93-027

Petitioners appeal from the decision of an impartial hearing officer which annulled the recommendation of respondent's committee on special education (CSE) that petitioner's child be placed in respondent's specialized instructional environment-VII (SIE-VII) program for the 1992-93 school year, if the child ceased to attend school in the special act school district in which he had been placed by the New York City Child Welfare Administration. The appeal must be dismissed.

In August, 1987, when petitioners' child was about to enter second grade, he was classified as emotionally disturbed. He was last evaluated in April, 1992, when he achieved a full scale IQ score of 128, which placed him in the superior range of intellectual functioning. However, the child's insight and judgment were reported by a psychiatrist to be limited. The child also has a history of hyperactivity and behavioral difficulties. The child has taken medication to control his attention deficit disorder, but the treatment has been of limited effectiveness because of the side-effects of the medication. In April, 1992, the child was hospitalized in the Mount Sinai Medical Center. A psychiatric report prepared at the time of his hospitalization described the child as extremely irritable, quite oppositional, and unable to form attachment to peers. He was diagnosed as having an attention deficit hyperactivity disorder and an oppositional defiant disorder. The child's classification as emotionally disturbed is undisputed.

Upon his initial classification as emotionally disturbed, the child was enrolled in respondent's modified instruction services-II (MIS-II) program, where he remained for almost two years. In April, 1989, the child was hospitalized in the Long Island Jewish Hospital for treatment of his hyperactivity. Approximately two months thereafter, the child was placed by his mother through the auspices of the New York City Child Welfare Administration in the Mount Pleasant Cottage School, which is a State approved residential school operated by the Jewish Child Care Association of New York for children who are emotionally disturbed. The property on which the school is located has been incorporated into a "special act school district" (see Chapter 566 of the Laws of 1967, as amended), and is known as the Mount Pleasant Cottage School Union Free School District (Mount Pleasant).

In July, 1991, Mount Pleasant referred the child to respondent's CSE to recommend an appropriate day program for the child upon his return to petitioners' home. In August, 1991, respondent's CSE recommended that the child be enrolled in the MIS-II program and that he receive individual counseling. In September, 1991, the child was enrolled in a MIS-II class for sixth grade in respondent's I.S. 74. The child remained in the MIS-II program until March, 1992. While in school, the child was reported to have progressed academically and to have exhibited reasonably good behavior. However, the child became increasingly unmanageable at home.

On March 24, 1992, the child was admitted to the Elmhurst Hospital, following an incident in which he had allegedly threatened to harm an infant sibling. The child was subsequently transferred to Mount Sinai Medical Center for psychiatric care. The child remained at Mount Sinai until September, 1992, when he was again placed by petitioners through the Child Welfare Administration in Mount Pleasant.

In June, 1992, petitioners referred the child to respondent's CSE for a recommendation for the child's program for the 1992-93 school year. Following a series of delays in obtaining relevant information and scheduling a CSE meeting, respondent agreed to allow petitioners to enroll the child in any approved private day, i.e., non-residential, school at respondent's expense, in accordance with the order of the court in Jose P. et al. v. Ambach et al. (79 C 270, U.S. D.C. E.D. N.Y., 1982). Petitioners chose not to exercise that placement option, and the child has remained in Mount Pleasant.

At a meeting of the CSE on November 23, 1992, petitioners requested a residential placement for the child. Instead, the CSE recommended that the child remain classified as emotionally disturbed, and that he be enrolled in the SIE-VII program and receive group and individual counseling. Petitioners disagreed with the CSE's program recommendation, and requested that an impartial hearing be held. The hearing was held on December 17, 1992. At the hearing, the CSE's school psychologist testified that the recommended program would not be located in a public school, but would be in a therapeutic environment, such as a hospital. Respondent's psychiatrist testified that the child should remain at Mount Pleasant.

In a decision dated January 5, 1993, the hearing officer found that the CSE's recommendation was inappropriate, because it provided for the child's immediate placement in the SIE-VII day program, without regard to the child's present need for a residential placement. The hearing officer further found that the child's continued placement was appropriate, because it afforded the child an opportunity to achieve meaningful educational benefits. However, the hearing officer denied petitioners' request for an order directing respondent to assume financial responsibility to pay for the child's placement in Mount Pleasant, because petitioners had not incurred any expenses for the child's placement in Mount Pleasant. The hearing officer opined that, if in the future petitioners did incur expenses for the child's placement and respondent did not reimburse petitioners for such expenditures, petitioners could challenge respondent's refusal to pay for their expenditures in an impartial hearing.

