The State Education Department
State Review Officer

No. 02-072

 

 

 

 

 

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 Barker Central School District

 

Appearances:
Andrew K. Cuddy, Esq., attorney for petitioner

Hodgson Russ LLP, attorneys for respondent, Jerome D. Schad, Esq., of counsel

 

DECISION

        Petitioner appeals from the decision of an impartial hearing officer regarding the determination made by respondent's Committee on Special Education (CSE) that petitioner's son was ineligible to receive special education services. The hearing officer assessed both the procedural and substantive appropriateness of the CSE's determination. Finding that the determination was "procedurally inappropriate," the hearing officer ordered that it be annulled and remanded the matter to the CSE. Despite having annulled the CSE's determination for procedural violations, the hearing officer went on to find that the determination was substantively appropriate. Petitioner appeals from that portion of the hearing officer's decision which found that the CSE's determination was substantively appropriate. Respondent cross-appeals from that portion of the hearing officer's decision which annulled its CSE's determinations and recommendations for procedural violations. The appeal must be dismissed. The cross-appeal must be dismissed.

        Petitioner's son was 12 years old and was being homeschooled when the hearing began in October 2001 (District Exhibit 28). In 1998 when he was in the third grade in respondent's public school, the student was referred by his parents to the CSE (District Exhibit 92). The CSE met in May 1998 to review various evaluations. Although the CSE did not "believe" that the student was eligible for special education, it deferred a formal decision pending the results of independent evaluations requested by petitioner. However, before the evaluations were conducted, the student's parents requested an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA) and section 504 of the Rehabilitation Act of 1973 (Section 504). After the hearing began, the parents withdrew their IDEA claim and pursued only the Section 504 claim. In a decision dated May 5, 1999, the hearing officer in that matter found that the student was not eligible for accommodations under Section 504 (District Exhibit 92).

        The student completed fourth grade at respondent's public school in June 1999. Thereafter he was homeschooled (Pet. 8). While he was being homeschooled, he was referred to the CSE (District Exhibit 228). A psychoeducational evaluation was conducted in November and December 2000 (District Exhibit 13). Administration of the Weschler Intelligence Scale for Children-III (WISC-III) yielded a verbal IQ score of 101, a performance IQ score of 103, and a full scale IQ score of 102, placing the student in the average range of intellectual functioning. The student demonstrated relative weaknesses on certain subtests which, the evaluator indicated, was similar to a pattern often generated by children with attention deficit hyperactivity disorder (ADHD). On the Woodcock-Johnson Tests of Achievement, all but one score measuring the student's writing ability were within the average range. The exception was a standard (and percentile) score of 67 (1) on the subtest measuring handwriting. The student achieved standard scores of 106 (66) on subtests measuring written expression and writing fluency as well as on the subtest evaluating his writing sample. Occupational therapy (OT) evaluations identified weaknesses in fine and gross motor coordination (District Exhibits 11, 12). Results of two central auditory processing evaluations suggested that the student did not have a central auditory processing disorder (District Exhibit 9, Parent Exhibit O-9).

        The CSE met in March 2001 (District Exhibit 7-B). Shortly after the meeting began, a disagreement arose between petitioner and the CSE chairperson regarding parental consent (District Exhibit 7-A). The disagreement could not be resolved to the satisfaction of either party, and the parents left the meeting before a recommendation was made. The parties dispute whether the parents were asked to leave the meeting or whether they chose to leave. Before petitioner left, she asked that the meeting be rescheduled. However, the CSE chairperson advised her that the meeting would continue. The meeting continued after the parents left and the CSE recommended that the student not be classified as a student with a disability (District Exhibit 7-B). Rather, the CSE referred the matter to the principal of the school the student was eligible to attend for academic intervention services in occupational therapy and counseling.

        In July 2001, the student's parents requested an impartial hearing (District Exhibit 2). The hearing began in October 2001, was held on various dates and concluded on May 3, 2002. Shortly after the hearing began, the child's father withdrew as a party to the proceedings (IHO Exhibit 13).

