91-018

Petitioner appeals from the determination of an impartial hearing officer finding that the hearing officer lacked jurisdiction to consider petitioner's assertion that respondent's former school psychologist had filed a report of suspected child abuse by petitioner and his wife with the New York State Child Abuse and Maltreatment Register (Child Protective Services) in retaliation against petitioner for having requested an impartial hearing with respect to the pupil's educational program. Respondent Board of Education cross-appeals from the hearing officer's decision, to the extent that the hearing officer rendered an advisory opinion ordering respondent to cease allowing its school psychologist to serve as chairperson of respondent's committee on special education (CSE) with respect to any pupil who has been evaluated by the psychologist and for whom the psychologist makes a recommendation to the CSE. The appeal must be dismissed, and the cross-appeal must be sustained.

Petitioner's fourteen year old child was initially classified as learning disabled in December 1988, while he was in seventh grade. The pupil has difficulty with written expression, also known as dysgraphia, and has an attention deficit disorder. He is presently in ninth grade in respondent's high school, where he is mainstreamed for all of his courses. The pupil receives resource room services, and his individualized education program (IEP) provides for testing modifications and the pupil's use of a word processor, computer and tape recorder. The pupil's classification as learning disabled and his educational program are not in dispute.

The pupil's parents met with the CSE on February 15, 1990, in an attempt to resolve their concerns, not the subject of this appeal, about the pupil's educational program. On February 16, 1990, the parents withdrew their request for an impartial hearing. However, on March 6, 1990, the parents again requested that an impartial hearing be held. Although the record shows that the hearing officer scheduled the hearing to commence on March 30, 1990, no hearing was held until November 7, 1990. The record does not reveal the reason for the delay, although it suggest that it was by agreement of the parties. In any event, neither party contests the timeliness of the hearing.

On July 25, 1990, the parents met with the CSE for the purpose of preparing the pupil's Phase I IEP for the 1990-91 school year. The CSE met again with the parents on August 23, 1990 to revise the Phase I IEP, which was approved by the Board of Education on September 17, 1990. Although the parents and the CSE agreed that the pupil requires counseling, the parents expressed a preference for private counseling at respondent's expense. The CSE agreed only to consider the parents' request for private counseling. It ultimately determined to have a school social worker counsel the pupil individually, once per week. The pupil declined to accept counseling by the school social worker from the start of school in September, 1990. The CSE met with the pupil's parents on two occasions in September and once in October, 1990, but the respondent would not agree on having the pupil counseled by anyone other than the social worker.

At the opening of the impartial hearing on November 7, 1990, petitioner's lay advocate asserted that respondent had failed to provide an educational program which met the pupil's needs, and requested that the hearing officer order the Board of Education to place the pupil in an appropriate program in another school district. The advocate also asked that respondent pay for private counseling of the pupil. The lay advocate asserted that respondent had failed to negotiate in good faith with the parents during March and April, 1990 with regard to the provision of counseling services, and had reported petitioner and his wife to Child Protective Services in order to pressure them into withdrawing their request for a hearing.

When the hearing resumed on December 11, 1990, the CSE chairperson testified that, in her opinion, the pupil's IEP should be revised to provide for consultation between a special education teacher and the pupil's regular education teachers. The hearing was adjourned to afford the parties an opportunity to meet on December 12, 1990, for the purpose of revising the pupil's IEP. The record does not reveal the details of the amended IEP, which was accepted by the parents on December 13, 1990 and approved by the Board of Education on December 17, 1990.

When the hearing reconvened on January 17, 1990, the parties advised the hearing officer of the agreement which they had reached with regard to the pupil's IEP for the 1990-91 school year. However, petitioner's lay advocate asserted that there were two issues to be decided by the hearing officer. The first issue was described by the advocate as the involvement of Child Protective Services in respondent's dispute with petitioner concerning the services provided to the pupil. The advocate asserted that respondent's former school psychologist had filed a child abuse report solely because petitioner had requested an impartial hearing.

