99-037

         Petitioner, the Board of Education of the Cornwall Central School District, appeals from an impartial hearing officer's order directing petitioner's committee on special education (CSE) to hold a meeting at a site which the lay representative of the child's parent could lawfully attend. The appeal must be dismissed.

        I note at the outset that petitioner has annexed four exhibits to its petition, and that respondent objects to my consideration of three of those exhibits. The exhibits were not introduced as evidence at the hearing in this proceeding. Respondent contends that the inclusion of the exhibits in the record of this appeal would deprive him of his due process right "to confront the evidence", and he argues that the submission of the exhibits is an attempt by petitioner to prejudice the State Review Officer. I do not agree with respondent. Documentary evidence not presented at a hearing may be considered in an appeal from the hearing officer's decision, if such evidence was unavailable at the time of the hearing, or if the record would be incomplete without the evidence (Application of a Child with a Disability, Appeal No. 95-41). The exhibits to which respondent objects are copies of certain documents in a proceeding in the Town of Cornwall Justice Court involving respondent's lay advocate. At the hearing, respondent alluded to a court order preventing his lay advocate from being on school grounds (Transcript, page 16). Since the advocate's alleged inability to participate in a CSE meeting because of the court order is at the heart of the dispute in this proceeding, I will accept the exhibits so the record will be complete.

        This proceeding was commenced by respondent, who is the father of a seven year old boy who resides in the Cornwall Central School District but is attending a local parochial school. On March 18, 1998, the CSE determined that respondent's son was not eligible for classification as a child with a disability pursuant to the Individuals with Disabilities Education Act (see 20 USC §1400 et seq.) and Article 89 of the New York State Education Law. Thereafter, respondent obtained independent speech/language and psycho-educational evaluations of his son in April and July, 1998, respectively. Petitioner's CSE was scheduled to meet in September, 1998 to review the results of the boy's independent evaluations. However, the CSE's meeting was postponed because staff of the boy's private school were unavailable.

        On October 6, 1998, the CSE met, and reportedly reviewed the independent evaluation results. The meeting was held on school grounds, notwithstanding respondent's request that the meeting not be held on school grounds. Respondent reportedly sought to have the meeting held elsewhere because his lay advocate had been barred from the grounds of the Cornwall Central School District by a protective order by the Cornwall Justice Court (Exhibits C and D to the petition). The lay advocate had been barred from school property after he was apparently found guilty of the crime of Harassment in the Second Degree while acting as an advocate for another family.

        The Board of Education had denied respondent's request for a change in the location of the CSE meeting, but it offered him the opportunity to participate by telephone in the October 6, 1998 meeting. Respondent declined to participate by telephone or to attend the CSE meeting, which was held without him. The CSE determined that respondent's son was still ineligible for classification as a child with a disability, and so notified respondent.

        On or about October 8, 1998, respondent filed a complaint with the New York State Education Department regarding petitioner's failure to honor his request for a different location for the CSE meeting (see 34 CFR 300.660). Respondent's complaint was dismissed on December 30, 1998 by a Regional Associate of the State Education Department's Office of Vocational and Educational Services for Individuals with Disabilities, who indicated that the CSE could not be compelled to meet at a non-school district site (Exhibit 3).

        On January 11, 1999, respondent requested that an impartial hearing be held because he was allegedly not permitted to have is son's teacher and principal, as well as invited experts, attend the October 6, 1999 CSE meeting, or to have the meeting at a mutually convenient location, which he indicated should be at his son's school (Exhibit 2).

        An impartial hearing officer was appointed by petitioner on February 1, 1999. A hearing was held on March 16, 1999, at which time the Board of Education moved to dismiss the complaint on the grounds that the issues raised by the child's father had been resolved by the dismissal of his complaint to the State Education Department, and that they were not issues which the hearing officer had jurisdiction to determine. Petitioner's attorney indicated that the school district was willing to reconvene the CSE, but it would not do so at an off-campus site. When questioned by the hearing officer about the nature of his complaint, respondent indicated that he disagreed with the CSE's determination that his son was ineligible to receive services under the IDEA, but he asserted " ... that's not the nature of the complaint and why we are sitting here today. That's another matter." (Transcript, page 22). Although the hearing officer indicated that he would maintain jurisdiction if the matter was not resolved and if respondent raised the issue of the CSE's decision, petitioner's attorney asserted that the CSE's determination that the child was ineligible would have to be the subject of a new hearing request. The hearing was adjourned to permit the parties to brief the legal issues for the hearing officer.

