95-052

       Petitioner appeals from the decision of an impartial hearing officer which found that petitioner had violated the terms of an agreement to have petitioner's child independently evaluated in a timely manner, which agreement had been incorporated in the hearing officer's decision in a prior hearing. The appeal must be dismissed.

        Petitioner's child is twelve years old. During the 1994-95 school year, the child was in the sixth grade. Petitioner's son was referred to respondent's committee on special education (CSE) in June, 1993, as the child was completing the fourth grade. The child was referred by his teacher, who was concerned about the child's below grade level reading and English skills. At the time of his referral to the CSE, the child's reading skills were approximately three years below his expected grade level.

        Petitioner declined to give his consent to have the CSE evaluate his child. Federal and State regulations provide that a CSE must obtain the consent of a child's parents before an initial evaluation of a child suspected of having a disability is performed, provided that the CSE may initiate a hearing to obtain authorization by a hearing officer to conduct an evaluation without the parents' consent (34 CFR 300.504 [b]; 8 NYCRR 200.5 [b][3]). Respondent initiated a hearing, which was held in December, 1993. The hearing officer in that proceeding noted that respondent's extended effort to obtain the parents' written consent for the evaluation of their child violated the child's right to a prompt resolution of the issue of whether he should be evaluated. On the merits, the hearing officer held that respondent had presented adequate evidence to afford a basis to suspect that the child could have a disability in the areas of reading and writing. Petitioner's appeal from the hearing officer's decision was dismissed, upon a finding that the record revealed that the child had made very little progress in language-based skills from kindergarten through the fourth grade despite having received remedial assistance in both reading and writing (Application of a Child Suspected of Having a Disability, Appeal No. 94-3).

        Petitioner's appeal was dismissed in March, 1994. In April, 1994, the child was observed in his regular education fifth grade class (See 8 NYCRR 200.4 [b][4][viii]). He was evaluated by a school psychologist in May, 1994, and he was examined by a school physician in June, 1994. On June 22, 1994, the CSE recommended that the child be classified as learning disabled, and that he receive instruction in reading and language arts in a self-contained special education class, in addition to one period of resource room services per day. The child was to receive the remainder of his instruction in a regular education sixth grade class during the 1994-95 school year.

        The child's parents were notified of the CSE's recommendation in June, 1994. They withheld their consent for the child's placement in the special education program which the CSE had recommended. Since the child had not previously been placed in a special education program, the CSE was required by Federal and State regulations to obtain the parents' consent to the boy's initial placement in a special education class, or to obtain authorization by an impartial hearing officer to place the child in such class without the parents' consent (34 CFR 300.504 [b][1][ii]; 8 NYCRR 200.5 [b][1] and [3]). Respondent initiated an impartial hearing, which was held on September 8, 1994. In a decision which was dated September 25, 1994, the impartial hearing officer held that respondent had met its burden of proof in demonstrating the appropriateness of the child's proposed classification and placement.

        Petitioner appealed from the hearing officer's decision to the State Review Officer. On December 2, 1994, petitioner's appeal was sustained, upon the grounds that an appearance of impropriety had been created by the CSE chairperson's apparent involvement in respondent's appointment of the hearing officer, and that the CSE's evaluation of the child was incomplete (Application of a Child with a Disability, Appeal No. 94-37). Respondent was ordered to complete an evaluation of the child's speech and language skills, and his writing skills, within thirty days after the date of the State Review Officer's decision. In that decision, it was noted that petitioner and his wife had not cooperated with the CSE, because they had not given certain information to complete the child's social history, and had provided the child with a note purporting to assert rights which he did not have and which precluded the CSE from completing its evaluation. The parents were directed to cooperate with the CSE in completing its evaluation of the child.

        There are brief references in the record to evaluations which were performed after the decision in Application of a Child with a Disability, Appeal No. 94-37. In January, 1995, the CSE reportedly met, and made certain recommendations. However, the record does not reveal what the CSE expressly recommended. In any event, the CSE's recommendations were not implemented because petitioner sought to have an independent evaluation of his son, performed at respondent's expense. He requested that an impartial hearing be held, so that he could obtain a hearing officer's order directing respondent to pay for the proposed evaluation.

        A hearing was held on February 15, 1995. Respondent's attorney asserted that respondent was willing to pay for the child's independent evaluation, notwithstanding respondent's belief that its evaluation of the child was adequate. Petitioner, respondent's attorney, and the hearing officer discussed the conditions under which the evaluation would be performed. The parties agreed that petitioner would reveal the name of the independent evaluator to respondent, by no later than February 22, 1995, and that respondent would notify petitioner of any objection it might have to the independent evaluator, by no later than February 27, 1995. They also agreed that the independent evaluation would be completed within 45 days after February 27, 1995, and that if it could not be completed within that period of time, petitioner would notify respondent. In order to preclude the possibility of duplicative testing, respondent's school psychologist provided petitioner with the names of the psychological tests which had been given to the child in two school district evaluations. Respondent's attorney represented that the CSE would consider the results of the independent evaluation, and would not act until the evaluation was performed. Petitioner agreed to provide the information necessary to complete the child's social history. Respondent's attorney suggested, and petitioner agreed, that the hearing officer would retain jurisdiction in the matter to ensure compliance by the parties with their agreement.