The second issue raised by the advocate was whether it was appropriate for the CSE chairperson to be involved with the CSE in any matter in which the chairperson had prepared a psychological evaluation and/or a recommendation for the CSE. This issue was initially raised by the advocate in a memorandum to the hearing officer after the hearing was adjourned on December 11, 1990. No testimony was taken with respect to either issue, although the hearing officer agreed to accept written argument from petitioner and respondent.

In a decision dated March 14, 1991, the hearing officer found that he lacked jurisdiction to determine the first issue, because the parents had withdrawn their request for a hearing. With respect to the second issue, the hearing officer noted that neither Federal nor State statute or regulation precludes a school psychologist from serving as the chairperson of a CSE, and he recognized that there was no dispute as to the pupil's classification or the program and services to be provided. Nevertheless, the hearing officer decided that he had "jurisdiction to ... [order] cessation of the practice of an individual acting as chairperson of the CSE in which he/she has submitted a psychological evaluation containing recommendations to the CSE." (Decision, p. 6)

Petitioner asserts that the hearing officer erred in declining to consider his complaint with regard to the school psychologist's alleged reporting of petitioner and his wife to Child Protective Services for possible child abuse. He further asserts that respondent attempted to subvert his rights as a parent by reporting him to Child Protective Services, rather than holding an impartial hearing to review his refusal to allow his child to receive counseling from a school employee. Petitioner contends that the hearing officer should have considered his claim of a procedural violation by respondent, because the Individuals with Disabilities Education Act (20 USC 1401 et seq.) affords parents the right to an impartial hearing on any issue concerning the provision of a free appropriate public education. With respect to the alleged procedural violation, petitioner asserts that he was entitled to receive written notice from respondent concerning the school district's position as to counseling for the pupil, pursuant to 34 CFR 300.504 (a)(2).

I must first note that although petitioner has attached to his petition various form letters from Child Protective Services purporting to show that respondent's former school psychologist did file a report with Child Protective Services, those documents were not part of the record before the hearing officer and there has been no testimony to establish that a report was in fact filed. I make no finding as to the truth of petitioner's assertion that a report was filed by the school psychologist, or the appropriateness of such a report pursuant to the provisions of Section 413 of the Social Services Law. That statute requires school officials to report suspected child abuse. It is not necessary that I find whether the alleged report was appropriate in order to determine whether petitioner had raised an issue which was within the power of the hearing officer to decide.

Although I agree with the hearing officer that the issue which petitioner sought to have decided by the hearing officer could not be decided by the hearing officer, I do not agree with the basis for his conclusion. The hearing officer found that the pupil's parents were entitled to have an impartial hearing on the issue of school based counseling services, but that they had withdrawn their request for a hearing and that he was powerless to determine the reason why the parents had withdrawn their request.

Once a parent withdraws his request for a hearing, a hearing officer must terminate the hearing (Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 138). Although the hearing officer did not explicitly identify the hearing or petitioner's withdrawal of his request for a hearing, I note that the documents attached to the petition reveal that on February 16, 1990 petitioner wrote a letter to another hearing officer withdrawing his request for a prior hearing. The alleged reporting of petitioner and his wife to Child Protective Services occurred on March 2, 1990. On March 6, 1990, petitioner requested the hearing over which this hearing officer presided. At the first day of the hearing on November 7, 1990, petitioner's advocate raised the issue of the alleged misuse of the child abuse reporting system by respondent's former school psychologist. I find that the hearing officer was not precluded by the previous withdrawal of petitioner's request for a hearing from considering petitioner's assertion in the hearing which he conducted. However, the central issue is whether petitioner's complaint is a matter which is properly asserted in an impartial hearing.

