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No. 91-17

 

Application to reopen the appeal of a CHILD WITH A HANDICAPPING CONDITION, by his parent, for review of a determination of a hearing officer relating to the educational program provided by the Board of Education of the City School District of the City of New York

Appearances:

Michael G. Flanagan, Esq., attorney for petitioner

Hon. Victor A. Kovner, Corporation Counsel, attorney for respondent, Carole A. Paynter, Esq., of counsel

 

DECISION

This is an application by petitioner to reopen the decision in Appeal 91-7, dated March 22, 1991, in which I found that a hearing officer had properly conducted a hearing on January 15, 1991 with regard to respondent's attempts to comply with the provisions of my decision in Appeal 90-18, and that respondent could reasonably insist upon a re-evaluation of the pupil. Petitioner seeks to reopen the decision in Appeal 91-7, upon the ground that such decision was rendered under a misapprehension of the facts. Petitioner's application to reopen must be denied.

The application is made pursuant to the provisions of 8 NYCRR 279.1 (a) and 8 NYCRR 276.8. 8 NYCRR 279.1 (a) incorporates by reference the provisions of Parts 275 and 276 of the Regulations of the Commissioner of Education pertaining to appeals to the Commissioner of Education. Therefore an application to reopen a decision of the State Review Officer will be considered pursuant to the criteria set forth in 8 NYCRR 276.8. That regulation provides that a party seeking to reopen an appeal must demonstrate that the decision in such appeal was rendered under a misapprehension of fact, or that there is new and material evidence which was not available at the time of the original decision.

In my decision in Appeal 91-7, I noted that subsequent to my prior decision in Appeal 90-18, the respondent's committee on special education (CSE) scheduled a meeting with petitioner to be held on December 27, 1990, and that petitioner's attorney advised the CSE that petitioner would not attend such meeting. Petitioner now asserts that the record before the hearing officer "fails to reveal that the parent or her attorney were ever notified of a CSE [meeting] scheduled for December 27, 1990."

The record before me in Appeal No. 91-7 included as Parents' Exhibit 6 at the hearing held on January 15, 1991, a letter dated December 26, 1990 from petitioner's attorney to Mr. Henry Rose of the CSE. In material part, that letter reads as follows:

"Please be advised that my client will not attend your 'scheduled' meeting tomorrow and will not do so until such time as I have spoken with your attorneys."

In opposing the application to reopen, respondent's attorney asserts that petitioner has not established that a December 27, 1990 meeting of the CSE had not been scheduled. However, respondent offers no additional proof that a meeting of the CSE was scheduled, and its attorney all but concedes that the December 27 meeting was in fact not a meeting of the CSE, but a meeting with the CSE's social worker for the purpose of conducting a social history update. Such updates are frequently performed by respondent's CSE on the same day as the CSE meets with the parents.

Although neither party has conclusively demonstrated the purpose of the December 27 meeting, I find that it is not necessary to resolve that factual issue for the purpose of this application to reopen. Whether the meeting in question was an actual meeting with the CSE or a preliminary meeting to obtain information to be used by the CSE in its meeting with petitioner, there is no dispute that petitioner through her attorney knew of the meeting and declined to participate. Petitioner's refusal to cooperate with the CSE is of far greater significance than the nature of the meeting on December 27. Consequently, I must find that the alleged factual error in my decision does not afford a basis to reopen the decision.

As a second alleged misapprehension of fact, petitioner asserts that the decision in Appeal No. 91-7 fails to note that the CSE was in default of the terms of my decision in Appeal No. 90-18, by failing to meet with petitioner within 30 calendar days after the date of the latter decision. Petitioner's assertion is without merit. I must note that while respondent erroneously concluded that the provision of my decision Appeal 90-18 requiring the CSE to meet within 30 days after December 6, 1990 meant 30 school workdays, rather than 30 calendar days, clarification of that provision was provided in the decision in Appeal No. 91-7. Moreover as noted in the latter decision, the issue of calendar days or school workdays is of little significance, in view of petitioner's intentional refusal to make the pupil available for re-evaluation. Petitioner's refusal precluded the CSE from completing its task of recommending an appropriate placement for the pupil for the remainder of the 1990-91 school year pursuant to my decision in Appeal No. 90-18. It would be both inequitable and not in the best interest of the child to allow petitioner to hide behind the accusation that the CSE failed to comply with the provisions of my prior decision, when she has hindered the CSE in its attempt to comply with the decision.

