98-053

       Petitioner appeals from the decision of an impartial hearing officer. She claims that she was not provided timely notice of her daughter’s committee on special education (CSE) review meeting, and that the CSE conducted the review despite being advised that she was unavailable. Petitioner also appeals from the hearing officer’s determination that the child’s June 17, 1998 individualized education program (IEP) complied with a prior decision of an impartial hearing officer rendered on March 20, 1998. She further appeals from the hearing officer’s order that the child be removed from home instruction and placed in the Westchester School for Special Children (Westchester School), in Yonkers, New York. The appeal must be dismissed.

        At the outset, I note that respondent failed to serve its answer to the petition in this appeal within the prescribed time frame (cf. 8 NYCRR 279.5). Respondent asks that its delay be excused. Its attorney asserts that the complexity of the issues precluded a more timely completion of the answer. She further asserts that the delay has been minimal, and that petitioner's attorney consented to an extension of time for respondent to answer. Under the circumstances, I will accept respondent's answer.

        Petitioner’s daughter was born on October 20, 1989. Immediately after birth, the child experienced seizures and convulsions. In 1992, when the child was two years, eleven months old, she was diagnosed with galactosemia, a metabolic disorder in which the body is unable to convert excess galactose into glucose. Sometime thereafter, the child’s pediatrician suggested that the child be evaluated because the pediatrician believed that the child was mildly retarded. The child was evaluated and it was recommended that she attend special education classes at the Small Wonder Preschool. After preschool, the child attended a MIS-IV program at P.S. 12 in Woodside, Queens, where she reportedly exhibited behavior problems, including hitting, spitting, and grabbing other children’s lunches. In January, 1997, respondent’s CSE recommended that the child be placed in a SIE-VI placement, which began on February 4, 1997. On February 10, 1997, the child reportedly lost her balance and fell down while being hugged by another student. She was hospitalized for three weeks with a reported diagnosis of viral encephalitis. Although the hospital’s discharge report indicated that the child could return to school, she did not return. On March 11, 1997, petitioner requested a CSE review seeking home instruction.

        On May 2, 1997 she requested an impartial hearing at which she sought an order requiring respondent to classify the child as other health impaired and traumatic brain injured, and to place her in a private school on a 12-month basis, with physical therapy, occupational therapy, speech/language therapy, counseling, health services and a transportation aide. Petitioner also claimed that respondent should pay for the cost of specially prepared food for the child at school. The impartial hearing began on May 16, 1997. After it began, the CSE recommended that the child be classified as other health impaired, and that she be placed in respondent's SIE-VI program. The parties reportedly agreed upon the child's classification, but not her placement.

        On September 23, 1997, while the impartial hearing was still pending, the CSE convened to develop an IEP for the child reflecting an agreement reached by the parties. The CSE’s recommendations included that the child receive small group instruction in a private school, with the related services of speech/language therapy and occupational therapy. It also recommended a health aide and a transportation paraprofessional for the child. The child was accepted by the Westchester School. That placement was reportedly acceptable to petitioner, if the school would prepare lunch and snacks to meet the child's dietary needs, or reimburse petitioner for those food costs. However, respondent adopted the position that it was not financially responsible for those food costs. The impartial hearing lasted twelve days. At the hearing, petitioner objected to her daughter’s placement at the Westchester School because the school did not provide meals. She also expressed concern about the length of time that her daughter would have to travel by bus to and from the school.

        The hearing concluded on February 2, 1998. The hearing officer rendered her decision on March 20, 1998. She ordered that the child be classified as other health impaired, that she attend the Westchester School, that parent counseling be provided as a related service, that the child receive speech/language therapy and occupational therapy, and that a special transportation paraprofessional and health professional be provided for the child. The hearing officer also ordered that a physical therapy evaluation of the child be conducted. She further ordered that the CSE conduct a review to consider the results of that evaluation to determine if physical therapy was necessary, and to modify the child's IEP to reflect the student to staff ratio at the Westchester School. Additionally, the hearing officer ordered the district either to provide the child with special meals at the Westchester School, or to reimburse the parent for the cost of the child’s meals. Neither the child’s mother nor the school district appealed from that decision.

        In May, 1997, respondent attempted to make arrangements for the child’s physical therapy evaluation as ordered in the March 20, 1998 decision. The physical therapist was unable to make contact with petitioner to arrange for the evaluation, despite several attempts. The physical therapist sent a letter to petitioner on June 15, 1998 advising her that a physical therapy assessment for her daughter had been scheduled for June 19, 1998.

        The hearing officer's March 20, 1997 decision also ordered the CSE to conduct a review. In a letter dated May 12, 1998, the CSE advised petitioner that a meeting had been scheduled for June 9, 1998. Petitioner responded by letter dated May 25, 1998 seeking a postponement until after July 6, 1998 because her family's medical appointments reportedly precluded her from attending a CSE meeting until that date. After a series of unsuccessful attempts to contact petitioner to reschedule the review meeting, the CSE scheduled the review meeting for June 17, 1998, and provided notice to petitioner on June 9, 1998, allowing some time for petitioner to try to rearrange her schedule.

        On June 16, 1998, petitioner requested an impartial hearing claiming that she received late notice of the CSE meeting scheduled for June 17, 1998. In another letter dated June 16, 1998, petitioner requested an impartial hearing claiming discrimination and harassment. In her letter, petitioner stated that she was seeking an order requiring respondent to schedule a meeting at a mutually convenient time and date so that she could have meaningful participation in the development of her daughter’s IEP as required by the Individuals With Disabilities Education Act (IDEA).

