Application of the BOARD OF EDUCATION OF THE GRANVILLE CENTRAL SCHOOL DISTRICT, for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability
Judge & Duffy, attorney for petitioner, Monica A. Duffy, Esq., of counsel
Andrew K. Cuddy, Esq., attorney for respondent
Petitioner, the Board of Education of the Granville Central School District, appeals from the decision of an impartial hearing officer which granted respondent's motion for a directed verdict and, inter alia, ordered petitioner's Committee on Special Education (CSE) to conduct a series of new evaluations of the student, then develop a new 2004-05 individualized education program (IEP) for the student, and purportedly allowed the parties to return to the hearing if they could not agree on the student's revised program. The appeal must be sustained in part.
Respondent's daughter is a twelve-year-old girl who has been diagnosed with Down syndrome, Pulmonary Fibrosis, Bronchiectosis, Chronic Sinusitis, Gastroesophageal Reflux Disorder, and myopia (Dist. Ex. 20 at p. 4, Dist. Ex. 2). Her oxygen level is influenced strongly by her physical activity and general health (Dist. Ex. 7). She can ambulate independently, but has supplemental oxygen and a wheelchair available as needed, and her oxygenation levels need to be monitored frequently throughout the day (Dist. Ex. 2 at p. 4, Dist. Ex. 7). She can eat independently, but needs her food to be cut into very small pieces and needs her eating to be monitored to prevent choking and/or reflux (Dist. Exs. 2, 6, 20). The student has been classified by petitioner's CSE as multiply disabled (Dist. Exs. 2, 20).
During the 2003-04 school year respondent's daughter was receiving special education and related services pursuant to an IEP developed by petitioner's CSE which placed her in third grade in Granville Elementary School in a 12:1+1 60 percent integrated class setting (Dist. Ex. 20; Tr. pp. 28-29). The class consisted of approximately 20 to 23 students, up to 12 of which were classified as students with disabilities (Tr. pp. 29-31).1 The IEP provided respondent's daughter with related services consisting of group occupational therapy for 30 minutes once per month, group physical therapy for 30 minutes twice per month, group speech-language therapy for 30 minutes twice per week, individual speech-language therapy for 30 minutes three times per week, group assistive technology services for 30 minutes four times per week, and consultant teacher services in reading and math for 60 minutes once per month (Dist. Ex. 20 at pp. 1-2; Tr. p. 105). In addition, due to her health needs, the student was provided with individual nursing services for 15 minutes at least three times per day, and a full-time individual teacher's assistant (Dist. Ex. 20 at p. 1; Tr. p. 32).
During the 2003-04 school year respondent's daughter mastered many of her IEP goals and objectives (Dist. Ex. 8). By the end of the school year she could deliver the daily bulletin to classroom teachers without a picture prompt, could work for five minutes independently if she enjoyed the task, could follow a daily schedule by following picture icons, could count to six and sometimes ten, and could set a table using a picture template (Dist. Ex. 8). Although she was "excellent" at matching, it was noted that she still required prompting and icons to complete most tasks (id. at p. 5).
Several evaluations were conducted in spring 2004 in preparation for development of the student's 2004-05 IEP. A speech-language evaluation completed by the student's speech-language therapist on April 19, 2004 indicated that respondent's daughter's spontaneous utterances had increased to two words, and she was able to imitate four words consistently (Dist. Ex. 17; Tr. p. 296). The evaluator reported that the student's vocabulary had expanded from nouns to include action verbs, as well as some adjectives and question words (id.). The student's eye contact was also improving (id.). The therapist attempted to administer standardized testing (Bracken Basic Concepts), but the student was unable to effectively participate in the test (Tr. pp. 293-94). She concluded that the student continued to have significant impairments in expressive (age level of 1-2 years old) and receptive (age level of 4-5 years old) language skills, articulation, and oral motor abilities (Tr. pp. 294-95, 298). An occupational therapy evaluation completed April 30, 2004 noted that the student was able to complete her basic self-care needs, and was able to complete, with supervision, a variety of pre-vocational jobs at school, but still needed to continue to develop her skills in pre-vocational tasks (Dist. Ex. 6). A physical therapy evaluation completed on May 3, 2004 indicated that the student's oxygenation level varied with her activity level, and that she was able to pull her portable oxygen tank behind her when ambulating independently in school, but needed to be accompanied full time by an individual assistant (Dist. Ex. 7). The physical therapist noted that the student was restricted from using the stairs more than once per day, and that her oxygen levels needed to be monitored closely by the school nurse (id.). Although the student's last full psychological evaluation was conducted two years ago on February 27, 2002, the school psychologist did administer the Wechsler Individual Achievement Test-Second Edition (WIAT-II) to the student on May 4, 2004, which revealed that the student was functioning at a grade equivalent of prekindergarten level in reading, mathematics, and written language (Dist. Ex. 9).
