The State Education Department
State Review Officer

No. 03-044

 

 

 

 

 

Application of a CHILD WITH 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 Yonkers City School District

 

Appearances:
Donoghue, Thomas, Auslander & Drohan, Esqs., attorneys for respondent, Ana I. Gonzalez, Esq., of counsel

DECISION

 

        Petitioner appeals from an impartial hearing officer's decision that dismissed with prejudice petitionerís request for an appropriate committee on special education (CSE) and a sufficient individualized education program (IEP) for her son (Petition Exhibit I, Letter dated March 11, 2002). The decision of an impartial hearing officer held that the dispute between the parties had been resolved by an agreement and stipulation, which had been read into the record at the hearing on November 19, 2002, and was incorporated into a decision which the hearing officer rendered on December 13, 2002. The appeal must be dismissed.

        I must note that no testimony from witnesses other than the petitioner was presented and no document was formally introduced into evidence at the hearing (cf. Application of the Bd. of Educ. of the City School District of the City of New York, Appeal No. 94-35). Therefore, I have relied upon the documents submitted in this appeal. Documentary evidence not presented at a hearing may be considered in an appeal from the hearing officer's decision, if such evidence was unavailable at the time of the hearing, or when such evidence is necessary to enable me to render a decision (Application of the Bd. of Educ., Appeal No. 02-024). I find that this evidence is necessary to enable me to render a decision and I will accept the submissions (Application of the Bd. of Educ., Appeal No. 02-024; Application of a Child with a Disability, Appeal No. 02-009).

        Petitionerís son was sixteen at the time of the hearing in 2002 and had been classified as Other Health Impaired, displaying symptoms of Touretteís syndrome, as well as pervasive developmental disorder (PDD), an attention deficit hyperactivity disorder (ADHD), obsessive-compulsive disorder (OCD), learning disabilities, anxiety disorder and mood disorder. In September 2001, the student attended tenth grade at respondentís Gorton High School with resource room and counseling services but, on his own accord, stopped attending after two weeks (Petition Exhibit I, Transcript p. 22). The student primarily remained at home with tutorial services provided by his parents. On December 9, 2002, the parents withdrew the student from the district by letter (Answer Exhibit 12, Reply Exhibit O).

        The hearing was conducted on April 5, August 23, and November 19, 2002, and resulted in agreements that were placed on the record by the parties (Transcript pp. 15-17, 77-79). On November 19, 2002, it was specifically agreed that a neuropsychological evaluation would be conducted on December 7 and 14, 2002 and that a psychological evaluation would be completed prior to the next CSE meeting. The parties also agreed to schedule a CSE meeting on January 9, 2003 at 9:00 a.m. to develop an IEP for the student using the results of the evaluations. Further, the parties agreed to two conference calls on November 26, 2002 and December 10, 2002 to determine if the student was going to the home school program. A tutor was provided by the district to meet the student five days a week for two hours a day, to begin on November 21, 2002 (Transcript pp. 77-79).

        On November 20, 2002, petitioner sent a letter to the hearing officer, which was deemed a Motion to Vacate the Agreement and Order and Agreement (Petition Exhibit N). On December 13, 2002, the hearing officer denied the petitionerís motion to vacate the agreement and appointed a guardian ad litem. On February 7, 2003, the district made a motion to dismiss the matter with prejudice claiming that the parent was not cooperating with the district (Answer Exhibit 14). Petitioner responded on March 10, 2003 (Sur Reply Exhibit M). The district responded on March 20, 2003 and petitioner sent a sur reply to the hearing officer on April 4, 2003 (Answer Exhibit 15, Petition Exhibit N).

        By decision dated April 8, 2003, the hearing officer dismissed the case with prejudice. In his decision, the hearing officer found that the district continually attempted to offer the student a free and appropriate public education (FAPE) in both public and private schools, and had complied with the agreements. During the hearing process, respondent attempted to complete the evaluations of the student needed to develop an appropriate program, but the parent failed to cooperate. Based upon the agreement entered into by the parties during the hearing, petitioner was to have her son evaluated, and was offered an opportunity to participate in the CSE to be convened on January 9, 2003. Petitioner failed to have her son evaluated and to attend the CSE meeting, and petitioner failed to cooperate with a school that invited the parent to schedule an interview and tour the facilities (Answer Exhibit 14). In fact, the completed IEP was submitted by respondent upon this appeal (see submission dated August 5, 2003).

        I find the impartial hearing officer's decision to be persuasive, and agree with his decision. In essence, petitioner seeks to be relieved from the terms of the stipulation that she entered into on November 19, 2002, with her counsel. Petitioner was represented by an attorney at the hearing and petitioner actively engaged in a discussion about the upcoming appointments for the evaluations (Transcript pp. 78-82).

        Having reviewed the transcripts of the April 5, August 23, and November 19, 2002 hearings, I find that petitioner was afforded an appropriate opportunity to make her views known to the hearing officer and to address appropriate issues. Petitioner discussed the agreement and voiced no concerns at the hearing.

        Stipulations are favored by the courts as a means of settling disputes, and they may not lightly be set aside. That is equally true with respect to a stipulation in an administrative proceeding like this (Application of a Child with a Disability, Appeal No. 93-27; Application of a Child with a Disability, Appeal No. 97-46; see also Hallock v. State of New York, 64 N.Y.2d 224, 230 [1984]). An appeal to a State Review Officer may not be used as a way to relitigate a matter that the parties have previously resolved or to consider in the first instance additional claims that may arise as a settlement agreement is implemented. Although a stipulation may be vacated for cause including fraud, collusion, mistake, and accident, in this case, it is clear that no cause exists (Application of a Child with a Disability, Appeal No. 97-46; see also Matter of Frutiger, 29 N.Y.2d 143, 150 [1971]).

        I have considered petitionerís remaining contentions and find them to be without merit.

 

         THE APPEAL IS DISMISSED.

 

Dated:

Albany, New York

 

__________________________

 

October 29, 2003

 

FRANK MUÑOZ
STATE REVIEW OFFICER