In February, 1993, petitioners appealed from the hearing officer's decision. However, they withdrew their appeal on March 11, 1993, after entering into a stipulation with respondent. The stipulation provided, in part, that respondent would assume financial responsibility for the child's tuition during the 1992-93 school year, if petitioners incurred expenses for all or any part of such tuition, and to provide the child with a free appropriate public education including all programs and services deemed to be appropriate by respondent's CSE for the child's residential placement at Mount Pleasant. Respondent agreed to timely evaluate the child's educational needs for the 1993-94 school year. On May 23, 1993, the CSE reviewed reports prepared by its staff and the staff of Mount Pleasant, and recommended that the child be placed in respondent's SIE-VII program "pending discharge from Pleasantville Cottage School [Mount Pleasant]."

On June 28, 1993, petitioners commenced this appeal. They assert that respondent did not comply with the terms of the stipulation, because the CSE's recommendation for the 1993-94 school year is allegedly contingent upon the child's discharge from Mount Pleasant and that respondent has not met its obligation to offer the child an appropriate program and placement for the 1993-94 school year. They request that their petition to review the hearing officer's decision concerning the child's program and placement for the 1992-93 school year be reinstated.

Respondent asserts that it has complied with the terms of the stipulation. It further asserts that petitioners are precluded from obtaining any relief from the State Review Officer on the issues raised in their present petition because they have already obtained all of the relief which they could have obtained with regard to the 1992-93 school year, and because petitioners have not exhausted their administrative remedy of an impartial hearing concerning the CSE's recommendation for the 1993-94 school year. Respondent also asserts that the State Review Officer may not consider any event which occurred subsequent to the hearing officer's decision.

The threshold issue in this appeal is whether petitioners may seek review of the hearing officer's decision regarding the child's educational program for the 1992-93 school year in view of the stipulation they entered into with respondent. Assuming for the moment that I have the authority to relieve petitioners from their obligations under the stipulation (Matter of Frutiger, 29 NY 2d 143 [1971]; Teitlebaum Holdings, Ltd. v. Gold, 48 NY 2d 51 [1979]), the question remains whether there is any basis for doing so. Stipulations are favored by the courts as a means of settling disputes, and they may not be lightly set aside. They may be invalidated only when there would be sufficient cause to invalidate a contract, e.g., fraud, collusion, mistake or accident (Hallockv. State of New York, 64 NY 2d 224 [1984]).

Petitioners assert that they were induced to enter into the stipulation by respondent's representations that its CSE would evaluate the child's needs for the 1993-94 school year, and that respondent would take financial responsibility for the child's placement in Mount Pleasant or another residential school, if the CSE recommended a residential placement for the child. They do not dispute that the CSE conducted a timely evaluation of the child's needs for the 1993-94 school year, nor do they allege that respondent had represented that its CSE would recommend a residential placement for such school year. Although they disagree with the CSE's recommendation for the 1993-94 school year, I cannot consider the appropriateness of that recommendation because petitioners have not exhausted their administrative remedy of an impartial hearing (20 USC 1415 [c]; Section 4404 [2] of the Education Law). On the record before me, I find there is no basis for excusing petitioners from the consequences of their stipulation with respondent.

Petitioners' appeal from the hearing officer's decision regarding the 1992-93 school year must also be dismissed as moot (Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 482). The 1992-93 school year has concluded. Although a claim for monetary reimbursement would survive the ending of a school year (Application of a Child with a Disability, Appeal No. 93-26), petitioners do not assert that they have paid, or been asked to pay, any sum of money for the child's attendance at Mount Pleasant for the 1992-93 school year. Nor is it likely that they will be asked to pay for the child's placement in the special act school district by the New York City Child Welfare Administration, because the latter entity is financially responsible for the cost of such placement (Section 4004 [2][a] of the Education Law).

Finally, I note that petitioners' assertion that respondent's CSE must make a recommendation for the child's placement, notwithstanding his present placement in a special act school district, is incorrect. Section 4005 [2][a] of the Education Law requires the CSE of the special act school district to prepare the child's individualized education program (IEP). While the child's parents may challenge the IEP prepared by the special act district, any challenge to an IEP prepared by the CSE of the child's school district of residence is at best academic (Appeal of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 348).

THE APPEAL IS DISMISSED.