The State Education Department
State Review Officer

 

No. 05-086

 

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 Lakeland Central School District

 

Appearances:
Family Advocates, Inc., attorney for petitioner, RosaLee Charpentier, Esq., of counsel

Shaw & Perelson, LLP, attorney for respondent, Marc E. Sharff, Esq., of counsel

 

DECISION

            Petitioner1 appeals from an impartial hearing officerís interim order determining the studentís pendency placement during a due process proceeding challenging the appropriateness of respondentís recommended program for summer 2005 and the 2005-06 school year.  The appeal must be dismissed.

In the instant case, at the time of the July 19, 2005 impartial hearing, the student was 12 years old and eligible for special education as a student with an other health-impairment (OHI) (Dist. Ex. 2; see 8 NYCRR 200.1[zz][10]).2  The studentís classification is not in dispute. 

By letter dated June 28, 2005, petitioner requested an impartial hearing regarding the studentís program and placement for summer 2005 and the 2005-06 school year (Parent Ex. A).  In the hearing request petitioner stated she disagreed with the findings of the Committee on Special Education (CSE) and sought review of her request for more intensive services for her son. The impartial hearing officer was appointed on July 6, 2005 (Tr. p. 2).  By letter dated July 11, 2005, the impartial hearing officer memorialized a July 8, 2005 prehearing conference call that she initiated between the parties advising that a hearing would be necessary, pursuant to petitionerís counselís request, to determine the issue of the studentís placement during the course of the due process proceedings  (IHO Ex. 1).  The impartial hearing officer held another conference call with the parties on the morning of July 19, 2005, and pursuant to petitionerís counselís request for an ďimmediate hearing,Ē the parties agreed to conduct an impartial hearing that evening at 6:30 p.m. (Tr. pp. 3-4).   At the impartial hearing that evening, petitionerís counsel did not appear personally but sent a representative who objected to the timing of the impartial hearing arguing that petitioner did not have ď24 hour notice.Ē The representative also stated that petitionerís counsel ďknew she wouldnít be able to be here.Ē The impartial hearing officer noted that the hearing had been scheduled that evening at the request of petitionerís counsel earlier that day (Tr. pp. 4-6).  The impartial hearing officer, after noting that she drove two hours to reach the hearing location, stated that petitionerís counsel said during the morning conference call that she ďneededĒ the hearing ďtodayĒ and quoted petitionerís counsel as stating ďWeíll go forward at 6:30 tonight.Ē The impartial hearing officer correctly declined to adjourn the matter.  The representative sent by petitionerís counsel did not have the case file and met petitioner for the first time at the hearing (Tr. pp. 7-9).  The hearing proceeded with the only witness being petitioner (Tr. pp. 46-53).  The only exhibits entered into evidence were petitionerís impartial hearing request (Parent Ex. A), the impartial hearing officerís July 11, 2005 letter to the parties (IHO Ex. 1) and the studentís 2004-05 individualized education program (IEP) (Dist. Ex 2).3    

In an interim order dated July 24, 2005, the impartial hearing officer found that petitioner submitted no evidence to support her contention that the studentís 2004 summer program was the last agreed upon placement (IHO Decision, p. 4).

This appeal ensued pursuant to 8 NYCRR 279.10[d].  On appeal, petitioner requests that the impartial hearing officerís interim order be vacated and seeks a determination that the studentís pendency placement for summer 2005 is a full-day special education class with language arts instruction, counseling, an aide, nursing services and trips into the community.   

By letter to the Office of State Review, dated September 23, 2005, which was copied to counsel for petitioner, counsel for respondent advised that petitioner had withdrawn her request for an impartial hearing. Respondentís counselís letter had correspondence attached, dated September 13, 2005, from petitionerís counsel to the impartial hearing officer notifying the impartial hearing officer that petitioner had withdrawn her request for an impartial hearing.  No response has been received by the Office of State Review from petitioner disputing the fact that petitionerís due process request for an impartial hearing had been withdrawn.

The pendency provisions of the Individuals with Disabilities Education Act (IDEA) and the New York State Education Law require that a child remain in his or her "then-current educational placement," unless the childís parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the child (20 U.S.C. ß 1415[j]; 34 C.F.R. ß 300.514; N.Y. Educ. Law ß 4404[4]).  Pendency has the effect of an automatic injunction, which is imposed without regard to such factors as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Drinker v. Colonial School Dist., 78 F.3d 859 [3d Cir. 1996]; Zvi D. v. Ambach, 694 F.2d 904 [2d Cir. 1982]).

 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]).  Consistent with the mootness doctrine, State Review Officers have determined that there is no need to decide issues on appeal that are no longer in controversy, or to make a determination that would have no actual effect on the parties (Application of a Child with a Disability, Appeal No. 05-018; Application of a Child with a Disability, Appeal No. 02-110; Application of a Child with a Disability, Appeal No. 98-73; Application of a Child Suspected of Having a Disability, Appeal No. 95-60).

Since petitioner has withdrawn her underlying request for an impartial hearing challenging the studentís program and placement for the summer 2005 and the 2005-06 school year, I find that petitionerís appeal of the interim order determining the studentís pendency placement during the due process proceeding is moot.

 

            THE APPEAL IS DISMISSED.

 

Dated:

Albany, New York

__________________________

October 26, 2005

PAUL F. KELLY
STATE REVIEW OFFICER

 

1   In the caption of the verified petition, the studentís mother is named as the ďparents of the student.Ē  In the memorandum of law submitted with the verified petition, the names of both of the studentís parents appear in the caption.  In reviewing the body of the verified petition, I note that the studentís mother is referenced throughout as ďpetitionerĒ and that the studentís mother alone verified the contents of the petition.  Given this, I will refer to the mother as petitioner for the purpose of this appeal.

2   The studentís educational history is set forth in two previous decisions, Application of a Child with a Disability, Appeal No. 04-021, and Application of a Child with a Disability, Appeal No. 05-066, and will not be repeated here. 

3  Other documents, including the studentís 2005-06 IEP, were offered for admission into the record at the hearing, but were excluded as a result of the impartial hearing officer sustaining petitionerís objection to the introduction of any evidence the substance of which has not been disclosed to such party at least five days before the hearing (8 NYCRR 200.5[i][3][xii]).