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The State Education Department
State Review Officer

No. 94-9

Application of A CHILD WITH A DISABILITY, by her parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Ellenville Central School District

Appearances:
Anderson, Banks, Curran and Donoghue, Esqs., attorneys for respondent, Esq.,

James Drohan, of counsel

DECISION

Petitioners appeal from the decision of an impartial hearing officer which held that the issues of whether the classification of petitioners' child had been changed from speech impaired to emotionally disturbed in November, 1990, and if so, whether such change of classification was appropriate for the period of November, 1990 through June, 1991, were moot. Petitioners challenge the alleged change of classification on procedural and substantive grounds, and seek an order requiring respondent to delete any reference to the disabling condition of emotionally disturbed from the child's records. The appeal must be dismissed on the ground of lack of subject matter jurisdiction.

The record reveals that in May, 1993, petitioners adopted the child, who is 8 years old. Prior to that time, the Ulster County Commissioner of Social Services was the child's legal guardian. The child lived with a foster parent until June, 1992, when she was placed by the Commissioner of Social Services in foster care with petitioners, as her prospective adoptive parents. However, the term "foster parent" shall be used in this decision to refer only to the child's foster parent prior to June, 1992, when petitioners became her foster parents pending her adoption in May, 1993.

During the 1989-90 school year, the child was classified as speech impaired by respondent's committee on preschool special education (CPSE). She was enrolled in the preschool program of the Community Rehabilitation Center (CRC) in Lake Katrine, New York, where she also received speech/language therapy and adaptive physical education. The child's classification and placement for the 1989-90 school year are not in dispute. Although the child became 5 years old in May, 1990 and should have become the responsibility of respondent's committee on special education (CSE) for the 1990-91 school year, the CSE chairperson testified at the hearing in this proceeding that respondent relied upon its CPSE to recommend the child's classification and placement for that school year. The CPSE recommended that the child remain classified as speech impaired and be enrolled in a special education class with a child to adult ratio of 12:1 + 4 in the CRC during the 1990-91 school year. The child attended the CRC, at respondent's expense, for the 1990-91 school year. Petitioners do not challenge the appropriateness of the child's placement nor of the services received in the CRC for that school year.

At the hearing in this proceeding, the CSE chairperson testified that the CSE, which had not previously considered the child's classification or placement, reviewed her classification and placement, on November 14, 1990. The child's foster parent at that time was invited to, and did attend, the CSE meeting. The record does not reveal whether the child's teacher or any representative of the private school she attended was invited to attend, or participated in, the CSE meeting. The CSE's review of the child's classification and placement was reportedly conducted because a representative of the State Education Department had allegedly advised the CSE chairperson that the child's placement as a speech impaired child in the CRC would not be approved by the State Education Department for purposes of obtaining State aid (see 8 NYCRR 200.6[i]).

The CSE chairperson testified that the CSE recommended that the child's classification be changed to emotionally disturbed, and that he so informed the representative of the State Education Department. However, the notice of the CSE's recommendation from its meeting of November 14, 1990 which was sent to respondent and to the child's foster parent erroneously indicated that the child was to remain classified as speech impaired, as did the notice to the foster parent of respondent's approval of the CSE's recommendation. Respondent did not offer any evidence that it had approved a specific recommendation that the child's classification be changed from speech impaired to emotionally disturbed. The child's individualized education program (IEP) which was reportedly reviewed and adopted by the CSE at its November 14, 1990 meeting was not revised to indicate the change in the child's classification, although it was revised to add the related service of counseling which the CSE had recommended at such meeting.

At a meeting held on June 3, 1991, the CSE recommended that the child's classification be changed from emotionally disturbed to speech impaired, and that the child be placed in a BOCES 12:1 + 1 special education class for the 1991-92 school year. The record does not reveal whether the child attended the BOCES class during the 1991-92 school year. Indeed, there is no additional information in the record about the child's classification and placement for either the 1991-92 or 1992-93 school years, which are not in dispute in this appeal. In July, 1993, the CSE recommended that the child's classification be changed to multiply disabled. The record reveals that the July, 1993 recommendation is in dispute, but is the subject of another proceeding. Consequently, the only matter before me in this appeal involves the child's classification from November, 1990 through June, 1991.

In a letter dated December 7, 1993, the child's adoptive father requested that an impartial hearing be held to review the appropriateness of the child's classification as emotionally disturbed during the period in question. When the hearing commenced on January 11, 1994, the parties agreed that the two issues to be addressed in the hearing were whether the child had in fact been classified as emotionally disturbed from November, 1990 through June, 1991 and whether such classification was appropriate. The hearing was concluded on January 31, 1994.

