91-022

Petitioners appeal from an interim order issued by an impartial hearing officer in response to petitioners' request for a ruling as to the procedure by which short-term instructional objectives and the criteria by which a child's achievement of such objectives will be measured are to be developed and included in the individualized education program (IEP) of a child with a handicapping condition. The appeal must be sustained in part.

        At a hearing held on March 25, 1991, a lay advocate for petitioners asserted that petitioners sought to have their child's IEP amended to reflect instructional objectives which would permit the child to generalize what she learned in class for use in alternative settings such as her home. Petitioners also sought to have the child's IEP amended to provide for her participation in co-curricular activities, for which she would be graded on the basis of her attendance, and to include a notation that special consideration should be given to the child's interest in sign language. In addition, petitioners requested that they receive counseling with respect to the activities of daily living training which their child was receiving. Although petitioners' advocate and respondent's attorney alluded to a January, 1991 meeting of the CSE at which the child's IEP had been amended, they did not reveal whether any of these matters had been discussed with the CSE.

        Shortly after the hearing commenced, the parties withdrew to discuss a possible settlement. The hearing resumed, following lengthy negotiations which produced an agreement between petitioners and representatives of the CSE that the child's IEP would be amended to provide for her participation in co-curricular activities, with her success in such activities to be formally measured by her attendance. They also agreed that a notation would be added to the child's social history, reflecting her interest in sign language and providing consideration for opportunities to develop her signing skills. It was further agreed that respondent would provide petitioners with parent counseling once each week for 30 minutes, to assist them in reinforcing the child's instruction in activities of daily living.

        The lay advocate for petitioners and respondent's attorney advised the hearing officer that they had not resolved their disagreement about the procedure by which short-term instructional objectives and evaluation criteria to measure the child's achievement of such objectives should be included in the child's IEP. Respondent's attorney acknowledged that the child's Phase I IEP did not include short-term objectives and evaluation criteria, despite a State regulation requirement that it must do so, but asserted that the CSE wished to hold another meeting at which these items could be added to the IEP. Petitioners' advocate asserted that the objectives and criteria should have been included in the child's Phase I IEP, and requested that the hearing officer either make an oral ruling or issue an interim order defining the procedure for inclusion of short-term objectives and evaluation criteria in a Phase I IEP. The hearing officer asked that the parties submit legal memoranda on the issue raised by petitioners. At petitioners' request, the hearing officer adjourned the hearing.

        On April 30, 1991, the hearing officer rendered an opinion, which he characterized as an interim order, in which he held that respondent had appropriately complied with the provisions of State regulations relating to IEPs in preparing the IEP of petitioners' child. The hearing officer further held that he lacked jurisdiction to determine the issue of an alleged conflict between Federal and State regulations with respect to the preparation of IEPs, and that in any event, a recent amendment to State regulations had rendered the issue moot.

        Before considering petitioners' objections to the hearing officer's decision, I must make two preliminary observations. The record reveals that, at the commencement of the hearing, petitioners' advocate stated her intention to make a motion for the hearing officer to recuse himself, upon the ground that the hearing officer had a conflict of interest because of his past or present employment and because he had allegedly had exparte contacts with employees of the school district. The advocate subsequently stated that she would not move that the hearing officer recuse himself, but would reserve the right to make that motion after the hearing officer had ruled on petitioners' motion for an interim decision.

        Any question as to the impartiality of a hearing officer should be resolved at the outset of a hearing, after the hearing officer has disclosed any professional or personal interest which could conflict with his or her impartiality (Application of a Child with a Handicapping Condition, 28 Ed. Dept. Rep. 240; Application of a Child with a Handicapping Condition, 29 id. 138). Although petitioners have not raised the issue of the hearing officer's impartiality in this appeal and there is nothing in the record before me which would afford a basis for reaching a conclusion as to his impartiality, I must nevertheless find that the hearing officer erred in failing to make any disclosure of potentially conflicting interests, and in failing to immediately address the issue of his impartiality after it had been raised by petitioners' advocate.

        Federal and State regulations accord the parents of a child with a handicapping condition the right to an impartial hearing with respect to the classification of the child and the educational program and services to be provided to the child (34 CFR 300.506 [a]; 8 NYCRR 200.5 [c]). At a hearing, areas of disagreement between the parents and the school district are identified, and evidence and legal arguments in support of their respective positions are presented to the hearing officer. The record which is prepared at the hearing provides a basis for applying the law to the facts in the hearing officer's decision, as well as that of the State Review Officer if State-level review is sought.