On May 7, 2004, the CSE met to review the results of the student's most recent evaluations, class performance and progress reports, and to discuss the student's placement for 2004-05 (Dist. Ex. 3; Tr. pp. 35, 38, 45-51, 107, 111-13, 123-24, 167, 173-75, 177, 205-06, 237-39, 301-02; see Dist. Exs. 5, 6, 7, 8, 9, 17). Members present included the student's special education teacher/case manager (see Tr. p. 218), regular education teacher, assistive technology teacher, physical therapist, speech-language therapist, occupational therapist, the CSE Chairperson, the school psychologist, and the parent (Tr. pp. 36-37, 46). The school staff noted at the meeting that respondent's daughter had "adjusted very well to the program" (Dist. Ex. 3). They noted she was working on writing her name and doing simple number skills (id.). Her speech had improved, but she still needed to work on oral motor skills, intelligibility, and vocabulary (id.). She was able to listen and follow one-step directions, and was working on two-step directions (id.). She was starting to use the computer's assistive technology to write sentences with picture symbols (id.). Her motor control was "very good" and her mousing skills were "great," but she needed to develop more independence with her computer skills (id.). The CSE Chairperson noted that although the student had been in a blended third grade classroom with some regular education students for 2003-04, she "didn't actually participate with the third grade class that often, because cognitively she wasn't able to follow the third grade curriculum" (Tr. p. 52; see also Tr. pp. 53, 73, 183-84); the student's special education teacher and speech-language therapist agreed (Tr. pp. 212, 227-28, 244-45, 312, 321). The school members of the CSE suggested to the parent that the appropriate class for the student for 2004-05 would be a self-contained 12:1+1 special education class composed of students 11 to 13 years old in Granville Elementary School, which focused on functional reading, math, and life skills (Dist. Ex. 3; Tr. pp. 35, 51, 63, 66, 343). The student would continue to participate with nondisabled peers in "specials" such as library, music, art, physical education, and computer classes (Tr. pp. 75-76, 178). The student's mother disagreed with the suggested placement, indicating her preference that her daughter be placed in the Granville Junior/Senior High School (Dist. Ex. 3; Tr. pp. 394, 72, 243, 307-08; see Tr. pp. 21-23). The CSE Chairperson recommended that the parent visit the suggested classroom, and the meeting was adjourned (id.; Tr. p. 62).
On July 26, 2004 the CSE met and developed the student's educational program for the 2004-05 school year (Dist. Ex. 2). The 2004-05 IEP described the student as generally very happy and sociable (id. at p. 4). Weaknesses included significantly impaired receptive and expressive language abilities, severely impaired oral motor and articulation abilities, as well as deficits in life skills, independence, attention to tasks, counting, and identifying numbers and letters (id. at pp. 2-4). Strengths included matching pictures and memory games (id. at p. 3). The CSE recommended that the student be placed in the fifth grade at Granville Elementary School in its self-contained 12:1+1 special education class with related services consisting of individual occupational therapy for 30 minutes once per month, group physical therapy for 30 minutes twice per month, group speech-language therapy for 30 minutes once per week, individual speech-language therapy for 30 minutes three times per week, group assistive technology services for 30 minutes twice per week, and 5:1 assistive technology services for 30 minutes twice per week (Dist. Ex. 2 at p. 10). In addition, the student was again provided with individual nursing services for 15 minutes three times per day, and a full-time individual teacher's assistant (id.; see Tr. p. 52). The IEP included goals and objectives for intelligibility, receptive and expressive language skills, pre-vocational skills, independence and attention to tasks, as well as identifying letters, coins, numbers, and community signs (Dist. Ex. 2 at pp. 5-9). The student's mother again objected, stating that her daughter should be placed in high school where, with the help of a teacher's assistant, she could be exposed to more academic work with more mature students (Dist. Ex. 2 at p. 17; Tr. pp. 394, 80). The school psychologist, the student's special education teacher, her speech-language therapist and the CSE Chairperson related that the student was socially and emotionally not at a high school level, and that cognitively she was still at a prekindergarten level (Dist. Ex. 2; see Tr. pp. 80, 93, 308). The speech-language therapist opined that the communication level of the students in the special education high school class was at least five grade levels above respondent's daughter's level (Tr. pp. 308-09). They advised that respondent's daughter would not be able to do the seventh and eighth grade academics required in the high school's special education program, even with a teacher's assistant to supplement the instruction, and that she needed more direct teacher instruction focusing on basic functional reading, math, and life skills that would be provided in the self-contained 12:1+1 setting with students at the same level she was at in terms of academics, communication, and maturity (Dist. Ex. 2; Tr. pp. 71-72, 76-79, 88-89, 211, 308). The superintendent encouraged the mother to visit the recommended class, and suggested that the CSE could reconvene in six months to review the student's progress in the program (Dist. Ex. 2).