In a decision dated February 28, 1994, the hearing officer held that although petitioners were not time-barred from seeking review of the child's classification during the period in question, the issue of the child's classification was nevertheless moot because of the passage of time and the absence of any dispute about the child's educational program. Notwithstanding his finding of mootness, the hearing officer further found that the record was adequate to support the child's classification as emotionally disturbed, but that there was insufficient evidence that the respondent had in fact approved the CSE's recommendation to change the child's classification to emotionally disturbed, or that the CSE had complied with applicable State regulations regarding notices to parents or persons in parental relationship (see 8 NYCRR 200.5 [a][4] and [5]).

Petitioners assert that the hearing officer erred in finding that the matter was moot. Their assertion is premised upon their belief that the child's classification as emotionally disturbed for most of the 1990-91 school year could influence the results of the child's future evaluations or future CSE recommendations for her classification. They argue that the matter is not moot because the child's former classification could have a practical impact on her in the future. Respondent asserts that petitioners' concern about future evaluation results or CSE recommendations is speculative. In its memorandum of law, respondent asserts that the child has been evaluated since the 1990-91 school year, and has not been classified as emotionally disturbed. Respondent urges me to find that the matter of the child's classification is moot. It also asserts that petitioners have an alternative remedy for obtaining the relief which they seek, under the provisions of the Family Educational Rights and Privacy Act (20 USC 1232-g).

Petitioners bring the proceeding pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq.) and Article 89 of the New York State Education Law. Both statutes and their implementing regulations accord the parents of children with disabilities the right to challenge their children's classifications and the adequacy of the educational programs which have been provided or offered to their children. Neither statute expressly limits a parent's right to invoke the extensive due process procedures, including review by the State Review Officer, to a child's present or proposed classification or placement. A dispute about a child's IEP for a prior school year is not per se moot (Chris C. by Barbara C. v. Guinnett County School District, 780 F. Supp. 804 [N.D. Ga., 1991]; Application of a Child with a Disability, Appeal No. 93-35). Nevertheless, an appeal may be found to be moot, if no meaningful relief could be provided because a school year has ended and there is no basis for believing that the dispute between the parties will continue (Application of a Child with a Disability, Appeal No. 93-27; Application of a Child with a Disability, Appeal No. 93-21). However, I find that the matter need not be determined on the basis of mootness, and must be determined on jurisdictional grounds.

The Individuals with Disabilities Education Act (IDEA) provides for impartial hearings and State-level reviews in matters relating to the identification, evaluation or educational placement of children, or the provision of a free appropriate public education (20 USC 1415 [b] and [c]). However, a separate portion of the statute, 20 USC 1417 (c), requires the Secretary of Education to promulgate regulations for the protection of the rights and privacy of parents and students in accordance with the provisions of the Family Educational Rights and Privacy Act. The relevant Federal regulations under the IDEA (34 CFR 560-575) prescribe a specific procedure for challenging alleged inaccuracies in children's educational records. Upon the request of a parent, a school district must provide an opportunity for a hearing to challenge information in a child's records. However, the IDEA regulations (34 CFR 300.570) provide that such hearings are to be conducted in accordance with the procedures specified in 34 CFR 99.22, rather than the hearing procedures for other kinds of claims asserted under the IDEA, which are to be conducted pursuant to 34 CFR 300.506-508. If, after a hearing, a board of education declines to amend a child's records, the child's parents have the right to place in the child's records a statement disagreeing with the board's decision (34 CFR 300.569 [b]). However, there is no State-level review of a decision made after such a hearing. An aggrieved party may file a complaint with the Family Policy Compliance Office of the U.S. Department of Education, pursuant to 34 CFR 99.63.

Although, petitioners purport to challenge the child's classification during the 1990-91 school year, it is readily apparent that they seek to correct what they believe are erroneous statements in the child's records about the nature of her disability. I find that neither the hearing officer nor I could grant the relief which they seek (Matter of Reninger, 23 Ed. Dept. Rep. 27; Application of the Bd. of Ed. City School District of the City of New York, 25 id. 214; Application of a Child with a Handicapping Condition, 28 id. 19). I note that respondent represents that it has offered petitioners the opportunity for a hearing under the Family Educational Rights and Privacy Act. There is no reason to doubt the efficacy of such a remedy, particularly in view of respondent's inability to demonstrate that it has ever approved the CSE's November 14, 1990 recommendation that the child be classified as emotionally disturbed.

THE APPEAL IS DISMISSED.

Dated:             Albany, New York                                        _________________________
                        May 4, 1994                                               CLAUDIO R. PRIETO