        In a brief decision which was dated March 11, 1995, the hearing officer described the agreement which the parties had reached, while indicating that no findings of fact or legal holdings were required because there was no disagreement between the parties.

        By letter dated April 25, 1995, respondent's Director of Special Education advised petitioner that respondent had not received the report of the child's independent evaluation, which should have been completed by April 13, 1995, and asked petitioner for an explanation of why the report had not been received. Petitioner replied to the Director of Special Education, in a letter dated April 28, 1995. He asserted that the earliest appointment he could obtain for the child with the independent evaluator was on May 10, 1995. Petitioner asked that respondent provide a written commitment to pay for the independent evaluation. In a letter to petitioner, which was dated May 2, 1995, respondent's attorney asked petitioner to telephone him, so that a conference telephone call could be arranged between petitioner, the attorney, and the independent evaluator.

        Petitioner reportedly did not respond to the attorney's request. In a letter to the hearing officer, which was dated May 22, 1995, respondent's attorney requested that a formal meeting or hearing be held to address an alleged breach of the parties' agreement for the child to be promptly evaluated. By letter dated May 27, 1995, the hearing officer informed petitioner and respondent's attorney that a hearing would be conducted on June 15, 1995 " ... to ascertain the degree of compliance (or noncompliance) with the decision which I rendered on March 11, 1995 ... ".

        At the hearing which was held on June 15, 1995, respondent's attorney introduced copies of correspondence between the parties and his letter to the hearing officer requesting that a hearing be held, and the hearing officer's letter of May 27, 1995. Although petitioner did not initially object to the admission of the documents into the record, he thereafter challenged them upon the ground that they had not been disclosed to him at least five days before the hearing (cf. 8 NYCRR 200.5 [c][9]). Petitioner acknowledged that he had received copies of each of the documents prior to the hearing. The hearing officer orally ruled that petitioner had received adequate notice of the purpose of the hearing, and accepted into evidence the documents submitted by respondent.

        Petitioner also objected to the hearing officer's jurisdiction over the matter, on the ground that he had not been appointed by respondent to conduct the hearing which was held on June 15, 1995. However, the hearing officer overruled petitioner's objection because petitioner had agreed at the hearing held on February 15, 1995 that the hearing officer would retain jurisdiction to ensure that the agreement which the parties reached concerning the child's independent evaluation would be carried out by the parties.¹

        The hearing officer questioned petitioner about his compliance with the terms of the agreement. Petitioner acknowledged that he had provided the name of the independent evaluator to respondent, which had not objected to the employment of that individual as the evaluator. Pursuant to the agreement between the parties, petitioner was required to arrange for the child's evaluation by the independent evaluator. The evaluation was to be completed within 45 days after February 27, 1995, the last day on which respondent could have objected to petitioner's choice of the evaluator. Petitioner indicated that his wife had initially contacted the independent evaluator. When questioned by the hearing officer, petitioner's wife indicated that the independent evaluator had not been contacted until early April, 1995, which was near the end of the period during which the evaluation was to be performed. Petitioner thereafter testified that neither he nor his wife could recall when the independent evaluator had been initially contacted to arrange for the child's evaluation. He also testified that the initial appointment for the child had been canceled by the independent evaluator, and rescheduled for May 10, 1995. He further testified that he had canceled the child's appointment, after receiving the letter by respondent's attorney asking for a telephone conference call because he was concerned that respondent might not pay for the independent evaluator's services.

        Respondent asked the hearing officer to find that petitioner had not complied with the agreement to have the child independently evaluated. It requested that the hearing officer appoint a guardian ad litem for the child, as authorized by State regulation (8 NYCRR 200.5 [c][7]), for the limited purpose of ensuring compliance with the agreement to evaluate the child. Petitioner opposed respondent's request. The hearing officer orally ruled that he would allow both parties a period of three days in which to submit written argument with respect to respondent's request for a guardian ad litem. The hearing officer informed the parties that he would contact the independent evaluator to ascertain when petitioner or his wife had initially sought an appointment for the child, and to ascertain if the evaluator could perform the evaluation in the near future.