        In his decision dated April 30, 1999, the hearing officer identified three issues in the hearing. The first issue was whether the hearing officer had jurisdiction to hear the parent's complaint about not holding the CSE meeting at another site so that his representative could attend the meeting. Second, if he did have jurisdiction, could the Cornwall Central School District be compelled to hold a CSE meeting off the school district's property. The third issue which he identified was respondent's disagreement with the CSE's determination about his son, but the hearing officer acknowledged in his decision that he had not yet heard that issue. The hearing officer, albeit by implication, found that he had jurisdiction to rule upon respondent's procedural objections to the CSE's determination. While finding that petitioner was within its rights to proceed with the October 6, 1998 CSE meeting without respondent, the hearing officer further found that respondent was not afforded the opportunity for meaningful participation in the CSE meeting because his representative could not attend the meeting. The hearing officer nullified the CSE's recommendation that the boy not be classified, and remanded the matter to the CSE for reconsideration of the child's eligibility, with the direction that it select a "neutral" site which the parent's lay representative could attend for the CSE meeting.

        The Board of Education argues that the hearing officer lacked jurisdiction to consider the issues of the location of and participants in the October 6, 1998 CSE meeting because respondent had resorted to the State complaint procedure and had received an adverse determination. It asserts that respondent's remedy was to appeal to the U.S. Department of Education from the State Education Department's dismissal of his complaint (see 34 CFR 300.660 [d]). I note that the new Federal regulations implementing the 1997 amendments to the IDEA do not provide for an appeal to the U.S. Department of Education. However, the new regulations did not take effect until May 11, 1999.

        The U.S. Department of Education has informally opined that a party who is aggrieved by a State educational agency decision in the State complaint proceeding may pursue due process, i.e., have an impartial hearing and subsequent review, provided that the issues involved concern the identification, evaluation, or placement of a child with a disability, or the provision of a free appropriate public education to that child (23 IDELR 351). It further opined that a due process decision would prevail over a conflicting result of a State educational agency's decision in the complaint process which addressed the same matter, but that the results of the State educational agency's complaint investigation may be introduced as evidence during an impartial hearing. In this instance, respondent's son has not been classified as a child with a disability, but the underlying dispute between the parties involves the procedure which petitioner's CSE employed in determining that the boy should not be identified as a child with a disability. Although respondent's insistence upon dealing separately with the procedural and substantive aspects of the CSE's recommendation will unfortunately delay the final resolution of the matter, I find that the hearing officer had jurisdiction to determine respondent's challenge to the CSE's scheduling of the October 6, 1998 meeting on school district property.

        Petitioner contends that the hearing officer should have upheld its insistence upon holding the CSE on school property. It argues that it violated neither Federal nor State law by holding the CSE meeting on its property. Petitioner relies upon the provisions of 34 CFR 300.345 (a) which require it to take steps to ensure that one or both of the child's parents are present at the CSE meeting, or are afforded the opportunity to participate in the meeting, including -

"(1) Notifying parents of the meeting early enough to ensure that they would have an opportunity to attend;

(2 ) Scheduling the meeting at a mutually agreed on time and place."

        The Board of Education asserts that respondent never indicated to it that it was not convenient for himself or his wife to attend the CSE meeting on school district property. It also asserts, and respondent admits, that it offered respondent the opportunity to participate by telephone in the CSE, in accordance with the provisions of 34 CFR 300.345 (c).

        As noted above, the heart of the matter is the fact that respondent wished to have his lay advocate attend the CSE meeting, and his lay advocate could not set foot on school district property because of the court order. Petitioner does not contend that the lay advocate could have participated in person at the October 6, 1998 CSE meeting. The relevant Federal regulation is 34 CFR 300.344 (a)(5) which indicates that a school district should ensure that a CSE meeting include certain persons, including "Other individuals at the discretion of the parent or agency". Section 200.5 (a)(1)(iii) of the Regulations of the New York State Commissioner of Education provides that the notice which is to be sent to a parent prior to a CSE meeting shall:

"indicate that the parent shall have the opportunity to participate in meetings of the committee on special education for the purpose of developing recommendations in accordance with the provisions of section 200.4 (c) of this Part, and that the parent may request an interpreter, translator or reader for the meeting and be accompanied at such meetings by such individuals as the parent may desire" [Note: Section 200.4 (c) includes a recommendation that a child not be classified].

        While I would agree with petitioner that it need not schedule its CSE meetings at various locations which are not on school premises simply because parents may prefer those venues, the issue here involves respondent's right to be accompanied to the CSE meeting by another individual to assist him. That right is not without limit, but I find that a balancing of the interests here requires that petitioner make some effort to accommodate respondent's desire to be assisted by a lay advocate at the CSE meeting, and that petitioner failed to do so in this instance. I recognize that petitioner may have some legitimate concerns for the safety of its personnel, but I am not persuaded that those concerns cannot be addressed if the CSE meeting is held at a location off school district property.

THE APPEAL IS DISMISSED.