By letter dated September 21, 2004, respondent objected to the 2004-05 IEP, and requested an impartial hearing (Parent Ex. A). The student did not attend school at the start of the 2004-05 school year, but instead received private special education tutoring services at home for one hour per day from the instructor of the district's recommended self-contained classroom; these services were originally provided in response to a two-week medical excuse, but continued throughout the hearing (Tr. pp. 91, 185, 354, 383-384). The hearing commenced on November 1, 2004. On November 2, 2004, at the close of the district's case-in-chief, the issue of the student's pendency placement arose (Tr. p. 386). After testimony from the parent on safety concerns with the student's last placement (Tr. pp. 388-419), the impartial hearing officer made an interim ruling that the student's pendency placement was the 2003-04 IEP, with the addition of a transition plan which required at least three half-hour consults during the first five days of school with the parent, the school nurse, and the student's teacher assistant to discuss the student's updated medical reports and health issues concerning choking and proper oxygen levels, and weekly consults between the school nurse and the parent thereafter (IHO Ex. 1 at pp. 3-10). Neither party has appealed this pendency order, hence that determination is final and binding upon the parties (see Application of the Bd. of Educ., Appeal No. 03-110; Application of a Child with a Disability, Appeal No. 98-53; 34 C.F.R. § 300.510[a]; 8 NYCRR 200.5[i][v]).2
On that same day, the impartial hearing officer made a finding on the record that the district failed to perform adequate evaluations (IHO Ex. 1 at pp. 19-20) and issued an oral interim order requiring the district to conduct new evaluations of the student, including a medical evaluation, a functional behavioral assessment, a classroom observation, a psychoeducational evaluation, a speech-language evaluation, an occupational therapy evaluation, and a physical therapy evaluation (IHO Ex. 1 at pp. 34-39). Upon the impartial hearing officer's suggestion (IHO Ex. 1 at p. 31), respondent's attorney then made an oral motion for a directed verdict for a final decision in favor of the parent, finding that, due to inadequate evaluations, the district has failed to meet its burden of proof in demonstrating that it offered the student an appropriate program (IHO Ex. 1 at p. 32). In response to the impartial hearing officer's statement that he intended that the parties would return to the hearing if they could not agree on a proper program after the new evaluations were completed (IHO Ex. 1 at p. 33), respondent's attorney also requested that the impartial hearing officer retain jurisdiction (IHO Ex. 1 at p. 41). The impartial hearing officer extended the record close date until November 23, 2004 for submission of briefs on the directed verdict issue and extended the decision due date until December 3, 2004 (IHO Exs. 2, 3). On November 9, 2004, respondent's attorney submitted a written motion for a directed verdict and for the impartial hearing officer to retain jurisdiction (IHO Ex. 4). On November 23, 2004, the district submitted papers in opposition to the motion, and asked that the interim decision ordering new evaluations be annulled and that the impartial hearing officer recuse himself (IHO Ex. 5). In a reply dated November 29, 2004, the parent's attorney formally rested the parent's case and again moved for a final decision in the parent's favor finding that the district had not met its burden (IHO Ex. 6). At the time of their written submissions, neither party had available to them a transcript of the proceedings (IHO Decision at p. 2; Pet. ¶ 24; Ans. ¶ 24).
On December 7, 2004 the impartial hearing officer rendered his decision in which he denied the district's motion for recusal and, in effect, granted the parent's motion for a directed verdict by finding that the district failed to properly evaluate the student prior to a "significant" change in her placement to a more restrictive setting (IHO Decision at pp. 5-7). He then "remand[ed] the matter to the CSE to complete the updated evaluations as decided in my order dated November 11, 2004" (IHO Decision at p. 8).3 After receipt of the impartial hearing officer's December 7 decision, a telephone conference was conducted between the parties and the impartial hearing officer to clarify the decision and determine how to proceed (Pet. ¶ 22; Ans. ¶ 22). The impartial hearing officer informed the parties that the December decision was a final decision, but that the CSE must review the new evaluations and develop an appropriate IEP for 2004-05, and if the parties still disagreed on the IEP, they would continue the hearing (Pet. ¶ 23; Ans. ¶ 23).
Petitioner appeals the December 7, 2004 decision, claiming that the impartial hearing officer had no authority to grant a directed verdict under the Individuals with Disabilities Education Act (IDEA), that additional evaluations were not required, and requests that the decision be annulled in its entirety, along with any part of the November interim order not pertaining to pendency, and that the July 26, 2004 IEP be found to be an appropriate program for the student for the 2004-05 school year. Respondent argues that petitioner's appeal is untimely.