Federal regulation accords the parent of a child with a handicapping condition or a school district the right to initiate an impartial hearing on any of the matters set forth in 34 CFR 300.504 (a)(1) and (2) (34 CFR 300.506 [a]). 34 CFR 300.504 (a)(1) and (2) read as follows:

"Notice. Written notice which meets the requirements under Section 300.505 must be given to the parents of a handicapped child a reasonable time before the public agency:

(1) Proposes to initiate or change the identification, evaluation, or educational placement of the child or the provision of a free appropriate public education to the child, or

(2) Refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of a free appropriate public education to the child."

The alleged reporting of petitioner and his wife by the former school psychologist to Child Protective Services was clearly not a proposal or a refusal by respondent to initiate a change in the identification, evaluation or educational placement of petitioner's child. Petitioner asserts that the alleged reporting relates to the provision of a free appropriate public education. Federal regulation defines a free appropriate public education as special education and related services which are provided at public expense and under public supervision, in conformity with a pupil's IEP (34 CFR 300.4).

The record does not reveal the specific nature of the dispute between petitioner and respondent with regard to counseling services. However, the alleged reporting of the pupil's parents to Child Protective Services is not a change or a refusal to change the provision of any component of a free appropriate public education. Consequently I am unable to find any basis for concluding that the alleged reporting of petitioner and his wife to Child Protective Services is a matter requiring that written notice be given to petitioner pursuant to 34 CFR 300.504 (a)(1) or (2), or about which petitioner is entitled to an impartial hearing pursuant to 34 CFR 300.506 (a). The comparable State regulations similarly do not accord the right to either written notice or a hearing to the parent of a child with a handicapping condition (8 NYCRR 200.5 [a][1] and 200.5 [c]).

Although a parent is not entitled to receive an impartial hearing with respect to matters which do not involve the identification, evaluation, educational placement or provision of a free appropriate public education to a child, Federal regulation mandates that each State establish complaint procedures to resolve complaints that a local educational agency has violated a Federal statute or regulations which apply to a Federally funded program (34 CFR 76.780). In accordance with this requirement, the State Education Department's Office for the Education of Children with Handicapping Conditions must respond to written complaints of this nature. Therefore, I will refer this matter to the Office for the Education of Children with Handicapping Conditions (Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 211).

I will note that the New York State Social Services Law provides limited immunity to persons reporting allegations of suspected child abuse that are made in good faith (Social Services Law Section 419), but there are also criminal penalties for the false reporting of such abuse (Penal Law Section 240.55 [3]) as well as potential civil liability pursuant to Federal law for the denial of due process of law under color of law (42 USC 1983).

With regard respondent's cross-appeal from the hearing officer's decision, I note that the hearing officer found that he had jurisdiction to direct respondent to discontinue the practice of allowing its CSE chairperson to evaluate a pupil and to preside at a CSE meeting at which the chairperson's evaluation is discussed. However, the hearing officer noted that petitioner had consented to the pupil's IEP for the 1990-91 school year. In the absence of any dispute as to the IEP, the hearing officer recognized that his opinion as to the propriety of having the chairperson preside at meetings during which the chairperson's evaluations are discussed was merely advisory.

The limited record which is before me includes a classroom observation of the pupil by respondent's former school psychologist, who was also the CSE chairperson until September, 1990. The school psychologist made no recommendation in his observation, and there is no evidence of any psychological evaluation by that individual. There was no testimony in the record to establish that the psychologist made any recommendation to the CSE in the preparation of the pupil's IEP for the 1990-91 school year. In essence, the hearing officer rendered an advisory opinion upon an assumed set of facts. I find that it was inappropriate for the hearing officer to render an advisory opinion, in the absence of any dispute as to the identification, program or placement of the pupil and the absence of a factual basis for his conclusion. Although I will annul the portion of the hearing officer's decision concerning the dual role of the CSE chairperson for the foregoing reasons, I will not render an advisory opinion on the merits of that issue (Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 262).

THE APPEAL IS DISMISSED AND THE CROSS-APPEAL IS SUSTAINED.

IT IS ORDERED that the decision of the hearing officer on the second issue discussed therein be, and the same hereby is, annulled.