Application of a CHILD WITH A DISABILITY, by his parents, 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 petitioners, Anton Papakhin, Esq., of counsel
Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Thaddeus Hackworth Esq., of counsel
Petitioners appeal from a decision of an impartial hearing officer which determined that the educational program that respondent's Committee on Special Education (CSE) had recommended for their son for the 2005-06 school year was appropriate. The appeal must be dismissed.
At the outset, I must address two procedural issues. First, respondent has attached the following documents to its verified amended answer that were not introduced into evidence at the impartial hearing: 1) petitioners' due process complaint notice for an impartial hearing dated July 18, 2005; and 2) a copy of the impartial hearing system case details. Generally, documentary evidence not presented at an impartial 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 impartial 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 their amended verified reply, petitioners object to respondent's submission of the copy of the impartial hearing case details, but do not object to the submission of the due process complaint notice. A reading of the record reveals that both documents existed at the time of the impartial hearing, and therefore, they could have been offered into evidence. I decline to accept the copy of the impartial hearing system case details. However, I will accept the due process complaint notice given the absence of an objection to its submission by petitioners. I note that the due process complaint notice should have been made part of the hearing record. Petitioners have also attached the following documents that were not introduced at the impartial hearing to their amended verified reply: 1) a copy of their August 24, 2006 due process complaint notice; and 2) an affidavit signed by the parent advocate who represented petitioners during the impartial hearing. Although both documents were created after the impartial hearing, neither is necessary to render a decision, and I decline to accept the additional evidence submitted by petitioners.
Second, in their amended verified reply petitioners concede that the issue of the appropriateness of the January 2006 individualized education program (IEP) is outside the scope of review in this proceeding (Amended Reply ¶ 1). Accordingly, petitioners have withdrawn the request in their petition for a finding that the January 2006 IEP was procedurally and substantively deficient and thereby denied the child a free appropriate public education (FAPE) (Amended Reply ¶ 1). Therefore, the January 2006 IEP is not subject to review in this decision.
In the instant case, the impartial hearing was held on August 16, 2005 and May 10, 2006. At the time of the first impartial hearing date on August 16, 2005, the child was five years old and enrolled in a 12-month center-based program at the Grammercy School (Parent Ex. A at p. 1). Pursuant to an IEP developed as a result of a January 2005 Committee on Preschool Special Education (CPSE) meeting, the child was classified as a preschool student with a disability (id.). While attending the Grammercy School, the child was receiving three 30-minute sessions of individual speech-language therapy and three 30-minute sessions of individual occupational therapy, in addition to individual physical therapy two times per week for 30 minutes per session (Parent Ex. A at p. 29). In addition, he was also receiving individual speech-language therapy at home, three times per week for 60 minutes per session, as well as individual special education itinerant teacher services (SEIT) services at home for ten 60-minute sessions per week (id.).
At the time of the second impartial hearing date on May 10, 2006, the child was six years old and classified by respondent's CSE as a child with a speech-language impairment (Parent Ex. B). His eligibility for special education services and classification as a child with a speech-language impairment are not in dispute in this proceeding (8 NYCRR 200.1[zz]). When the impartial hearing reconvened in May 2006, the child was attending a 6:1+2 12-month program at the Herbert G. Birch School for Exceptional Children (Birch), a New York State approved non-public school (Parent Ex. B at p. 1). He was also receiving three 30-minute sessions of speech-language therapy, three 30-minute sessions of occupational therapy, and three 30-minute sessions of physical therapy per week (Parent Ex. B at p. 23). By virtue of a pendency order issued at the commencement of the impartial hearing, the child was also receiving ten hours per week of home-based applied behavioral analysis (ABA) instruction provided by a SEIT and three hours per week of home-based speech-language therapy (IHO Decision, p. 2; Aug. 16, 2005 Tr. p. 6).
When the child was 20 months old, he was diagnosed as having speech and language delays (May 10, 2006 Tr. p. 61). He was diagnosed as having autism at age two (May 10, 2006 Tr. p. 61). The record reflects that the child is in the "low to moderate" range developmentally, and he is described as exhibiting global developmental delays (May 10, 2006 Tr. pp. 8-9, 64). The child also has "severe dyspraxia," an oral motor speech disorder (May 10, 2006 Tr. pp. 77, 95). With respect to his play and socialization skills, he reportedly engages in inappropriate and repetitive independent play, and does not engage in independent parallel or interactive play with others (May 10, 2006 Tr. pp. 9, 29). The child also tends to isolate himself from others when left without direction (see May 10, 2006 Tr. pp. 64-65, 75). Additionally, his communication skills are estimated to be at a level between two and three years of age (May 10, 2006 Tr. p. 33). The record reflects that the child has difficulty generalizing skills from one environment in school to another environment in school (May 10, 2006 Tr. p. 11), as well as between school and home (May 10, 2006 Tr. p. 64). It was reported that he also experiences regression upon his return to school following a school vacation (May 10, 2006 Tr. p. 38).