Petitioner also attempts to reargue the effect, if any, of her withdrawal of consent to the re-evaluation of the pupil by respondent, by referring to the provisions of 8 NYCRR 200.5 (b)(2). The regulation cited by petitioner applies to the initial evaluation of a pupil, as was decided in the decision in Appeal 91-7. I must also note that an application for reopening is not intended to provide an opportunity for reargument, on the law, of a prior decision (Application to reopen the appeal of a Child with a Handicapping Condition, 28 Ed. Dept. Rep. 496).

Lastly, petitioner asserts that the decision in Appeal No. 91-7 was rendered under a misapprehension of fact as to the status of a stipulation between petitioner and respondent as an issue in subsequent litigation between the parties in a United States District Court. In my decision, I rejected petitioner's argument that respondent should be barred from conducting a re-evaluation of the pupil because of its alleged failure to comply with the terms of a stipulation settling litigation between the parties as to the pupil's placement for the 1989-90 school year. I noted that at the hearing held on January 15, 1991, the attorneys for petitioner and respondent had stated that the stipulation was under consideration by the Court, and I concluded that the Court, not I, would determine the appropriate remedy for the alleged breach of the stipulation.

Petitioner asserts that the record which was before me demonstrated that the Federal Court has withheld action in the case pending the exhaustion of petitioner's administrative remedies. Petitioner cites three pages of the transcript of the January 11, 1991 hearing, as support for her assertion.

I find that the record does not support petitioner's assertion. The attorneys and the hearing officer discussed the effect, if any, to be given to the stipulation during the hearing. However, there was no discussion whatsoever of any deferral of action by the Federal Court pending petitioner's exhaustion of administrative remedies. Petitioner has not offered any support for her assertion, such as an interim decision of the Court or a transcript of proceedings before the Court. I find that petitioner has failed to prove her assertion that my decision was rendered under a misapprehension of fact.

In addition to opposing this application to reopen, respondent requests that I issue an order relieving it of its obligation to pay for the pupil's tuition at the Eden II School. The pupil began attending the Eden II School at respondent's expense during the 1989-90 school year pursuant to a stipulation between the parties, and has remained at that school during the pendency of the two hearings, two state-level reviews and the present application to reopen in accordance with Federal and State law (20 USC 1415 [e][3]; section 4404 [4] of the Education Law). Respondent asserts that petitioner's continuing refusal to cooperate with the CSE in its attempt to complete a re-evaluation of the pupil is no more than a thinly disguised attempt to retain public funding for a placement preferred by petitioner.

Although a Court has the inherent power to prevent an abuse of the procedural protection afforded to the parents of children with handicapping conditions when a parent indulges in dilatory tactics (Jacobsen v. District of Columbia Board of Ed. et. al., 564 F. Supp. 166; Saleh v. District of Columbia et al., 660 F. Supp. 214), I need not reach the issue of whether a State Review Officer has similar power (Application of a Handicapped Child, 23 Ed. Dept. Rep. 80). Petitioner has exercised her right to seek State-level review in a timely manner. Despite the highly questionable positions asserted by petitioner in this application to reopen, I have no basis at this time to conclude that petitioner's conduct, given that of the respondent, is dilatory. Nonetheless, the extended and extensive legal confrontation between petitioner and respondent impels me to make one additional comment in this matter.

The United States Supreme Court has noted that Federal law affords parents of children with handicapping conditions extensive substantive and procedural rights in working with boards of education to provide an appropriate public education for their children. The Court also noted that the resolution of disagreements may be a time consuming process (School Committee of the Town of Burlington v. Dept. of Education, Commonwealth of Massachusetts, 471 U.S. 359). The protection of maintaining a pupil's then current placement during the pendency of a proceeding to review the actions of a board of education may extend beyond the school year in which the parent first challenges such actions (Zvi D. v. Ambach, 694 F. 2d 904). Nevertheless, both parents and boards of education have an obligation to work together in a cooperative approach. A failure to cooperate may afford a basis for denying a parent the right to tuition reimbursement or other relief, upon the ground that it would be inequitable to allow the parent to obtain such relief (School Committee of the Town of Burlington, supra; Tucker v. Bay Shore UFSD, 873 F. 2d 563).

Petitioner's continued insistence that the CSE should be barred from conducting an evaluation of the pupil to determine the pupil's present needs, because of the CSE's failure to complete an evaluation of the pupil by April 15, 1990 as provided in the stipulation between the parties is unreasonable. Her continuing attempt to depict respondent as being non-responsive to my decision in Appeal No. 90-18 while hindering the CSE from completing its task to comply with that decision is also unreasonable. Accordingly I urge petitioner to cease and desist from this course of conduct and recognize the potential consequences of pursuing this course of action.

THE APPLICATION IS DENIED.

Dated: Albany, New York __________________________
May 13, 1991 HENRY A. FERNANDEZ