00-034

      Petitioner, the Board of Education of the Wappingers Central School District, appeals from an impartial hearing officer’s final decision, as well as his interim decisions, relating to the participation of petitioner’s then attorney in a March 10, 1999 meeting between various members of petitioner’s staff and the child’s father. The hearing officer found that the meeting, which petitioner insisted was a child study team meeting, was the equivalent of an individualized education program (IEP) team or Committee on Special Education (CSE) meeting, and that petitioner’s attorney did not have an unqualified right to attend such meetings. He directed the Board of Education to refrain from using child study team meetings constituted and conducted like the March 10 meeting to address the special education needs of this child and other children with disabilities. In addition, he directed the Board of Education to adopt a written policy setting forth the circumstances under which the school district attorney may attend a child’s IEP meeting.

        Respondent, the child’s father, cross-appeals from the hearing officer’s decision on the grounds that it allegedly does not comport with federal and state law. He seeks an order limiting the participants at such meetings to those individuals having special knowledge or expertise regarding the child. The appeal must be dismissed. The cross-appeal must also be dismissed.

        Respondent has raised two procedural objections to the appeal. He contends that the Board of Education’s petition is untimely, and that the Board of Education did not in fact authorize this appeal. A board of education must commence an appeal from a hearing officer’s decision by serving its petition upon the parent within 40 days after receipt of the decision (8 NYCRR 279.2[c]). Respondent asserts that petitioner received the hearing officer’s decision on March 23, 2000. Petitioner has not denied that assertion. The 40th day after that date was May 2, 2000. The petition was served upon respondent on May 18, 2000, or 16 days beyond the 40th day after receipt of the decision. The State Review Officer may, for good cause shown, excuse a delay in commencing an appeal upon a petitioner’s request that he do so. Petitioner has asked that its delay be excused, on the ground that the attorney who was responsible for preparing the petition had a death in his family causing him to be absent from his office. In the absence of any harm to the child as a result of the delay, I find that petitioner’s request should be granted.

        Respondent’s second objection to the petition is premised upon the provisions of 8 NYCRR 275.5, which is made applicable to appeals to the State Review Officer by 8 NYCRR 279.1(a). When an appeal is brought by a board of education, its petition may be verified by anyone who is familiar with the facts underlying the appeal, "pursuant to a resolution of such board authorizing the commencement of such appeal on behalf of such trustees or board." Respondent asserts that petitioner has not in fact authorized this appeal. Although he refers to certain meetings of the Board of Education which were held between the date when petitioner received the hearing officer’s decision and the date when this appeal was commenced, respondent has not provided copies of the minutes of such meetings. Nevertheless, petitioner has not responded to the assertion that it did not adopt a resolution authorizing this appeal. Under the circumstances, I find that the appeal must be dismissed (Application of the Board of Education of the Carmel Central School District, Appeal No. 00-004).

        The two portions of the hearing officer’s decision to which respondent objects found that resolution of the question of whether a school attorney could attend an IEP meeting depended upon the facts, and had to be decided on a case-by-case basis. The hearing officer rejected respondent’s request for an order barring the school attorney from attending any IEP meeting involving his son. The hearing officer premised his decision upon the provisions of 34 CFR 300.344(a) relating to the members of a child’s IEP team.

        The regulation provides that the IEP shall include the parent of the child, at least one regular education teacher if the child is or may be participating in the regular education environment, at least one of the child’s special education teachers, a representative of the school district who is qualified to provide or to supervise the provision of specially designed instruction to meet the unique needs of children with disabilities, and an individual who can interpret the instructional implications of the child’s evaluation results. In addition, the IEP team shall include: "At the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related service providers as appropriate" (34 CFR 300.344[a][6]). The regulation also provides that: "The determination of the knowledge or special expertise of any individual described in paragraph (a)(6) of this section shall be made by the party (parents or public agency) who invited the individual to be a member of the IEP[team]."

        In his decision, the hearing officer indicated that there might be circumstances where it was entirely appropriate for a school district attorney to be present at an IEP meeting, such as when there had been a legal ruling involving the child and the CSE and parent would benefit from having the attorney explain the ruling. He rejected the Board of Education’s contention that its attorney had an unqualified right to attend such meetings, and he rejected the parent’s contention that under no circumstances could the attorney attend any meeting involving his son. I find that the hearing officer’s decision is consistent with the regulation in question, as well as with prior decisions by the New York State Commissioner of Education on the subject (Application of a Child with a Handicapping Condition, 30 Ed Dept Rep 286; Application of a Student with a Disability, 36 Ed Dept Rep 152). Consequently, I find that the cross-appeal should be dismissed.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS DISMISSED.