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Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Mount Morris Central School District


Western New York Advocacy for the Developmentally Disabled, Inc., attorney for petitioners, Roger G. Nellist, Esq., of counsel

Harris, Beach and Wilcox, Esqs., attorneys for respondent, Alfred L. Streppa, Esq., of counsel


        Petitioners appeal from the decision of an impartial hearing officer which annulled a placement recommendation by respondent's committee on special education (CSE), and which directed the CSE to revise their son's individualized education program (IEP) for the 1996-97 school year. The appeal must be dismissed.

        Petitioners are the parents of a thirteen year old multiply disabled boy who has been educated either by respondent or the local Board of Cooperative Educational Services (BOCES) in classes located in respondent's school building. There is no dispute about the boy's classification. During the 1995-96 school year, the child was enrolled for the sixth grade in a BOCES intermediate level special education class with an 8:1+1 child to adult ratio in Mount Morris.

        There was reportedly no room in respondent's school during the 1996-97 school year for a BOCES special education class which was similar to the 8:1+1 class which the child had attended for the fifth and sixth grades. In June, 1996, respondent's CSE proposed that the boy be placed in a BOCES special education class with a 12:1+1 child to adult ratio in the York Central School District for the 1996-97 school year. It should be noted that the CSE did not prepare an IEP for the 1996-97 school year (cf. 8 NYCRR 200.4 [c][2]), and that the required parent member of the CSE did not attend the CSE meeting. Therefore, even if an IEP had been prepared, it would have been invalid (Application of a Child with a Handicapping Condition, Appeal No. 92-31).

        Petitioners objected to the CSE's proposal to enroll the child in the BOCES class in the York Central School District, and they requested mediation, which was unsuccessful. On July 25, 1996, they requested that an impartial hearing be held. Thereafter, some of respondent's staff prepared a draft IEP in anticipation of a CSE meeting which was scheduled to be held on August 22, 1996. The parents were not invited to attend the meeting at which the draft IEP was prepared. The CSE meeting scheduled for August 22, 1996 was not held. The CSE did not adopt the draft IEP, which provided that the child would attend the 12:1+1 BOCES class in the York Central School District.

        At petitioners' request, a hearing was held on September 19, 20, and 23, 1996. Notwithstanding the fact that the CSE had not prepared or adopted any IEP for the 1996-97 school year, the parties and the hearing officer proceeded as if the August "draft" IEP was the IEP which was at issue (cf. Application of a Child with a Disability, Appeal No. 94-13). In his decision, which was dated November 10, 1996, the impartial hearing officer found that the "draft" IEP, which indicated that the child was to be mainstreamed for lunch, music, library, assemblies, and field trips in York, and that he would participate in extracurricular activities in respondent's schools, failed to address each of the boy's needs. He noted that mainstreaming options appeared to be limited in the York placement. The hearing officer remanded the matter to respondent's CSE to revise the IEP to provide an educational program which would better prepare petitioners' son to function as an adult in the community. He directed that the CSE provide for a program which would integrate computer skills, mobility therapy, functional vocabulary, and socially appropriate behavior for the boy in a consistent structure. While invalidating the boy's proposed placement in the BOCES class in the York Central School District, the hearing officer found that there did not appear to be an educational program in respondent's schools which would completely meet the boy's needs. He observed that respondent had the right to provide for the boy's education outside of the Mount Morris School District.

        On December 16, 1996, respondent's CSE met to revise the boy's IEP. Petitioners declined to attend the CSE meeting. The CSE recommended that the boy be placed in a 12:1+1 BOCES intermediate class in the York Central School District, where he was to receive the related services of speech/language therapy, occupational therapy, counseling, and vision/mobility training.

        Petitioners ask that the hearing officer's decision be annulled, notwithstanding the fact that the hearing officer invalidated the boy's proposed placement in the out-of-district BOCES class, on the grounds that the hearing officer's decision " ... left room for the Mount Morris CSE to make the same placement recommendation" (paragraph 70 of the petition). They ask me to determine that the district's recommendation that the boy be placed in the York BOCES program is inappropriate, and to remand the matter to respondent's CSE. Respondent, which did not cross-appeal from the hearing officer's decision, nevertheless requests that I annul the hearing officer's determination that the "draft" IEP which the CSE had prepared did not address the child's needs. It also requests that I review and uphold the revised IEP which its CSE prepared on December 16, 1996 in response to the hearing officer's decision.

