98-046

       Petitioner appeals from an order by an impartial hearing officer which dismissed this proceeding without prejudice, after neither petitioner nor respondent appeared before her on July 17, 1998, the date for the hearing which the hearing officer had set in a prior interim order. Petitioner requests that the hearing officer's decision, as well as portions of her interim order, be annulled. The appeal must be dismissed as premature.

        At the outset, I note that respondent has not answered the petition, which was served upon it on August 14, 1998. In accordance with the provision of 8 NYCRR 279.3, the statements in the petition are deemed to be true statements.

        Petitioner previously appealed from an impartial hearing officer's decision rendered on July 29, 1997, which held that the board of education had failed to meet its burden of proving the appropriateness of the modified instructional services-I (MIS-I) educational program which its committee on special education (CSE) had recommended for petitioner's son, and which directed respondent to issue a "P-1" letter allowing petitioner to place the boy in an approved private school at respondent's expense for the 1997-98 school year (see Jose P. et al. v. Ambach et al. [79 C 270, U.S. D.C. E.D. N.Y., 1982]). In that appeal, petitioner raised certain issues about the way in which the hearing was conducted, the scope of the hearing, and the timeliness of the hearing officer's decision. On October 15, 1997, I dismissed petitioner's appeal on the grounds that the hearing officer's delay in rendering his decision did not afford a basis for annulling his decision, and that certain issues which petitioner wished to raise were beyond the scope of due process proceedings held pursuant to the Individuals with Disabilities Education Act (IDEA) and Article 89 of the Education Law (Application of a Child with a Disability, Appeal No. 97-62).

        On or about April 30, 1998, the child's uncle acting as petitioner's "attorney in fact" reportedly requested that the previous impartial hearing be re-opened. Petitioner asserts that a hearing was requested because the CSE had recommended that her son's placement be changed from a MIS-I to a specialized instructional environment-IV (SIE-IV) class. In a letter dated May 14, 1998, the boy's uncle requested that subpoenas be issued to 37 named individuals and one unnamed individual, and that the boy's entire school record be disclosed to him (Hearing Officer Exhibit 1). The boy's uncle and a representative of the CSE of Community School District No. 3 appeared before an impartial hearing officer on May 27, 1998 to discuss the disclosure and subpoena requests which were made in Hearing Officer's Exhibit 1. The hearing officer, who was not the hearing officer for the previous hearing, questioned whether that hearing could be re-opened, but she attempted to ascertain what records had not been disclosed to petitioner, and what were the issues to be decided at the requested hearing, so that she could determine the probable relevance of the prospective witnesses' testimony (see Application of a Child with a Disability, Appeal No. 96-26). The hearing officer articulated her understanding of the parties' respective positions about the issues to be resolved, and listened to respondent's objections to some of the requested subpoenas, as well as petitioner's rebuttal to respondent's objections. At the close of the hearing, the hearing officer indicated that she would render a written decision with respect to the scope of the hearing and petitioner's subpoena requests. The parties did not agree upon a specific date to begin the hearing, but they did agree that the hearing officer would retain jurisdiction (Transcript, pages 38-39).

        In her interim order which was dated July 1, 1998, the hearing officer ordered respondent to produce all documents which had been used to "evaluate" the boy for each IEP prepared by the CSE's of Community School District 3 and 9, including all of his academic records. However, she ruled that the appropriateness of the CSE's previous recommendation of a MIS-I placement for the boy had been adjudicated in the prior hearing, as had petitioner's other claims with respect to access to her son's records. Therefore, the hearing officer held that subpoenas would be issued only to witnesses who had participated in the boy's most recent evaluation and the preparation of his most recent IEP. The hearing officer expressed her concern about the fact that the boy had not received any instructional services for one school year, despite the fact that he was entitled to receive home instruction as a "pendency placement" during the pendency of the prior proceeding. She directed the CSE of Community School District No. 3 to immediately reconvene to develop an interim service plan for the child, which was to include compensatory services to make up for the time during which he had not received services. She noted that the child could have received appropriate services at an approved private school, if petitioner had availed herself of the opportunity to use the P-1 letter which she had received, and found that both parties were responsible for the denial of an appropriate education to the child during the 1997-98 school year. The hearing officer ordered that subpoenas be issued to ten individuals to testify at a hearing which she scheduled to begin on July 17, 1998.

