97-009

         Petitioner appeals from an impartial hearing officer's directive to respondent's committee on special education (CSE) to reconvene with all of its required members to prepare a new individualized education program (IEP) for petitioner's son, with the proviso that the hearing officer would thereafter review the boy's new IEP to determine the child's placement. The hearing officer did not indicate whether he would conduct an additional hearing with regard to the boy's new IEP. Respondent has provided me with a copy of the hearing officer's subsequent decision upholding the IEP which the CSE prepared in response to the hearing officer's directive. In that decision, the hearing officer indicated that he did not hold an additional hearing because the CSE had again recommended a special education class placement for the boy, and that "any further testimony would be redundant." The appeal must be sustained.

        Respondent contends that this appeal is moot because it concerns an interim decision by the hearing officer which has been superseded by the hearing officer's subsequent and final decision. It asserts that the hearing officer's final determination was rendered before this appeal was commenced, and that petitioner has not challenged the hearing officer's final determination. Petitioner argues that her appeal should not be dismissed as moot because the hearing officer's initial decision, which was dated December 13, 1996, and amended on December 18, 1996, was a final determination, rather than an interim order. She asserts that the hearing officer's December decision did not address each of the issues which she had raised. She also asserts that she served a notice of intention to seek review of the hearing officer's determination upon respondent on January 6, 1997, which was one week before the hearing officer rendered his second decision on January 14, 1997. That decision was amended on January 16, 1997, which was approximately two weeks before the petition was served upon respondent on January 29, 1997.

        The central issue which divides petitioner and respondent's CSE is whether petitioner's son, who was not previously identified as a child with a disability prior to CSE's preparation of an IEP for the 1996-97 school year, is whether the boy should be placed in a self-contained class, as the CSE has recommended, or should he continue to be instructed in the mainstream with supplemental special education services, as petitioner has requested. Although the 1996-97 school year is over, and petitioner has not expressly appealed from the hearing officer's decision in January, 1997 upholding the CSE's recommendation, I decline to find that the appeal is moot because there is a continuing dispute about the nature of the special education services which the child should receive (Application of a Child with a Disability, Appeal No. 94-13; Application of a Child with a Disability, Appeal No. 95-19).

        Petitioner has raised a significant issue with respect to the procedure which the hearing officer employed in this proceeding. However inartfully phrased the hearing officer's decision in December, 1996 may have been, I am inclined to agree with respondent that it should be viewed as an interim decision. The hearing officer annulled the child's initial IEP because it was defective as a matter of law (Application of a Child with a Handicapping Condition, Appeal No. 92-31; Application of the Board of Education of the North Rose-Wolcott Central School District, Appeal No. 97-1). He properly remanded the matter to the CSE to prepare a new IEP at a meeting with all of its required members (see Section 4402 [1][b][1] of the Education Law). Although the IEP to which petitioner originally objected was annulled by the hearing officer, it does not follow that the hearing officer was divested of jurisdiction when he remanded the matter to the CSE. However, petitioner was clearly entitled a matter of Federal and State law to an impartial hearing to review the new IEP which the hearing officer directed the CSE to prepare (34 CFR 300.506 [a]; 8 NYCRR 200.5 [c]).

        The hearing officer's decision in December, 1996 did not expressly afford the parties an opportunity to present evidence and to confront witness with respect to the new IEP (cf. 34 CFR 300.508 [a][2]; 8 NYCRR 200.5 [c][9]). When he received the boy's new IEP, which is not in the record which is before me, the hearing officer apparently found that the IEP was so similar to the IEP which respondent's CSE had prepared in June, 1996, that he did not require additional evidence to determine if the new IEP was appropriate.

        The record reveals that a hearing was conducted on five days between September 16, 1996 and December 5, 1996. The child's teachers for the 1995-96 and 1996-97 school years testified about the boy's performance in their respective classrooms. The assistant principal and principal of the boy's elementary school also testified on behalf of respondent. At petitioner's request, respondent's Director of Special Education testified, as did petitioner. During the course of the hearing, the hearing officer expressed concern about the length of the testimony, and the corresponding delay in providing the child with appropriate special education services.

        Although I understand the hearing officer's concern about promptly providing services to the child, I am nevertheless compelled to sustain petitioner's appeal because she has the legal right to challenge her son's new IEP. The hearing officer's decision on January 14, 1997 deprived petitioner of that right. Therefore, I must annul his decision. I recognize that relitigating the boy's IEP for the 1996-97 school year by holding a hearing would not serve any useful purpose, and I urge the parties to complete the boy's IEP for the 1997-98 school year.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the hearing officer's decision dated January 14, 1997, and amended January 16, 1997, is hereby annulled.