        I will first address respondent's request that I annul the hearing officer's determination that the boy's "draft" IEP did not adequately address the child's needs. Pursuant to Federal and State law, a hearing officer's decision is final and binding upon the parties, unless it is appealed to the State Review Officer (20 USC 1415 [e][1]; Section 4404 [1] of the Education Law). Either party may seek review of a hearing officer's decision by initiating an appeal to the State Review Officer, or cross-appealing from the hearing officer's decision when the respondent answers the petition (Application of a Child with a Handicapping Condition, Appeal No. 91-25). Although petitioners have challenged the hearing officer's decision with respect to their son's placement, they do not identify any other specific IEP issue with which they disagree. Absent either an appeal or a cross-appeal as to the adequacy of the boy's IEP, I find that I am precluded from reaching the issue of the adequacy of the "draft" IEP which the hearing officer found to be inappropriate (Application of a Child with a Disability, Appeal No. 95-40). With regard to respondent's other request that I review the adequacy of the IEP which the CSE prepared on December 16, 1996, I find that I lack the jurisdiction to do so. My jurisdiction is limited to appeals from hearing officer determinations relating to a specific program and placement recommendation. The December 16, 1996 recommendation which respondent asks me to review has not been the subject of an impartial hearing, and respondent is clearly not aggrieved by the IEP which its own CSE has prepared.

        Although respondent has not raised the issue, the initial question which I must decide with regard to petitioners' appeal is whether they are aggrieved by the hearing officer's decision. As they candidly concede in their petition, they primarily object to any placement of their son outside of respondent's schools. The hearing officer's decision from which they appeal invalidated the CSE's proposal that petitioners' son be enrolled in a BOCES class in York. Although the hearing officer observed that there did not appear to be any appropriate placement for the boy in respondent's district, his observation was at best dictum, given his finding that the draft IEP was inadequate. Consequently, there is a serious question as to whether petitioners are aggrieved by the hearing officer's decision (see Paula P.B. v. New Hampshire Dept. of Education, 17 EHLR 898 [U.S. D.C. D.N.H., 1991]). The draft IEP to which petitioners objected has been annulled. The CSE thereafter prepared an IEP on December 16, 1996. The new IEP differs from the draft IEP in some respects, but it is generally similar to the draft IEP. While I recognize that petitioners have a continuing concern about where their son should be educated, it does not follow that I have jurisdiction to consider the appropriateness of the boy's new IEP.

        A CSE must first determine a child's special education needs, and then prepare appropriate annual goals and short-term instructional objectives for the child. After those two steps have been taken, a CSE may consider what are the appropriate special education services which would afford the child a reasonable opportunity of achieving his or her IEP annual goals within the next years. The CSE must then determine what is the least restrictive environment in which the child's special education services may be provided. Only after that process has been completed, may an IEP be reviewed to determine its compliance with Federal and State standards. That review begins with an impartial hearing. My jurisdiction as a State Review Officer begins after an impartial hearing officer has reviewed the child's IEP. There has been no such review of the December 16, 1996 IEP. Therefore, I must find that I am precluded from reviewing that IEP.

        In view of the passage of time, there would appear to be little purpose served in remanding the matter for a new hearing regarding the child's IEP for the 1996-97 school year (see Application of a Child with a Disability, Appeal No. 97-9). If they have not already done so, I urge the parties to plan an educational program for the child for the 1997-98 school year. I note that the record does not reveal whether petitioners' son has had a vocational assessment, as is required by 8 NYCRR 200.4 (b)(viii). Given this child's age and his present levels of academic performance, it is essential that he receive appropriate educational services to prepare him to function as an adult, as the hearing officer directed. The child also appears to need an extensive amount of related services, which together with an appropriate occupational education program, may greatly limit the amount of instruction which he is to receive in his primary classroom. As the child appears to have difficulty making transitions, the CSE should carefully consider where the child can receive the services which he needs, with a minimum amount of transitions, and with a maximum amount of coordination and consistency.

        Finally, I note that petitioners have requested that I direct respondent to meet with them to develop an educational program for the boy as his "status quo", or pendency placement (see 20 USC 1415 [e] [3] [A]; Section 4404 [4] of the Education Law). In view of the disposition of this appeal, I find that this issue is moot.


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