The State Education Department
State Review Officer

No. 97-23

 

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:
Donoghue, Thomas, Auslander and Drohan, Esqs., attorneys for respondent, Daniel Petigrow, Esq., of counsel

 

DECISION

        Petitioners appeal from the decision of an impartial hearing officer which denied their request that he reopen his prior decision ordering the parties to have petitioners' daughter receive her triennial evaluation at the Newington Children's Hospital in Newington, Connecticut. The appeal must be dismissed as premature.

        Petitioners' daughter was classified as autistic in 1984. Since that time, the parties have been embroiled in disputes about her educational program and her triennial evaluations (Appeal of a Child with a Handicapping Condition, 28 Ed. Dept. Rep. 323; Application of a Child with a Handicapping Condition, Appeal No. 91-19; Application of a Child with a Handicapping Condition, Appeal No. 92-36; Application of the Board of Education of the Ellenville CSD, Appeal No. 94-43; Application of a Child with a Disability, Appeal No. 97-4).

        Petitioners' daughter was last evaluated at the Newington Children's Hospital in January, 1993. In Application of the Board of Education of the Ellenville CSD, supra, I found that the child had been adequately evaluated by the Newington Children's Hospital. Federal and State regulations require that a child with a disability be re-evaluated at least once every three years to determine the child's continuing eligibility to receive special education (34 CFR 300.534 [b]; 8 NYCRR 200.4 [e][4]).

        In October, 1996, on the twenty-seventh day of a hearing involving other issues, respondent asked the hearing officer to assume jurisdiction over the issue of respondent's alleged failure to perform a triennial evaluation within three years after her last evaluation at the Newington Children's Hospital in January, 1993. Over petitioners' objection, the hearing officer granted respondent's request. After a two-day hearing in November, 1996, the hearing officer rendered a decision finding that respondent had failed to perform the child's triennial evaluation. On November 16, 1996, the hearing officer directed respondent to make arrangements for the child to be re-evaluated by the Newington Children's Hospital. He denied petitioners' request that respondent be ordered to provide their child with compensatory education. Petitioners' appeal from the hearing officer's decision was dismissed on February 14, 1997 (Application of a Child with a Disability, Appeal No. 97-4).

        On or about February 11, 1997, petitioners orally moved for the hearing officer to reopen his decision, on the ground that respondent had allegedly failed to comply with his November 16, 1996 order to make arrangements for the child's evaluation. The hearing officer granted petitioners' motion, and he scheduled a hearing on the issue to be held on February 19 and 20, 1997. On February 19, 1997, respondent's CSE chairperson testified about the actions which he had taken to arrange for the child's re-evaluation at the Newington Children's Hospital. Petitioners did not appear when the hearing resumed on February 20, 1997.

        In view of respondent's representation that the Newington Children's Hospital was making the week of March 3-7, 1997 available for the child's re-evaluation, and petitioners' reported failure to contact him about rescheduling the hearing, the hearing officer rendered a decision on February 21, 1997, in which he found that respondent had complied with his previous order to arrange for an evaluation. He ordered petitioners to contact the CSE chairperson by no later than February 24, 1997, to confirm that the child would be at the Newington Children's Hospital for the scheduled evaluation. That evaluation did not take place. Instead, petitioners commenced this appeal to review the hearing officer's decision.

        Petitioners challenge the hearing officer's decision on the ground that he rendered it before they had been given an opportunity to cross-examine the CSE chairperson about the arrangements for the child's re-evaluation (cf. 8 NYCRR 200.5 [c][9]). They request that the hearing be reopened before a new hearing officer.

        Respondent opposes petitioners' request on the ground that the matter is moot. On March 3, 1997, petitioners moved to reopen the hearing officer's decision. In a decision dated March 17, 1997, the hearing officer granted petitioners' motion, notwithstanding petitioners' failure to explain why they were unable to attend the hearing on February 20, 1997, or why they failed to make the child available for the scheduled re-evaluation. He granted the motion on the grounds that the interest of the child required that the hearing proceed so that a triennial evaluation could be arranged and completed.

        I agree with respondent that the appeal must be dismissed because the hearing officer's decision from which petitioners appeal has been set aside by the hearing officer. Therefore, they are no longer aggrieved by that decision. The State Review Officer is not required to determine issues which are no longer in controversy, or to make a determination which will have no impact upon the parties (Application of a Child with a Handicapping Condition, Appeal No. 91-45; Application of a Child Suspected of Having a Disability, Appeal No. 95-52).

 

        THE APPEAL IS DISMISSED.

 

 

 

 

Dated: Albany, New York __________________________
April 29, 1997  FRANK MUŅOZ