On July 1, 2005, respondent's CSE convened for a review of the child's program (Parent Ex. B). The IEP generated as a result of this meeting recommended a 6:1+2 12-month program at Birch for the child (Parent Ex. B at p. 1). Related service recommendations included in-school delivery of three 30-minute sessions of speech-language therapy, three 30-minute sessions of occupational therapy, and three 30-minute sessions of physical therapy (Parent Ex. B at p. 23). The July 2005 IEP did not recommend the continuation of individual speech-language therapy at home as a related service, or the delivery of home-based ABA services through a SEIT, as had been recommended for the child when he was classified as a preschool student with a disability (seeParent Ex. B; Parent Ex. A at p. 29).1
On July 18, 2005, petitioners requested an impartial hearing seeking the continuation of the home-based SEIT services and home-based speech-language therapy (Answer ¶ 63). The impartial hearing commenced on August 16, 2005, and after one day of testimony concluded on May 10, 2006. Although no witness testimony was taken on August 16, 2005, the impartial hearing officer issued a pendency order, pursuant to which the child receives ten hours per week of home-based ABA instruction provided by a SEIT and three hours per week of home-based speech-language therapy pending the outcome of the impartial hearing (IHO Decision, p. 2; May 10, 2006 Tr. p. 4).
By decision dated June 1, 2006, the impartial hearing officer found that the July 2005 and January 2006 IEPs were appropriate, but she failed to articulate a basis for her findings (IHO Decision, p. 6). The impartial hearing officer concluded that, because he has transitioned from his preschool program to his current school-age program, the child was not entitled to additional home-based services (id.). She further opined that at-home services were voluntary and not educationally required for a school-age child, whose recommended placement in a state-approved non-public school provides related services in school (IHO Decision, p. 7).
Petitioners appeal asserting that the July 2005 IEP was procedurally and substantively deficient. Petitioners further contend that the impartial hearing officer applied an erroneous standard in denying their request for home-based ABA services and home-based speech-language services.
Respondent submitted a verified amended answer, with affirmative defenses, disputing petitioners' claims. Specifically, respondent asserts that petitioners' appeal must be dismissed as moot, because petitioners have received all of the relief that they have requested for the 2005-06 school year (see May 10, 2006 Tr. p. 5). Respondent contends that petitioners' claims are also moot due to the passage of time, and further notes that the July 2005 IEP has been replaced with an IEP generated as a result of the January 2006 CSE meeting. Lastly, respondent argues that petitioners' conduct caused the instant matter to be unreasonably delayed, and therefore, their claims should be barred by laches. Respondent seeks an order affirming the impartial hearing officer's decision and further requests that petitioners' appeal be dismissed in its entirety.
One of the main purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1482)2 is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][A]; Schaffer v. Weast, 126 S. Ct. 528, 531 ). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[D]; 34 C.F.R. § 300.17;3 see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.22).4 "The core of the statute" is the collaborative process between parents and schools, primarily through the IEP process (see Schaffer, 126 S.Ct. at 532). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][A]; 34 C.F.R. § 300.114[a]; 8 NYCRR 200.6[a]).
A FAPE is offered to a student when (a) the board of education complied 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 (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 ). The IDEA directs that, in general, a decision by an impartial hearing officer shall be made on substantive grounds based on a determination of whether or not the child received a FAPE (20 U.S.C. § 1415[f][E][i]). School districts are of course also required to comply with all IDEA procedures, but not all procedural errors render an IEP legally inadequate (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][E][ii]; see 8 NYCRR 200.5[j][ii]).
The Second Circuit has determined that "a school district fulfills its substantive obligations under the IDEA if it provides an IEP that is 'likely to produce progress, not regression'" and if the IEP affords the student with an opportunity greater than mere "trivial advancement" (Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 [2d Cir. 2005], quoting Walczak, 142 F.3d at 130), in other words, likely to provide some "meaningful" benefit (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132).
