The State Education Department
State Review Officer

No. 00-088

 

 

 

 

Application of the BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF ROCHESTER, for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability

 

Appearances:
Michael J. Looby, Esq., attorney for petitioner, Donald T. Schmitt, Esq., of counsel

The Advocacy Center, attorney for respondent, Meg Burkhard, Esq., of counsel

DECISION

        Petitioner, the Board of Education of the City School District of the City of Rochester, appeals from an impartial hearing officerís decision that determined that petitioner had failed to provide an appropriate educational program for respondentís son during the 2000-01 school year. The hearing officer directed petitioner to make the necessary arrangements to transfer the student to the Norman Howard School (NHS), a private school which he determined was an appropriate placement. The appeal must be dismissed.

        Respondentís son was ten years old and in the fifth grade at petitionerís School No.15 when the hearing commenced in September 2000. The student was initially classified by petitionerís Committee on Special Education (CSE) as other health impaired (OHI) on January 9, 1997, when the student was in the first grade at St. John the Evangelist School (St. John's) (Parent Exhibit 20). The student has been diagnosed as having an attention deficit hyperactivity disorder (ADHD) and a pervasive developmental disorder (PDD). There is no dispute about his classification as OHI. The student attended St. John's through the fourth grade. While there, he received the related services of speech/language, occupational and physical therapy, as well as counseling.

        On April 25, 2000, the CSE conducted its annual review of the student, who was in the fourth grade (Exhibit 8). It recommended that the student continue to be classified as OHI, and that he be placed in a 12:1:1 blended special class, i.e., a special class within a larger regular education class. The CSE also recommended that the student continue receiving speech/language therapy and counseling (Exhibit 8). At the meeting, the studentís mother advised the CSE that she believed NHS was the most appropriate placement for her son (Parent Exhibit 50). The individualized education program (IEP) that the CSE prepared for the student, while listing other participants, does not list a special education teacher as a participant at the meeting (cf. 34 C.F.R.ß 300.344[a][3]; 8 NYCRR 200.3[a]).

        On May 18, 2000, NHS accepted the student for admission for the 2000-01 academic year (Parent Exhibit 57). On June 16, 2000, respondent requested an impartial hearing because she disagreed with the CSEís recommendation for the 2000-01 school year (Exhibit 11). At the commencement of the school year, respondentís son was enrolled in School No. 15, rather than the NHS. He was placed in a split 4th-5th grade class consisting of two classrooms and three teachers.

        The impartial hearing was held on September 29 and October 2, 2000. The hearing officer rendered his decision on October 17, 2000. He found that petitioner failed to provide the student an appropriate educational placement because the placement at School No. 15 was not in fact the blended class placement which the CSE had recommended, and that the studentís actual placement could not meet his identified needs. The hearing officer also found that petitioner had failed to follow through with the CSEís recommendation to assess the studentís need for assistive technology. He further found that placement at NHS was appropriate for the student. The hearing officer ordered petitioner to make all necessary arrangements for the studentís immediate transfer to NHS.

        The CSE met on November 9, 2000, in order to implement the hearing officerís decision (Exhibit A to respondentís answer). It changed the studentís placement to a 12:1:1 self-contained program at NHS. The NHS has been approved by the New York State Education Department to provide instruction to children with disabilities pursuant to Article 89 of the Education Law. Therefore, it is a school with which petitioner could contract for the instruction of respondentís son (ß 4402[2][a] of the New York State Education Law). The student began attending NHS on November 15, 2000. The Board of Education did not initiate this appeal until November 28, 2000.

        Petitioner challenges the hearing officerís decision on a number of grounds. It argues that the hearing officer erred in finding that it failed to provide an appropriate educational program and in concluding that NHS was an appropriate placement for the student. Petitioner also argues that the hearing officer erred in determining it should place the student at NHS at its expense. Respondent contends that the appeal should be dismissed as moot because the student had been placed at NHS by petitioner. Petitioner argues that the appeal is not moot because its compliance with the hearing officerís order should not be deemed to be an agreement between the parties to place the student at the NHS.

        Petitioner asserts that it had an affirmative duty to implement the hearing officer's decision. I disagree. The decision of an impartial hearing officer is final and binding upon both parties unless it is appealed to the State Review Officer (34 C.F.R. ß 300.510[a]; 8 NYCRR 200.5[i][4][ii]). Therefore, the Board of Education was not obligated to implement the hearing officerís decision. At the time of his decision, the studentís then current placement for purposes of the pendency provisions of federal and state law was at School No. 15 (34 C.F.R. ß 300.514[a]; 8 NYCRR 200.5[i]). The record shows that the CSE met on November 9, 2000 to amend the student's IEP to place the student at the NHS for the remainder of the school year. Consequently, petitioner changed the studentís placement, and in doing so assumed financial responsibility for that placement.

 

 

        THE APPEAL IS DISMISSED.

 

 

 

 

 

Dated:

Albany, New York

 

__________________________

 

August 23, 2001

 

JOSEPH P. FREY