, No. 79 Civ. 270 [E.D.N.Y. Jan. 5, 1982], 553 IDELR 298). The remedy of a Nickerson letter is intended to address the situation in which a child has not been evaluated or placed in a timely manner (see Application of a Child with a Disability, Appeal No. 02-075; Application of a Child with a Disability, Appeal No. 00-092).
2 Calculating 35 days from the date of the decision (April 11, 2006), excluding the date of mailing and subsequent 4 days thereto, the last day for service of the petition for review was May 20, 2006; however, because May 21, 2006 fell on a Sunday, the final day to serve the petition for review in this case was Monday, May 22, 2006 (see 8 NYCRR 279.11).
3 In the Petition, counsel for petitioner asserts that he exhausted time which could have been spent preparing this appeal because he accompanied petitioner to the May 2006 CSE meeting in an effort to resolve the case (Pet. ¶¶ 42, 43).
4. The IDEA was amended effective July 1, 2005 (see Pub. L. No. 108-446, 118 Stat. 2647 [H.R. 1350]  [codified as amended at 20 U.S.C. § 1400, et. seq.]). Since the underlying events in this appeal all occurred subsequent to that date, all references to the IDEA used herein refer to the newly amended provisions of the IDEA 2004, unless otherwise specified. I further note that, pursuant to the new provisions of the IDEA, a party may amend its due process complaint notice if the other party consents in writing to such amendment or if the impartial hearing officer grants permission, except that the impartial hearing officer may only grant such permission at any time not later than five days before a due process hearing occurs (see, 20 U.S.C. § 1415[c][E][II]).