98-029

         Petitioner appeals from an interim decision by an impartial hearing officer upholding parts of an individualized education program (IEP) which respondent's committee on special education (CSE) had prepared for his daughter. The appeal must be dismissed as premature.

        This proceeding began in the fall of 1996, when petitioner challenged the CSE's proposed re-evaluation of the child and the child's proposed placement in one of respondent's special education classes for the 1996-97 school year. In February, 1997, the hearing officer issued a preliminary decision with regard to respondent's right to re-evaluate the child, petitioner's right to receive copies of relevant test instruments, answers and interpretive information, respondent's showing that the proposed evaluation instruments were not racially discriminatory, and respondent's obligation to conduct a self-evaluation of its special education program. Petitioner's appeal to the Commissioner of Education from one portion of that decision was dismissed by the Commissioner on February 13, 1998 (Application of a Student with a Disability, 37 Ed. Dept. Rep. 313). The hearing resumed on April 16, 1997 and it continued on December 5, 1997. At that time, the parties agreed to consolidate additional issues which petitioner had raised, including the adequacy of the child's IEP for the 1997-98 school year. They also agreed to address the adequacy of the 1997-98 IEP first. Testimony was taken on December 5, 1997 and January 20, 1998.

        In the spring of 1997, the mathematics, reading, language arts, and speech/language skills of petitioner's daughter were assessed by members of respondent's staff, who reported their findings to the CSE. On June 19, 1997, the CSE prepared the child's IEP for the 1997-98 school year. The record reveals that the child also received a reading evaluation. The CSE recommended that the child remain classified as mentally retarded, and that she receive primary special education instruction for reading, language arts and mathematics in a 12:1+1 special education class in respondent's middle school. The CSE further recommended that the child have an "inclusion" placement for science and social studies, and that she be mainstreamed for special subjects, i.e., music, art, physical education. Inclusion means the placement of a child with a disability with age-appropriate peers in a regular education class, in which the child with a disability receives appropriate special education services, and is not necessarily expected to achieve the same results as the child's non-disabled peers. The CSE further recommended that she receive direct speech/language therapy three times per week, and indirect or consultant speech/language therapy twice per week.

        In his interim decision which was dated April 11, 1998, the hearing officer rejected petitioner's contention that his daughter's placement in a special education class for reading, language arts and mathematics would be inconsistent with the requirement that she be educated in the least restrictive environment (see 34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]). He found that the child required individualized teaching, continuous prompting and reinforcement, and specialized teaching techniques in those three subjects. However, the hearing officer agreed with petitioner's contention that the child's IEP was defective because it did not include annual goals and short-term instructional objectives for science and social studies (see Application of a Child with a Disability, Appeal No. 93-38). The hearing officer dismissed certain other objections by petitioner to his child's IEP, but he found that the record was inadequate to determine petitioner's challenge to the composition of the CSE which had prepared the IEP. He suggested that petitioner raise the issue at the next day of the hearing. The hearing officer further found that respondent had failed to demonstrate that petitioner's child would have been appropriately grouped for instructional purposes with children having similar needs in her inclusion classes for science and social studies. He directed the CSE to revise the child's IEP to indicate her present levels of performance and to include annual goals and short-term instructional objectives for science and socials studies. He also directed respondent to "develop adequate evidence on the similarity of learning characteristics between [petitioner's child] and the other Special Education students with whom she was grouped in Science and Social Studies". I note that in separate communications to the hearing officer, both parties indicated that the hearing officer probably intended to apply the similarity of needs standard to the child's special education class instruction in reading, language arts and mathematics, rather than her inclusion instruction in science and social studies (Joint Exhibits 22 and 23). The hearing officer directed both parties to be prepared to address the question of other remedies to be imposed, if any, for the shortcomings which he had found in the IEP.

        Respondent contends that petitioner cannot appeal to the State Review Officer from an interim decision by an impartial hearing officer. It relies upon a recent amendment to the Regulation of the Commissioner of Education governing appeals to the State Review Officer. 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".

        Respondent asserts that the hearing officer's decision which is the subject of this appeal is clearly denominated as an interim decision, and that the hearing officer specifically indicated that he had not fully determined the matters which were before him. Respondent further asserts that when the hearing resumed on May 22, 1998, petitioner adduced additional evidence regarding the appropriateness of the child's IEP.

        Petitioner acknowledges that the Education Law authorizes the Commissioner of Education to promulgate regulations governing the practice and procedure in appeals to the State Review Officer (see Section 4404 [2] of the Education Law), but he contends that the Commissioner is not empowered to "regulate the jurisdiction" of the State Review Officer.

        I must note that Section 279.1 (c) of the Regulations of the Commissioner of Education provides that:

"state review officers shall not have jurisdiction to review the actions of any officer or employee of the State Education Department".

        Although that limitation could preclude my review of any regulation promulgated by the Commissioner of Education, I must note that appeals to the State Review Officer are also authorized by the Individuals with Disabilities Education Act (20 USC 1400 et seq.). I have considered petitioner's contention that the limitation upon interim appeals is inconsistent with the Federal statute, but I find that his contention is without merit. The regulation in question does not preclude my review of the substance of any hearing officer's decision, but it dictates when that review may occur. The timing of an appeal is clearly a procedural issue. I find that the Commissioner's regulation is not in conflict with either federal statute or regulation. 8 NYCRR 279.8 (c) precludes piecemeal appeals which only delay the final resolution of the disputes between the parties. In this instance, the hearing officer had not as yet determined what, if any, relief petitioner should receive for the deficiencies in his child's IEP. I note that by letter dated May 6, 1998, the hearing officer advised the parties that while he had addressed certain issues about the child's IEP, he had not determined whether respondent had offered to provide a free appropriate education to the child for the 1997-98 school year (Joint Exhibit 34). Even if the hearing officer had rendered a decision with respect to the provision of a free appropriate public education to the child, that determination would be only one of the three criteria for ascertaining whether petitioner is entitled to the reimbursement which he seeks (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]). An appeal at this juncture is clearly premature. Petitioner will have the opportunity to challenge the hearing officer's findings with regard to the appropriateness of a special class placement for instruction in reading, language arts and mathematics, if he appeals from the hearing officer's final decision in this proceeding.

THE APPEAL IS DISMISSED.