Adam Dayan, Esq.
SRO Decision 12-011
Another interesting SRO decision. Before even getting into the substance of this decision, chew on this: the underlying case with the IHO involved 2 years of litigation, 28 days of hearing, 25 extensions of time, and a 158 page decision by the IHO. 158 pages! The due process complaint was filed on August 19, 2009 and the IHO's decision was issued September 6, 2011 - more than two years later. Also noteworthy is that the IHO was not reprimanded by the SRO for abuse of the system and procedural misconduct.
The IHO ruled in favor of the school district, holding that it had provided FAPE to the child at issue. Parents appealed. The SRO states that whether the school district did or did not provide FAPE is irrelevant right now because the issue is moot. Why is it moot? Because the 2009-2010 school year is long over and the parents obtained everything they wanted through pendency (i.e. the school district was required to fund the child's private school placement during the course of this protracted litigation and, ultimately, it funded the entire 2009-2010 school year).
The parents got "everything" they wanted? Probably not, otherwise why would they be appealing. The parents were concerned about the effect of the IHO's decision to the extent that it could create a new pendency placement for the child - i.e. the program recommended by the school district would become the new pendency placement, and not the private school. It's an interesting procedural posture. Usually, an IHO decision would become final and binding on the parties if the IHO decision is unappealed. But what happens in a situation like this where the IHO decision is appealed but the SRO decides not to rule on the merits? Is a new pendency placement established?
To put it in more concrete terms, here's an example. Assume the parents continue the child at the private school for the 2012-2013 school year, and the parents file a due process claim on the first day of school - let's say September 8, 2012. By law, the school district would have to fund the child's last agreed upon placement. If the IHO decision is final and binding, that placement would presumably become a public school. Had the IHO ruled in favor of the parents (or had the SRO reversed the IHO), presumably it could have continued to be the private school...and the school district would have had to continue funding the private school until the 2012-2013 litigation concluded.
The SRO understood the implications of his decision. In fact, he cites to a federal decision (NYC Department of Education v. V.S.) which held that a particular SRO appeal "was not moot because the parties required resolution of the merits of their dispute to establish the student's pendency placement in future proceedings" - exactly the situation we have here. The SRO makes a U-turn and takes off in the completely opposite direction, stating that "this rationale regarding future pendency may be read so broadly as to apply to virtually any and all IDEA proceedings involving the educational placement or services to be provided to a student" and then rattles off a series of New York decisions and a 9th circuit one to support his decision to block the parents.
The SRO concluded with a statement that "the speed with which parties may obtain State-level pendency placement reviews on an interlocutory basis under New York's regulatory scheme strongly diminishes the need to establish future pendency placements for future school years. . . ." That statement, however, does not adequately account for the legal ramifications of refusing to rule on the merits of this case.