The State Education Department
State Review Officer

No. 95-60

 

Application of a CHILD SUSPECTED OF HAVING A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Iroquois Central School District

Appearances:
Bouvier and O'Connor, Esqs., attorneys for respondent, Bruce A. Goldstein, Esq., and Tamie J. Morog, Esq., of counsel

DECISION

        Petitioner appeals from a directive by an impartial hearing officer requiring respondent Board of Education to disclose the educational records of petitioner's child to a private psychologist. The private psychologist had been selected by petitioner to independently evaluate petitioner's child. The appeal must be dismissed, because the matter is moot.

        Petitioner's child was referred by his fourth grade teacher to respondent's committee on special education (CSE) in June, 1993. Petitioner declined to give his consent to have the CSE evaluate his child. Respondent initiated an impartial hearing to obtain the authorization of a hearing officer to conduct an evaluation without petitioner's consent. The hearing officer found that there was adequate evidence to suspect that the child could have a disability, and authorized the CSE to evaluate the child. Petitioner's appeal from the hearing officer's decision was dismissed in March, 1994 (Application of a Child Suspected of Having a Disability, Appeal No. 94-3). Thereafter the child was evaluated, and the CSE recommended that he be classified as learning disabled and that he receive special education in two academic subjects.

        Petitioner withheld his consent to the child's placement in a special education program. Respondent initiated a hearing to obtain a hearing officer's authorization to place the child in the recommended part-time special education program without petitioner's consent. In September, 1994, an impartial hearing officer held that respondent had met its burden of proof with regard to the appropriateness of the child's proposed classification and program. Petitioner appealed from the hearing officer's decision. His appeal was sustained on the grounds that an appearance of impropriety had been created by the CSE chairperson's apparent involvement in the appointment of the hearing officer, and that the child's evaluation by the CSE was incomplete (Application of a Child Suspected of Having a Disability, Appeal No. 94-37).

        The CSE was ordered to complete its evaluation, and the child's parents were directed to cooperate with the CSE. Although the CSE reportedly met in January, 1995, its recommendations, if any, were not implemented because petitioner requested an independent evaluation of the child. Petitioner asked for a hearing to obtain an order directing respondent to pay for the cost of the independent evaluation, which it would in any event be required to do, unless respondent initiated a hearing to demonstrate the appropriateness of its evaluation (34 CFR 300.503 [b]; 8 NYCRR 200.5 [a][1][vi][a]).

        At a hearing held on February 15, 1995, the parties reached an agreement about an independent evaluation. They agreed that the evaluation would be completed within a specified period of time, and that the hearing officer would retain jurisdiction in the matter to ensure compliance by the parties with their agreement. In May, 1995, respondent's attorney asked the hearing officer to hold a hearing to address the issue of whether petitioner had breached the parties' agreement by failing to have the child evaluated within the agreed upon time.

        On June 15, 1995, a hearing was held on the issue of the alleged breach of the parties' agreement. Respondent asked the hearing officer to find that petitioner had not complied with the agreement, and to appoint a guardian ad litem for the child to insure compliance with the agreement. The hearing officer deferred decision on respondent's request for a guardian ad litem, but informed the parties that he intended to contact the independent evaluator to ascertain whether the evaluation could be completed in the near future.

        The hearing officer denied respondent's request for a guardian ad litem in his written decision dated July 17, 1995. However, he found that petitioner had violated the terms of the agreement by failing to even advise respondent that the independent evaluation would not be completed within the period of time to which the parties had agreed.

        On July 17, 1995, the same day that the hearing officer rendered his decision, petitioner and his wife, reportedly met with the independent evaluator. They did not agree to the independent evaluator's request that he have access to the results of the CSE's evaluation of the child. In a letter to the parties, dated July 19, 1995, the hearing officer informed them that the independent evaluator had discussed with the hearing officer petitioner's insistence that the evaluator not see the CSE's test results before completing his evaluation. The hearing officer found that there was no basis for withholding the information from the independent evaluator. He directed respondent to provide the independent evaluator with the results of specific tests which had been administered to the child on May 13, 1994 and December 15, 1994. It is from this directive that petitioner appeals.

        Petitioner asserts that the hearing officer's directive violated petitioner's rights under the Family Educational Rights and Privacy Act of 1974 (20 USC 1232g). Respondent asserts that the State Review Officer lacks jurisdiction to determine claims based upon the Family Educational Rights and Privacy Act of 1974. It further asserts that the matter is moot because it did not, in fact, release the child's records to the independent evaluator.

        On July 28, 1995, petitioner initiated an appeal from the hearing officer's July 17, 1995 written decision, in which he challenged the decision on procedural grounds. However, he did not challenge the hearing officer's July 19, 1995 directive to release the child's records to the independent evaluator. The record of the appeal from the July 17, 1995 decision revealed that the independent evaluator had withdrawn from the matter on or about July 25, 1995, and that by a letter to the hearing officer dated August 8, 1995, petitioner withdrew his request for an independent evaluation at respondent's expense. This appeal was commenced on August 30, 1995, more than one month after the independent evaluator had withdrawn from the proposed independent evaluation.

        In the absence of any evidence that the child's records were disclosed to the independent evaluator, I find that the matter is moot. The State Review Officer is not required to determine issues which are no longer in controversy, or to make a determination which would have no actual effect on the parties (Application of a Child with a Handicapping Condition, Appeal No. 91-45).

        Although petitioner asserts that his request for an independent evaluation has been "temporarily withdrawn", I must note that he has had ample time to secure an evaluation, but has not done so. The child in this proceeding was referred by his teacher to the CSE over two years ago, because the child was having academic difficulty. It is imperative that the issues of the child's classification, if any, and the services which he should receive, either special education or remedial regular education, be resolved without further delay. The assistance the child needs, and is entitled to receive, must become the clear focus for all parties. If it has not already done so, the CSE must make a prompt recommendation for the 1995-96 school year.

        THE APPEAL IS DISMISSED.

 

Dated: Albany, New York __________________________
September 19, 1995 DANIEL W. SZETELA