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


Donoghue, Thomas, Auslander, and Drohan, Esqs., attorneys for respondent, Daniel Petigrow, Esq., of counsel


       Petitioners appeal from an impartial hearing officer's oral decision granting an application by respondent's attorney to adjourn the hearing for the purpose of having respondent's Committee on Special Education (CSE) meet with petitioners to complete their daughter's individualized education program (IEP) for the 2000-01 school year. The appeal must be dismissed as premature.

        This proceeding was commenced in April 2000 by one of the petitioners, who asserted that the student's classification and IEP were inappropriate (Exhibit D-1). The hearing began on April 28, 2000. At the outset of the hearing, the parties stipulated that an independent psychological and educational evaluation would be performed at school district expense, and that one of respondent's employees would perform a speech/language evaluation. They further stipulated that the CSE would review the results of those evaluations at a mutually convenient time, and that respondent would provide a tutor for the student during the summer of 2000. The hearing officer accepted the stipulation, and adjourned the hearing.

        The CSE reportedly met for its annual review of the student on May 30, 2000. The student’s resource room teacher during the 1999-2000 school year testified that the CSE did not complete its work on the student’s IEP for the 2000-01 school year at the meeting (Transcript p. 564). The CSE apparently did not reconvene before the beginning of school in September.

        The hearing resumed on September 26, 2000, at which time the parties reached an agreement on an interim educational program consisting of resource room services, speech/language therapy, counseling, and an after school reading tutorial program (Transcript p. 15). They did not agree upon the methodology to be used in the reading program, or upon a number of the student's IEP annual goals, which were to be addressed at a future CSE meeting (Transcript p. 16). Respondent also agreed to pay for an independent occupational therapy sensory integration evaluation. The hearing officer directed the parties to clarify the issues yet to be resolved by no later than October 25, 2000 (Transcript p. 27).

        On October 27, 2000, respondent's CSE reportedly amended the student's IEP at a meeting which one of the petitioners attended (Exhibit D-3). The hearing reconvened three days later. When questioned by the hearing officer about the unresolved issues, petitioners' advocate indicated that petitioners disagreed with the CSE's recommendation that the student be classified as learning disabled. They preferred that she be classified as multiply disabled. Petitioners also asserted that the student should have a 12-month educational program rather than the ten-month program the CSE had recommended. The advocate also indicated that petitioners did not accept the after school reading program because they could not ascertain whether a specific methodology would be used in the program, and they challenged the appropriateness of the annual goals for the program. Petitioners also challenged most of the IEP’s annual goals for speech/language, and objected to the absence of goals for typing and daily living skills on the IEP. They further objected to the fact that the IEP did not provide for the use of books on tape and a computer, or include a transition plan. Petitioners indicated that they wanted the child to have an occupational therapy evaluation and an auditory integration screening test. In the absence of an agreement about the IEP, the hearing officer directed the parties to proceed with the hearing.

        During the next day of the hearing on November 1, 2000, the parties agreed to replace the student’s IEP goals for speech/language with the goals which her speech/language therapist had prepared in the spring of 2000 (Transcript pp. 232-234). On November 2, 2000, respondent’s attorney sought to have the IEP amended by substituting a set of goals and objectives for reading which the student’s reading teacher was using with the student (Exhibit D-10) for the reading goals and objectives on the October 27, 2000 IEP (Transcript pp. 307-308). Petitioners’ advocate objected to the attorney’s request, but the hearing officer appeared to grant the request (Transcript p. 440).

        At the hearing on November 3, 2000, the student’s resource room teacher for the 2000-01 school year testified that there were no goals or objectives for resource room on the draft IEP which she received at the beginning of the school year. The teacher prepared goals and objectives to be considered by the CSE at its October 27, 2000 meeting (D-14). She testified that the October 27 meeting was focused upon the student’s reading program, and the CSE did not consider her draft goals and objectives (Transcript pp. 611-615). Respondents sought to have the student’s IEP amended at the hearing to include the draft goals and objectives for resource room, but petitioners’ advocate would not agree to that request (Transcript pp. 617-618). The resource room teacher further testified that the CSE had not approved the student’s full IEP at its October 27, 2000 meeting (Transcript p. 662).

        Respondent’s attorney asked the hearing officer to suspend the hearing so that the CSE could complete the student’s IEP (Transcript p. 667). Petitioners’ advocate opposed the attorney’s request on the ground that it would delay the proceeding. The hearing officer ruled that he would adjourn the hearing for the purpose of allowing the CSE to meet on November 6, 2000, and that the hearing would reconvene at a mutually convenient date so he could determine whether there were any issues left to be resolved (Transcript p. 704).

        Petitioners object to the hearing officer interrupting the hearing to have the CSE complete their daughter’s IEP for the 2000-01 school year. They assert that the CSE either cannot or will not prepare an appropriate IEP for the student. Petitioners seek an order compelling respondent to contract with an approved private school for the student’s education.

        Respondent argues that this appeal is premature because there has been no final determination by the hearing officer. It contends that petitioners are in essence seeking review of an interim determination by the hearing officer, which I am precluded from reviewing by 8 NYCRR 279.8 (c). That regulation provides as follows:

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.

        I must agree with respondent that there has been no final determination by the hearing officer. Therefore, I cannot review at this time the hearing officer’s determination to interrupt the hearing and have the CSE complete the student’s IEP. I understand petitioners’ concern about the length of time it has taken for the CSE to complete an IEP for the student. I urge the parties to work together for the benefit of the child (Tucker v. Bay Shore UFSD, 873 F.2d 563 [2d Cir., 1989]).


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