        On July 17, 1998, neither party appeared before the hearing officer. The hearing officer indicated on the record that she had not received any request for an adjournment and had not been apprised that either party would be unable to appear on that date (Transcript, page 46). She indicated that she would dismiss the case without prejudice, and that petitioner's representative could reopen the proceeding, or start a new proceeding. She also indicated that she would not retain jurisdiction over the matter. The hearing officer issued a "Final Statement" dated August 14, 1998, in which she dismissed the case without prejudice, but provided that respondent must in any event comply with the directives of her interim order.

        Petitioner contends that the hearing officer violated her rights by failing to issue all of the subpoenas which she had requested, and by limiting the issues on the table, i.e., by defining the scope of the hearing. She further contends that the hearing officer failed to render her interim decision within 45 days after she had requested a hearing (cf. 8 NYCRR 200.5 [c][11]). Although she asserts that the hearing officer had agreed to consult the parties about an appropriate date to reconvene the hearing, petitioner has not specifically challenged the hearing officer's statement at the July 17, 1998 hearing that neither party had requested an adjournment, or indicated an inability to attend the hearing on that date. Petitioner requests that the hearing officer's interim order be annulled, except her order requiring respondent to produce the child's records and provide instructional services to the child pursuant to an interim service plan. She also requests that I annul the CSE's evaluation of the child, and order respondent to appoint someone who does not live in New York City to conduct a new hearing to ascertain why respondent failed to provide the educational services which it had reportedly agreed to provide in 1995.

        The initial question to be determined is whether this appeal is premature. 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."

        Although the hearing officer subsequently dismissed this proceeding without prejudice to petitioner's right to reopen the matter, her determinations with respect to the scope of the hearing and the witnesses to testify at a hearing which has not yet been held are nevertheless preliminary decisions which are squarely within the terms of 8 NYCRR 279.8 (c), and cannot be reviewed at this time. Those findings, as well as the hearing officer's finding that both parties bear responsibility for the lack of educational services to the child during the 1997-98 school year, can be reviewed once there has been a final determination by a hearing officer in this proceeding.

        There is one exception to the ban on review of preliminary or interim orders. If an impartial hearing officer determines what a child's "then current" placement shall be during the pendency of a due process proceeding, that determination may be appealed to the State Review Officer. In her petition, petitioner asserts that her son was scheduled to receive home instruction pending the resolution of the prior proceeding, but that respondent has failed to provide such instruction to the child. In my prior decision involving the child, I noted that the petitioner's lay advocate (the boy's uncle) and a CSE representative had agreed that respondent would provide home instruction to the boy as an interim measure, and that the hearing officer in that proceeding had concurred with that agreement on May 12, 1997. At the hearing which was held in the present proceeding on May 27, 1998, the CSE representative conceded that the child should have been receiving home instruction (Transcript, pages 18 and 19). However, the CSE representative asserted that petitioner had refused to accept such instruction during the summer of 1997. In any event, there is nothing in the limited record which is before me to establish that the parties' agreement in May, 1997 to have the boy receive home instruction has been superseded by a subsequent agreement, or by an administrative determination about an appropriate placement for the child.

        The final question to be determined is whether the hearing officer's directive to the CSE to develop an interim services plan for the child, to which petitioner does not object, has altered the child's pendency placement. I find that there is no basis for concluding that it has, especially in light of the hearing officer's finding that the boy should have been receiving home instruction as his pendency placement (Interim Order, page 4). Therefore, the appeal from the interim order must be dismissed.

        With regard to the hearing officer's dismissal without prejudice, I find that her decision is not a final determination. Petitioner's obvious remedy is to request a new hearing. I have considered petitioner's other arguments which I find to be without merit. She has not offered any evidence to support her request that respondent be ordered to appoint a new hearing officer in a manner other than that prescribed by the Education Law, which requires that hearing officers be selected from a rotational list.

        I share the hearing officer's concern that this child did not receive any educational services during the 1997-98 school year. I do not apportion blame for that fact, but I urge both parties to work for the child's benefit by preparing an IEP which will address his current educational needs. In order to do this, the CSE must ascertain those needs by evaluating the child. If petitioner is dissatisfied with the results of the CSE's evaluation, she is entitled to obtain an independent evaluation at respondent's expense, as the hearing officer in the May, 1997 hearing had indicated. The IEP must not only address the child's current educational needs, it must also provide compensatory services as the hearing officer in this proceeding directed in her July 1, 1998 interim order.

THE APPEAL IS DISMISSED.