        The CSE conducted its June 17, 1998 meeting, which was attended by the district’s representative/social worker, the district’s educational evaluator, the district’s psychologist, and a parent member. Neither petitioner nor the child’s teacher were in attendance. The CSE modified the child’s IEP as required by the March 20, 1998 decision to specify the child’s placement at the Westchester School and to reflect the student to staff ratio used at the school. Additionally, the child’s IEP was modified to include the related services of speech/language therapy, occupational therapy and parent counseling. The CSE did not modify the child’s IEP to include physical therapy because the physical therapy evaluation had not been conducted.

        A new impartial hearing was held on July 8, 1998. At the time of the hearing, the child was receiving home instruction, occupational therapy and speech/language therapy. The hearing officer rendered his decision on August 4, 1998. He found that petitioner was unreasonable and uncooperative in making herself unavailable to participate in a CSE review for a period of more than six weeks. However, he found that pursuant to IDEA, she was entitled to meaningful participation in the CSE review process, and that the review team should have included the child’s teacher. Accordingly, the hearing officer ordered that the CSE reconvene. The hearing officer further found that it was in the child's best interests to be placed in a school setting. He noted that the child’s June 17, 1998 IEP substantially complied with the March 20, 1998 decision in the prior hearing, and he found that the remaining issues of physical therapy and parent counseling could be finalized once the child began attending the Westchester School. Noting that neither party had appealed from the decision in the prior hearing, the hearing officer further found that the Westchester School was the child’s "pendency placement" (20 USC 1415 [j]; Section 4404 [4] of the New York State Education Law). Finally, the hearing officer found that respondent should reimburse the parent for supplying the child’s food until it made other arrangements. The hearing officer ordered the CSE to obtain a physical therapy evaluation of the child, and to schedule a review to make appropriate recommendations for the child’s educational services within 21 days after his order. He further ordered that the child be immediately removed from home instruction and placed at the Westchester School.

        Petitioner appeals from the hearing officer’s decision on a number of grounds. She claims that she did not receive timely notice of the June 17, 1998 CSE review and was therefore deprived of the opportunity to participate in the development of her daughter’s IEP despite having advised the CSE of her unavailability. She also claims that the IEP was inadequate in that it did not comply with the March 20, 1998 decision, was not tailored to meet the child’s needs, and did not include the child’s nutritional requirements. In addition, petitioner claims that the hearing officer erred in his determination that home instruction was not the child’s "pendency placement."

        With respect to petitioner's claims of such untimely notice of the June 17, 1998 CSE meeting, and the CSE’s failure to schedule a meeting at a mutually agreeable time, I find that those matters are moot because of the hearing officer's determination that the CSE must reconvene to afford her an opportunity to meaningfully participate in the revision of her child's IEP. In addition, the hearing officer found that the June 17, 1998 CSE was not properly constituted, therefore the actions taken by the CSE at that meeting were a nullity (Application of a Child with a Disability, Appeal No. 96-87). Consequently, petitioner's claims with regard to the revised IEP which was developed at the June 17, 1998 CSE meeting are also moot. I will note for the benefit of the parties that respondent is obligated to schedule its CSE meetings at times which are mutually agreed upon (34 CFR 300.345 [a][2]). However, parents may not, by being "unavailable", preclude a CSE from scheduling its meetings expeditiously to ensure that children get the free appropriate public education to which they are entitled. Both parties should be working together to ensure the best interests of the child. Although, I do not reach petitioner’s claims challenging the June 17, 1998 IEP, I must note that the issue of meeting the child's nutritional requirements was addressed in the first hearing officer's decision, and in its answer, respondent acknowledged that petitioner would be reimbursed for any expense she incurred in providing meals for her daughter at the Westchester School.

        Petitioner also claims that the hearing officer erred in determining that the Westchester School was the child’s "pendency placement." She argues that her child’s "pendency placement" should be home instruction because her daughter was receiving home instruction at the time the impartial hearing which is the subject of this appeal was requested. Pursuant to Federal and State law, a child with a disability must be maintained in his or her current educational placement until any due process proceeding has been completed, unless the child’s parents and the school district agree upon another placement (20 USC 1415 [j]; Section 4404 [4] of the Education Law). The first due process proceeding concluded on March 20, 1998, when the hearing officer rendered her decision finding that the Westchester School was the appropriate placement for the child. The child’s educational placement became the Westchester School because a decision made in an impartial due process hearing under the IDEA and Article 89 of the Education Law is final unless a party to the hearing appeals the decision (34 CFR 300.509; 8 NYCRR 200.5 [c][11]). The fact that respondent was providing home instruction to the child as an interim measure in June, 1998 when petitioner requested an impartial hearing does not negate the March 20, 1998 decision, nor does it constitute an agreement between the parties of another placement. Respondent continued to provide home instruction while it was attempting to implement the March 20, 1998 decision ordering that the child be placed at the Westchester School. The hearing officer in this proceeding did not alter the prior hearing officer's determination.

        Petitioner now claims that the Westchester School is not an appropriate placement for her daughter. As petitioner failed to appeal the March 20, 1998 determination that the child should be placed at the Westchester School, I find that she is precluded from raising it in this proceeding. Petitioner’s proper course of action is to request a CSE meeting to review her daughter’s placement in the Westchester School after the child begins to attend that school.

        I have considered petitioner’s other claims, which I find to be without merit.

THE APPEAL IS DISMISSED.