        The hearing officer rendered his decision on June 23, 2002. He found that the CSE which met in March 2001 to consider the student's eligibility for special education services was not properly constituted because there was no evidence that a special education teacher and a regular education teacher were present at the meeting. Additionally, he noted that state regulations require that an initial evaluation include an observation of the student in the current educational placement, and indicated that the fact that the student was being homeschooled did not lessen the obligation of the district to comply with the regulations. The hearing officer further found that it was inappropriate for the CSE to continue the March 2001 meeting after the parents left and to make recommendations without their input. Having found procedural violations, the hearing officer annulled the CSE's recommendation that the student was ineligible to receive special education services. Notwithstanding his order to annul the CSE's recommendation, the hearing officer went on to consider the substantive appropriateness of the CSE's recommendation and found that it appropriately determined that the student was not eligible for special education services.

        Petitioner appeals from the hearing officer's decision. She asserts that the hearing officer erred when he considered the substantive appropriateness of the CSE's recommendation after having determined that the CSE's recommendation should be annulled for procedural violations. She seeks an order annulling that portion of the hearing officer's decision which determined that her son was not a student with a disability and an order remanding the matter to the CSE for reconsideration with "parental participation as mandated members of the CSE." Respondent cross-appeals from the hearing officer's decision. It claims that the hearing officer erred in finding that there was no special education teacher and no regular education teacher at the March 2001 CSE meeting, and that the CSE should not have continued the meeting after the parents left.

        As a preliminary matter I note that in its answer, respondent asserts that petitioner's residency is in dispute (Answer 1). Section 279.1(a) of the Regulations of the Commissioner of Education provides that the provisions of Parts 275 and 276 shall govern the practice on reviews of hearings for students with disabilities, except as provided in Part 279. Pursuant to section 276.6 of the Regulations of the Commissioner, the State Review Officer (SRO) may, in his discretion, in the determination of an appeal, take into consideration any official records or reports on file in the Education Department which relate to the issues involved in the appeal. In other appeals to this office in which petitioner was a party, she admitted that she moved to the Springville-Griffith Institute Central School District (Springville-Griffith) and that she enrolled her children in Springville-Griffith on September 12, 2002. Under the circumstances presented, I will exercise my discretion to take into consideration in determining this appeal the fact that the student was enrolled in Springville-Griffith on September 12, 2002.

        First I will address petitioner's appeal. Petitioner requests that I annul that part of the hearing officer's decision which determined that her son was not eligible for special education services. However, approximately one month after petitioner initiated this appeal, she moved from respondent's school district and enrolled her son in Springville-Griffith. Pursuant to state law, the responsibility for providing a free appropriate public education (FAPE) to a student rests with the school district in which the student resides (N.Y. Educ. Law 3202[1], 4401-a, and 4402[1][b][2]). Therefore, upon the student's enrollment in Springville-Griffith on September 12, 2002, the responsibility for determining whether the student was eligible for special education services, and if so, for providing a FAPE rested with Springville-Griffith for as long as the student continued to be a resident of that school district.

        The SRO 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 Disability, Appeal No. 97-17; Application of a Child with a Disability, Appeal No. 94-9). Given the relief requested by petitioner and the fact that respondent's responsibility for determining whether the student was eligible for special education services, and if so, for providing a FAPE to him ended upon his enrollment in Springville-Griffith, there is no determination that I can make that would have an actual effect on the parties (see Application of a Child with a Disability, Appeal No. 02-110; see also Application of a Child with a Disability, Appeal No. 02-109).

        Similarly, there is no determination that I can make that would have an actual effect on the parties with respect to respondent's cross-appeal. Respondent claims that the hearing officer erred in annulling the CSE's March 2001 determination for procedural violations and in remanding the matter to the CSE to address the student's eligibility for special education services. It is not necessary that I address respondent's claims as subsequent events have laid these issues to rest. Respondent's responsibility for determining whether the student was eligible for special education services, and if so, for providing a FAPE to him ended on September 12, 2002 when he was enrolled in Springville-Griffith. In light of the relief requested by the parties and the fact that the student is no longer enrolled in respondent's school district, the hearing officer's order remanding the matter to respondent's CSE must be vacated.

 

        THE APPEAL IS DISMISSED.

        THE CROSS-APPEAL IS DISMISSED.

 

 

 

 

Dated:

Albany, New York

 

__________________________

 

October 7, 2003

 

PAUL F. KELLY
STATE REVIEW OFFICER