        In this instance, there was no record to support petitioners' request for a preliminary ruling with regard to the way in which IEPs are to be developed. No testimony was given at the hearing and no evidence was admitted into the record. It was improper for the hearing officer to render a decision, in the absence of any evidence as to the child's IEP or the manner in which it had been prepared. The hearing officer's conclusion that the CSE had complied with State regulations in preparing the child's IEP is clearly untenable. To that extent, I find that petitioners' appeal must be sustained.

        Petitioners' premature request for a ruling at the hearing presents a similar problem in this appeal. Petitioners now assert that the CSE failed to include in their child's Phase I IEP a goal for activities of daily living, with appropriate short-term instructional objectives and objective evaluative criteria. They further assert that there is no correlation between the goals and objectives set forth on the child's Phase I IEP and the goals and objectives set forth on the child's Phase II IEP, and that the latter merely reflect programs and services which are available at the BOCES, rather than the child's needs. Although petitioners have submitted a number of documents, including copies of what appear to be the child's Phase I and Phase II IEP, there is no basis in the record upon which I could determine what the child's needs are and whether her IEP appropriately addresses her needs. Those issues must be initially resolved by a hearing officer upon consideration of testimony and documentary evidence.

        Petitioners request that I declare that the two-stage process by which IEPs are developed in New York (8 NYCRR 200.4 [c] and [e]) violates Federal regulations, and that I identify the legal standard which school districts in New York must employ in formulating short-term instructional objectives for a child's IEP.

        I must decline petitioners' request to issue what in essence would be an advisory opinion on an issue which is now moot. The State Review Officer is responsible for reviewing and, where necessary, modifying any determination of an impartial hearing officer "... relating to the determination of the nature of a child's handicapping condition, selection of an appropriate special education program or service and the failure to provide such a program ..." (Education Law Section 4404 [2]). I must also note that there does not appear to be any real dispute as to the law in this matter.

        For a number of years, State regulation provided for a two-stage IEP process. At the first stage, or Phase I, a CSE would develop an IEP which would include annual goals for a child, which were to be consistent with the child's needs and abilities. If the child was initially entering special education, the Phase I IEP was also required to include instructional objectives and evaluative criteria to be followed for the period between the child's first placement and the completion of a Phase II IEP, which would be accomplished at a planning conference held no later than 30 days after a child entered special education (8 NYCRR 200.4 [c][2[[iii] and [e][1]). The Regulations of the Commissioner of Education were amended, as of June 26, 1990, to require that the Phase I IEP of each child, not just those newly entering special education, include instructional objectives and evaluative criteria to be followed until completion of the child's Phase II IEP. Coincidently on April 30, 1991, the same day that the hearing officer rendered his interim order, the Regulations of the Commissioner of Education were further amended to eliminate the two-stage IEP process of which petitioners complain. As amended, 8 NYCRR 200.4(c) (2)(iii) provides that a recommendation of the CSE, which is also reflected in a child's IEP, must:

"list annual goals that are consistent with the pupil's needs and abilities and short-term instructional objectives and evaluative criteria to be followed during the period beginning with placement and ending with the next scheduled review by the committee. Such short-term instructional objectives shall be measurable, intermediate steps between present levels of educational performance and the annual goals that are established for a pupil with a handicapping condition."

        The April 30, 1991 amendments do provide for planning conferences to complete IEPs for the 1990-91 or 1991-92 school years which were developed before the amendments were promulgated. However, all IEPs developed by CSEs after April 30, 1991 are required to be single documents which include short-term instructional objectives, as defined in the amended 8 NYCRR 200.4 (c)(2)(iii), and evaluative criteria to determine whether the child has achieved those objectives. The amendments to the Regulations of the Commissioner of Education provide the legal standards which petitioners request that I declare in this appeal (See also 34 CFR 300.346 and 34 CFR 300 Appendix C, Question 39). Insofar as the complained of regulation has been amended in conformity with the argument raised by petitioners, the issue is moot and need not be addressed further.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the decision of the hearing officer be, and the same hereby is, annulled to the extent that said decision held that the school district appropriately followed all aspects of 8 NYCRR 200 with respect to the preparation of the child's IEP.