98-008

 Petitioner appeals from the decision of an impartial hearing officer granting respondent's motion to dismiss a portion of petitioner's claim against respondent on the ground that petitioner raised the issue too late for there to be any meaningful relief even if her claim was proven. When petitioner brought this appeal, the hearing officer had not rendered a final decision in this proceeding. The appeal must be dismissed as premature.

        Petitioner's son is fourteen years old. His education by respondent was subject of a prior proceeding (Application of a Child with a Disability, Appeal No. 95-29). The present proceeding was begun on June 18, 1997, when petitioner requested that a hearing be held pursuant to Section 504 of the Rehabilitation Act of 1973 regarding alleged discrimination against her son because of his disability. As was noted in Application of a Child with a Disability, supra, compliance with the procedural safeguards of the Individuals with Disabilities Education Act (IDEA) is a way of complying with Section 504. Petitioner thereafter filed nine additional hearing requests between July 14 and December 15, 1997. All ten hearing requests were consolidated into a single proceeding, with petitioner's consent.

        Petitioner's second hearing request is the subject of this appeal. In her request, petitioner alleged that respondent's committee on special education (CSE) had violated her son's right to receive a free appropriate public education when it allegedly generated an individualized education program (IEP) for the 1996-97 school year, without having tested the boy to determine his then current levels of academic performance. Petitioner further alleged that as a result of this omission, her son had regressed academically.

       On October 23, 1997, which was the fourth day of the hearing, respondent asked the hearing officer to rule that petitioner's complaint with respect to the 1996-97 school year was untimely and should be dismissed. Petitioner opposed respondent's request on the grounds that she had raised the issue of additional testing for her son during the 1996-97 school year, but respondent had been dilatory in responding to her request for testing. The hearing officer indicated that he would consider respondent's request to be a motion to dismiss, which he would take under advisement.

       On January 12, 1998, the hearing officer rendered his decision on the motion to dismiss. He noted that petitioner had alleged that she had requested additional testing of her son in September, 1996, and had renewed her request in December, 1996. According to petitioner, respondent's CSE agreed to have the boy tested immediately, and her son was tested in April, 1997. However, the CSE did not review the test results until June, 1997. The hearing officer held that even if petitioner's allegations were true, he would have no way of redressing the allegedly inappropriate delay by the CSE because the 1996-97 school year had concluded, and an award of compensatory education would be inappropriate. Therefore, he granted respondent's motion to dismiss the claim.

        Petitioner contends that the hearing officer's decision is a final determination which I must review, notwithstanding the fact that it was but one of a number of interim determinations which the hearing officer made during the course of the hearing. Respondent argues that the appeal is premature, and that petitioner can obtain a review of the hearing officer's determination of its motion to dismiss when the proceedings before the hearing officer have been concluded.

        On January 1, 1998, Section 279.8 of the Regulations of the Commissioner of Education was amended by the addition of a new subdivision (c) which reads as follows:

"Interim determinations. Appeals from an impartial hearing officer's ruling, decision or refusal to decide an issue prior to or during a hearing shall not be permitted, with the exception of a pendency determination made pursuant to subdivision 4 of section 4404 of the Education Law. However, in an appeal to the state review officer from a final determination of an impartial hearing officer, a party may seek review of any interim ruling, decision or refusal to decide an issue."

        Petitioner clearly has the right to obtain a review of the hearing officer's determination with regard to the issue which she has raised regarding her son's testing in the 1996-97 school year. However, it does not follow that this issue should be reviewed separately from the related issues which she raised at the hearing in this proceeding. The hearing officer rendered his final decision in this proceeding on June 3, 1998. The Board of Education has appealed from his decision. In her answer to the Board's petition in that appeal (98-36), the child's mother has requested that certain portions of the petition not be considered because she was precluded by the hearing officer's January 12, 1998 decision from obtaining evidence about those matters. Under the circumstances, fairness dictates that I consider the petition in Appeal No. 98-8 to be a cross-appeal from the hearing officer's final decision in Appeal No. 98-36. Accordingly, I will dismiss the instant appeal as premature, and will consider petitioner's arguments when I review the hearing officer's final decision in Appeal No. 98-36.

THE APPEAL IS DISMISSED.