The State Education Department
State Review Officer

No. 02-109

 

 

 

 

 

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 granting respondent's motion to dismiss. The hearing officer dismissed the hearing having found that petitioner's claims were moot because she and her son were no longer residents of respondent's school district. The appeal must be dismissed.

        Petitioner's son was four years old and resided in respondent's school district when petitioner filed a request for an impartial hearing in February 2002. During the time the child resided in respondent's district and was of preschool age, he was not classified as a preschool child with a disability, nor was he classified as a child with a disability after he turned five.

        On September 28, 2001, petitioner referred her son to respondent's Committee on Special Education (CSE). As the child was four years old at the time, respondent's Committee on Preschool Special Education (CPSE) was responsible for acting on the referral (8 NYCRR 200.16). By letter dated October 4, 2001, respondent requested petitioner's consent to conduct an evaluation of her son. The consent form was not returned, and on January 29, 2002, respondent initiated a hearing pursuant to 8 NYCRR 200.5(b)(1)(i)(c) for the purpose of determining whether the child's evaluation should be conducted without parental consent. The following week, petitioner filed a request for an impartial hearing alleging that the school district failed to evaluate her son in a timely manner (Exhibit 1).

        On February 7, 2002, respondent appointed a hearing officer to hear both matters. At the request of petitioner's counsel, the hearing officer recused herself on April 29, 2002. On May 4, 2002, respondent advised petitioner that it would not be pursuing the hearing because the issue was moot as the child had turned five years old and the regulations governing preschool students with disabilities were no longer applicable (Exhibit 2). Respondent also asserted that a hearing was no longer necessary due to an asserted change in the regulations concerning parental consent. Nevertheless, petitioner remained interested in pursuing her hearing request concerning the timeliness of the evaluation of her son, and on May 15, 2002 respondent appointed a hearing officer to hear that matter (Exhibit 3).

        Upon his appointment, the hearing officer made several attempts to arrange a pre-hearing conference with the parties (Exhibits 4, 6, 7). The pre-hearing conference was held in July 2002 at which time a hearing date was scheduled for August. Subsequently, the hearing was rescheduled to begin on September 27, 2002 (Exhibit 19).

        Prior to the commencement of the hearing, on September 12, 2002, petitioner and her son moved to the Springville-Griffith Institute Central School District (Springville-Griffith) (Exhibit 20). The following week, respondent submitted to the hearing officer a motion to dismiss based upon lack of jurisdiction as petitioner and her son had moved from its school district (Exhibit 20). On September 24, 2002, the hearing officer notified the parties that he adjourned the hearing to consider respondent's motion (Exhibit 21). He provided petitioner an opportunity to respond to the motion, and she submitted her response on September 30, 2002.

        The hearing officer rendered his decision on respondent's motion to dismiss on October 8, 2002. He found that because petitioner no longer resided in respondent's school district, respondent was no longer responsible for evaluating her son or providing him with services. Accordingly, he found that the hearing was moot with respect to any claim for prospective relief against respondent. The hearing officer noted that petitioner failed to identify any substantive issues that remained after her move from the district. He acknowledged that claims for tuition reimbursement and compensatory education do not necessarily become moot upon a change of residence, but indicated that such claims were not raised at the hearing.

        Petitioner appeals from the hearing officer's decision asserting that her case satisfies the "capable of repetition, yet evading review" exception to the mootness doctrine. She claims that her husband continues to own and maintain a residence in respondent's school district and that her son may return to live with him.

        In general, a case becomes moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome (Murphy v. Hunt, 455 U.S. 478, 481 [1982]). In determining whether a controversy has become moot, the relevant inquiry is whether the facts alleged, under all the circumstances, show that there is a substantial controversy of sufficient immediacy and reality to warrant relief (Christopher P. v. Marcus, 915 F.2d 794, 802 [2d Cir. 1990]). 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 Disability, Appeal No. 97-17; Application of a Child with a Disability, Appeal No. 94-9).

        An exception to mootness exists for claims that are "capable of repetition, yet evading review" (Honig v. Doe, 484 U.S. 305, 318 [1988]). The exception applies only in exceptional situations (City of Los Angeles v. Lyons, 461 U.S. 95, 109 [1983]), and is severely circumscribed (Knaust v. City of Kingston, 157 F.3d 86, 88 [2d Cir. 1998]). Controversies are "capable of repetition" when there is a reasonable expectation that the same complaining party would be subjected to the same action again (Weinstein v. Bradford, 423 U.S. 147, 149 [1975]). To create a reasonable expectation of recurrence, repetition must be more than theoretically possible (Russman v. Bd of Educ., 260 F.3d 114, 120 [2d Cir. 2001]). Here, petitioner claims that her case survives the mootness doctrine because her son may return to live with his father in respondent's school district. Although petitioner submitted a response to the motion to dismiss, there is nothing in the record suggesting that it is more than possible that her son will return to respondent's district. Mere speculation that the parties will be involved in a dispute over the same issue does not rise to the level of a reasonable expectation of recurrence (Video Tutorial Services, Inc. v. MCI Telecommunications Corp., 79 F.3d 3, 6 [2d Cir. 1996]).

        Similarly, petitioner fails to address and there is nothing in the record to demonstrate that the conduct she complained of would evade review. Should her son return to respondent's school district classified as a child with a disability, respondent's CSE would be required to implement an existing or develop a new individualized education program (IEP) for him (34 C.F.R. Part 300, Appendix A, Section IV, Question 17). If he had not been classified as a child with a disability prior to his return, the CSE would be required to act upon appropriate referrals it received (8 NYCRR 200.4[a]). If the CSE then failed to implement or develop an IEP, or act upon any referrals, or otherwise failed to comply with the Individuals with Disabilities Education Act (IDEA), petitioner would be entitled to exercise her due process rights, including the right to an impartial hearing (See Christopher P., 915 F.2d at 802). Based upon the foregoing, I find that the facts alleged do not meet the "capable of repetition, yet evading review" exception to the mootness doctrine.

        Moreover, 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, as of September 12, 2002, Springville-Griffith became responsible for providing a FAPE to the child for as long as he remains a resident of that school district and is eligible for IDEA services. Additionally, pursuant to state regulation, a student suspected of having a disability shall be referred to the chairperson of the district's CSE or to the building administrator of the school which the student attends for an individual evaluation and determination of eligibility for special education programs and services (8 NYCRR 200.4[a]). As the child began attending school in Springville-Griffith on September 12, 2002, Springville-Griffith's CSE became responsible for acting upon any referral of the child for as long as he remains a resident of that school district.

        Having determined that the appeal is moot, it is not necessary that I address petitioner's remaining challenges to the hearing officer's decision.

 

        THE APPEAL IS DISMISSED.

 

 

 

Dated:

Albany, New York

 

__________________________

 

July 11, 2003

 

PAUL F. KELLY
STATE REVIEW OFFICER