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Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Highland Central School District


Family Advocates, Inc., attorney for petitioner, RosaLee Charpentier, Esq., of counsel

Shaw and Perelson, LLP, attorneys for respondent, Lisa S. Rusk, Esq., of counsel


        Petitioner appeals from an impartial hearing officer's decision which granted respondent's motion to dismiss the proceeding on the ground that the 1997 amendments to the Individuals with Disabilities Education Act (IDEA) bar petitioner from obtaining an award of tuition reimbursement at a private school for the 1998-99 school year because her son had never received special education and related services under the authority of a public agency as required by 20 USC 1412 (a)(10)(C)(ii). The appeal must be dismissed as premature.

        This proceeding was begun on or about August 10, 1998, when petitioner requested that an impartial hearing held because respondent's committee on special education (CSE) had reportedly failed to prepare an individualized education program (IEP) for the 1998-99 school year (Exhibit D-3). An IEP was prepared for the boy by the CSE on September 4, 1998 (Exhibit D-4), at a meeting which petitioner was reportedly unable to attend.

        Respondent appointed an impartial hearing officer on or about August 18, 1998. The hearing officer conducted a pre-hearing conference with the parties' attorneys on October 27, 1998. Although petitioner's initial complaint had been about the CSE's failure to prepare an IEP for the 1998-99 school year, the parties agreed that the scope of the proceeding would be broadened to include petitioner's procedural and substantive objections to the IEP which the CSE prepared on September 4, 1998. They further agreed that the hearing would be adjourned to permit the CSE to meet again on October 30, 1998. Petitioner's attorney indicated to the hearing officer that, subject to the outcome of the CSE meeting, she would be seeking an award of tuition reimbursement to petitioner, who had unilaterally enrolled her son in the Kildonan School for the 1998-99 school year.

        Respondent's attorney requested that the hearing officer rule that petitioner could not place any information about the Kildonan school in the record because the IDEA as amended in 1997 purportedly precluded a parent from obtaining an award of tuition reimbursement if the parent's child had not previously received special education and related services from his or her local school district. The hearing officer was informed that the same issue had been raised in a prior proceeding regarding the boy's placement during the 1997-98 school year, and that the matter was then on appeal to the State Review Officer. I note that on March 24, 1999, that appeal was decided (Application of a Child with a Disability, Appeal No. 98-25).

        The hearing officer reserved decision on the Board of Education's motion, and adjourned the hearing. The parties' attorneys reappeared before the hearing officer on December 1, 1998. The hearing officer orally ruled in favor of the Board of Education on its motion. He stated that the issue for the hearing was whether the IEP which the CSE had prepared for the 1998-99 school year was appropriate, and that he would not rule upon the issue of tuition reimbursement for the boy's attendance at the Kildonan School during the 1998-99 school year. Petitioner's attorney indicated that:

" … we are not interested in going forward with any proceeding unless we are going to be fully heard, and that would require your permitting us to present a case on reimbursement" (December 1, 1998 Transcript, pages 63-64).

        The hearing officer advised petitioner's attorney that she could appeal from his decision. Petitioner's attorney indicated that she would wait for a written decision by the hearing officer, and that petitioner would not withdraw her request for a hearing, although she would not participate in the hearing. Respondent's attorney stated that the Board of Education would not participate in a hearing if the parent was not present. The hearing officer then closed the hearing stating that:

"I cannot proceed if you are not willing to continue with the hearing under the conditions in which I just stated" (December 1, 1998 Transcript, page 65).

        The hearing officer issued a written decision on June 14, 1999, in which he reiterated his oral ruling that the hearing could proceed with respect to the appropriateness of the IEP prepared by the CSE for the 1998-99 school year, but that petitioner was barred from placing any information about the Kildonan School in the record because her son had not previously received special education services from respondent. The record does not disclose a reason for the delay in the hearing officer's written decision.

        Petitioner seeks an order annulling the hearing officer's decision, and directing respondent to afford her an impartial hearing at which her complaints about the CSE's recommendation for the 1998-99 school year will be heard and her request for an award of tuition reimbursement will be considered. Respondent opposes the petition, upon the grounds that petitioner is precluded by the provisions of 8 NCYRR 279.8 (c) from appealing from an interim order, and that petitioner had abandoned this proceeding by declining to participate further in the hearing.

        I will consider respondent's objections in reverse order. Respondent is correct that an award of tuition reimbursement is only one of a number of remedies which may be available to a parent who pursues his or her Federal and State rights in a proceeding of this nature. Although the hearing officer in this proceeding ruled at the outset that the remedy of tuition reimbursement would not be available to petitioner, it does not follow that petitioner was excused from participating in the hearing. The preliminary rulings of a hearing officer are reviewable in an appeal from the hearing officer's final decision. Nevertheless, I find this appeal should not be dismissed on the grounds of abandonment. When he made his oral decision on December 1, 1998, the hearing officer indicated that petitioner could appeal from that decision. The transcript of the pre-hearing conference on that date indicates that it was understood that the hearing officer would issue a written decision from which petitioner would appeal. The written decision was delayed, but petitioner promptly appealed from it. Petitioner has not abandoned this proceeding.

        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 read 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 the 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."

        Since the hearing officer's decision relates to one possible remedy and does not finally determine the issues in this proceeding, I agree with respondent that this appeal must be dismissed as premature (Application of a Child with a Disability, Appeal No. 98-8). Petitioner may obtain review of the hearing officer's decision about her eligibility to obtain an award of tuition reimbursement when the other issues in this proceeding have been finally determined.


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