Respondent claims that this appeal is moot because petitioners have received all of the relief they requested for the 2005-06 school year, which has passed. Furthermore, respondent asserts that the challenged IEP has been superseded by a new IEP, created in January 2006. I concur that this appeal is moot as detailed below. 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 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. §300.324[b][i]), 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 Indep. 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, the challenged IEP is the July 2005 IEP, which has since expired, and the 2005-06 school year has ended. Moreover, an appeal from an impartial hearing officer's decision regarding a student's IEP may become moot because the IEP has been replaced, as in this case (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 the requested relief, I find that even if I were to make a determination that the program offered to the child in July 2005 was inappropriate, in this instance, it would have no actual effect on the parties. First, petitioners admit that the child has received the requested relief throughout the 2005-06 school year by virtue of a pendency order (Reply ¶ 3). The record also reveals that petitioners' claims have been rendered moot by the passage of time, as the July 2005 IEP has expired, and a new IEP has been devised which has superseded it. Accordingly, petitioners' claims will not be further addressed here. 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). Under the circumstances presented here, I decline to review the merits of petitioners' claims with respect to the July 2005 IEP. Moreover, I need not discuss the impartial hearing officer's rationale for reaching her determination of the merits of petitioners' claim
I must also address the length of the impartial hearing in the instant matter which impacted the timeliness of the impartial hearing officer's determination. State and federal regulations require an impartial hearing officer to render a decision within 45 days after the expiration of the resolution period (8 NYCRR 200.5[j]; 34 C.F.R. § 300.515[a]), unless an extension has been granted at the request of either party (8 NYCRR 200.5[j][i]; 34 C.F.R. § 300.515[c]). Respondent asserts that petitioners requested a number of adjournments that were granted, thereby extending the length of the proceeding. Given the number of petitioners' requests for extensions, respondent contends that petitioners' conduct unreasonably delayed the instant case, and that therefore, their claims are barred by laches. I decline to apply laches to the present case because the record does not indicate that respondent objected to the adjournment requests. I do note however that it was incumbent upon the impartial hearing officer to have only granted extensions consistent with regulatory constraints and to ensure that the record documented the reason for each extension (8 NYCRR 200.5[j][i]). The impartial hearing commenced on August 16, 2005 and concluded on May 10, 2006. Although no witness testimony was taken on August 16, 2005, the parties agreed to continue the impartial hearing on October 18, 2005 (Aug. 16, 2005 Tr. p. 10). The record does not contain any written adjournment requests, nor does it indicate if either party consented or objected to the additional adjournments after the August 16, 2005 impartial hearing date. Moreover, the record does not indicate why the matter was adjourned until May 10, 2006, nor does it indicate that petitioners were responsible for the delay, as respondent suggests. I also note that the impartial hearing officer did not reference the record close date in her decision as required by state regulations (see 8 NYCRR 200.5[j][v]). A review of the record reveals that the length of the impartial hearing is well beyond what was reasonably contemplated by the IDEA. One of the main policies behind the IDEA is to encourage the prompt resolution of disagreements about the education of children so that such children will not be harmed by long delays before being placed in appropriate educational settings (see 121 Cong. Rec. 37416  [remarks of Senator Williams]), and to prevent the child from falling hopelessly behind in his education (Janzen v. Knox Co. Bd. of Educ., 790 F.2d 484, 488 [6th Cir. 1986]; Dep't of Educ. of the State of Hawaii v. Carl D., 695 F.2d 1154, 1157 [9th Cir. 1983]; see also Evans v. Bd. of Educ., 930 F. Supp. 2d 83, 94 [S.D.N.Y. 1996] ["The Act ...was intended to ensure prompt resolution of disputes regarding appropriate education for disabled children"]). "[T]he IDEA's carefully structured procedure for administrative remedies, [is] a mechanism that encourages parents to seek relief at the time that a deficiency occurs and that allows the educational system to bring its expertise to bear in correcting its own mistakes" (Polera v. Bd. of Educ., 288 F.3d 478, 486 [2d Cir. 2001]). Although under the regulations parties may request extensions of time for impartial hearings under certain limited circumstances, "[n]onetheless, the brevity of the 45-day requirement indicates Congress's intent that children not be left indefinitely in an administrative limbo while adults maneuver over the aspect of their lives that would, in large measure, dictate their ability to function in a complex world" (Engwiller v. Pine Plains Cent. Sch. Dist., 110 F. Supp. 2d 236, 240 [S.D.N.Y. 2000]; see Evans, 930 F. Supp. at 94; Application of a Child with a Disability, Appeal No. 04-018 ["In granting an adjournment, a hearing officer should consider the requirement to complete the hearing and issue a decision within mandated timelines"]). Impartial hearing officers are strongly advised that compliance with the state and federal 45-day requirement is mandatory (8 NYCRR 200.5[j]; 34 C.F.R. § 300.515[a]), as is compliance with state regulations requiring the careful granting and written documentation of any extensions of time and the reasons why they were granted, as well as the inclusion of such documentation as part of the record on appeal (see 8 NYCRR 200.5[j][i]-[iv]).
I have considered the parties' remaining contentions and I find them to be without merit.
THE APPEAL IS DISMISSED.
1 The central issue on appeal is the continuation of the child's home-based SEIT services and home-based speech-language therapy. I have thoroughly reviewed the challenged IEP, and note that although the related service recommendations do not reflect the continuation of the child's home-based services, with respect to the child's present levels of performance in the speech-language domain, the July 2005 CSE recommended that he should continue to receive home-based speech-language and feeding therapy at three 60-minute sessions per week (Parent Ex. B at pp. 4, 22).
2 On December 3, 2004, Congress amended the Individuals with Disabilities Education Act, however, the amendments did not take effect until July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 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 the IDEA 2004 apply and the citations contained in this decision are to the newly amended statute.
3 The Code of Federal Regulations (34 CFR Parts 300 and 301) has been amended to implement changes made to the Individuals with Disabilities Education Act, as amended by the Individuals with Disabilities Education Improvement Act of 2004. The amended regulations became effective October 13, 2006. In this case, none of the new provisions contained in the amended regulations are applicable because all relevant events occurred prior to the effective date of the new regulations. However, for convenience, citations herein refer to the regulations as amended because the regulations have been reorganized and renumbered.
4 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, 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)