        In his decision dated July 17, 1995, the hearing officer indicated that he had been advised by the office manager of the independent evaluator that the child's parents had first contacted the evaluator on March 8, 1995, and had set up, and subsequently canceled, appointments for April 20, April 21, May 10 and May 15, 1995.²  The hearing officer also indicated that he had arranged with the independent evaluator to have the child evaluated within two weeks after June 19, but that the evaluation had not been scheduled to begin until July 17, 1995. The hearing officer found that petitioner had violated the agreement which he had reached with respondent at the hearing held on February 15, 1995 by waiting until April 28, 1995 to even advise respondent that the evaluation could not be completed within the agreed upon 45-day period. Although he found that petitioner had not proceeded with good faith to implement the agreement, the hearing officer denied respondent's application for a guardian ad litem. He granted leave to respondent to reapply for the appointment of a guardian ad litem if the child's independent evaluation was not completed. The hearing officer also retained jurisdiction over the matter.

        In a letter to the parties, which was dated July 25, 1995, the hearing officer indicated that he had been informed by the independent evaluator that the evaluator had withdrawn from the matter, after a disagreement with petitioner about access to the child's records. The hearing officer indicated that since the implementation of the agreement to have the child independently evaluated had now collapsed, he would hold another hearing on August 11, 1995, unless petitioner informed him that he no longer sought an independent evaluation at respondent's expense, or respondent affirmatively stated that it was willing to pay for an independent evaluation. Respondent has provided a copy of petitioner's letter to the hearing officer, dated August 8, 1995, in which petitioner informed the hearing officer that he no longer sought to have respondent pay for an independent evaluation of his child.

        The initial question presented in this appeal is whether the matter is moot. The subject of this proceeding was whether the child would have an independent evaluation at respondent's expense, and the period of time during which the evaluation was to be performed and completed. Federal and State regulations provide that the parents of a child with a disability, or who is suspected of having a disability, are entitled to obtain an independent educational evaluation at public expense, if they disagree with the school district's evaluation. However, their right to an independent evaluation is subject to the right of the school district to initiate a hearing to demonstrate the appropriateness of its evaluation. If a hearing officer finds that the school district's evaluation is appropriate the parent may have an independent evaluation, but not at public expense (34 CFR 300.503; 8 NYCRR 200.5 [a][1][vi][a]). In this instance, respondent agreed to pay for the child's independent evaluation, with certain conditions to which petitioner agreed, in lieu of holding a hearing to defend the adequacy of the district's evaluation. In his letter to the hearing officer, dated August 8, 1995, petitioner withdrew his request for an independent evaluation. The State Review Officer is not required to determine issues which are no longer in controversy, or to make a determination which will have no actual impact upon the parties (Application of a Child with a Handicapping Condition, Appeal No. 91-45).

        Petitioner does not challenge the hearing officer's finding with regard to petitioner's failure to inform respondent in a timely manner that the independent evaluation would not be completed within the agreed upon 45- day period. Instead, he contends that he was treated unfairly because he did not receive notice that an impartial hearing would be held on June 15, 1995, and because respondent was allowed to introduce evidence at the hearing that had not been disclosed to petitioner at least five days prior to the hearing. Petitioner's claim of procedural unfairness may not be moot, even if the subject of the impartial hearing is moot (Heldman v. Sobol, 962 F. 2d 148 [2d Cir., 1992]; Hiller v. Bd. of Ed. Brunswick CSD, 687 F. Supp. 735 [N.D.N.Y., 1988]).

        Although I have considered petitioner's claim of procedural unfairness, I find that there is no merit to petitioner's claim. The June 15, 1995 hearing was, in essence, a continuation of the hearing which was held on February 15, 1995. The hearing officer's letter to the parties, dated May 27, 1995, clearly indicated that a hearing would be held on June 15, 1995, and identified the subject of the hearing. Federal and State regulations afford both parties to an impartial hearing right to prohibit the introduction of any evidence of a hearing which has not been disclosed to the them at least five days before the hearing (34 CFR 300.508 [a][3]; 8 NYCRR 200.5 [c][9]). The purpose of that requirement is to prevent the parties from being surprised by the attempted introduction of evidence of which they are unaware. In view of the extremely limited subject of the hearing, and petitioner's admission that he had received each of the four documents before the hearing was held, I concur with the hearing officer's ruling to admit the documents into evidence. I have considered petitioner's other contentions, and find them to be without merit.

        The record in this proceeding reveals that petitioner has strong objections to having his son identified as a child with a disability and being provided with special education services. Although both Federal and State statutes and regulations provide parents with the opportunity to seek review of proposed actions by a CSE, they also provide that a CSE must make a prompt determination of a child's special education needs, if any, and the special education services, if any, which should be provided to the child. In view of the two years which have passed since the child was referred to the CSE, it is imperative that the CSE meet promptly to make its recommendation. Petitioner is urged to cooperate with the CSE in this matter. After the CSE has made its recommendation, petitioner will have the opportunity to challenge the recommendation, if he so chooses.

THE APPEAL IS DISMISSED.