Respondent argues that to the extent that petitioner appeals from any part of the impartial hearing officer's order made during the hearing on November 2, 2004, the appeal must be dismissed as untimely because the petition was served more than 35 days from the date of that order, excluding the date of the mailing and the four days subsequent thereto (see 8 NYCRR 279.2[c]). Respondent's argument is without merit. Petitioner is correct in its assertion that, with the exception of an interim pendency order, petitioner was precluded by regulation from appealing from any interim ruling, decision, or order made by the impartial hearing officer prior to the closing of the record and the issuance of a final decision (see 8 NYCRR 279.10[d]). Thus, petitioner was required to wait until the record was closed and a final decision was rendered in order to appeal the interim order. The petition was served on January 14, 2004, which is within the regulatory time allowed from the date of the impartial hearing officer's December 7, 2004 final decision; therefore, the appeal is timely.
The purpose behind the IDEA (20 U.S.C. §§ 1400 - 1487) is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][A]). A FAPE consists of special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written individualized education program (IEP) (20 U.S.C. § 1401[D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]). The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 ; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 04-043).
An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). Federal regulation requires that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a]; see also 8 NYCRR 200.4[d][i]). School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1).
In judicial proceedings, "a directed verdict is granted only when, viewing the evidence in the light most favorable to the non-moving party, 'there can be but one conclusion as to the verdict that reasonable persons could have reached'" (Erhlich v. Town of Glastonbury, 348 F.3d 48, 52 [2d Cir. 2003], quoting Indu Craft, Inc. v. Bank of Baroda, 47 F.3d 490, 494 [2d Cir. 1995] [citations omitted]; see also Fed. R. Civ. P. 50[a] [stating that a directed verdict is proper when "there is no legally sufficient evidentiary basis for a reasonable jury to find for (the non-moving) party on that issue"]).
Petitioner is correct in its assertion that there is no provision in the IDEA, New York Education Law, or state and federal implementing regulations authorizing an impartial hearing officer to consider a motion for a directed verdict in a due process hearing. While some jurisdictions have found that state law may allow for the use of directed verdicts in IDEA proceedings (see, e.g.,Smith v. Parham, 72 F.Supp. 2d 570 [D.Md. 1999]), other jurisdictions have been reluctant to encourage their use. For example, a recent administrative decision from California found that
"[s]pecial education law does not set forth a procedure for summary judgment or directed verdict motions in due process hearings. In any event, if there is a disputed issue of material fact with respect to the issue[s] presented in a due process hearing, such a motion should be denied so that the hearing officer may take testimony and documentary evidence at the hearing to resolve any such disputed factual issues."
(Rim of the World Unified Sch. Dist., 104 LRP 44822 [SEA CA 3004]).
Similarly, a recent Michigan administrative decision urged caution in such situations, because
"a motion for a directed verdict stops the hearing process…This hearing officer, absent clarification from a court of competent jurisdiction regarding the appropriateness of granting a motion for a directed verdict, believes she must rule on the side of caution to not grant a directed verdict if the issues are hearable under IDEA"
(Fenton Area Pub. Schs., 103 LRP 8562 [SEA MI 2002]).
In New York State, although the formal rules of evidence and motion practice that are applicable in civil proceedings generally do not apply in impartial hearings (see Application of a Child with a Disability, Appeal No. 99-5; Application of a Child with a Disability, Appeal No. 96-45), nothing precludes an impartial hearing officer from considering a motion by either party under appropriate circumstances (Application of a Child with a Disability, Appeal No. 96-45; see Application of a Child with a Disability, Appeal No. 04-061 [motion to identify the issues]; Application of a Child with a Disability, Appeal No. 04-046 [motion for recusal]; Application of a Child with a Disability, Appeal No. 04-018 [recognizing motion for summary judgment could be used in IDEA proceedings in certain circumstances if there is a lack of any genuine issue of material fact and both sides have had an opportunity to present evidence]). Under New York State regulations, an impartial hearing officer must provide all parties with an opportunity to present evidence and testimony, including the opportunity to confront and cross-examine witnesses (8 NYCRR 200.5[i][xii]; see also 34 C.F.R. § 300.509). The impartial hearing officer must determine when the record is closed, and his or her decision must be based solely upon the record of the proceedings, with references to the hearing record to support all findings of fact (8 NYCRR 200.5[i][v]). While an impartial hearing officer can and should limit the introduction of repetitious or immaterial testimony or evidence during the hearing (8 NYCRR 200.5[i][xii][c], [d]), it is also an impartial hearing officer's responsibility to ensure that there is an adequate record upon which to permit meaningful review (Application of a Child with a Disability, Appeal No. 04-024; Application of a Child with a Disability, Appeal No. 03-003; Application of a Child with a Disability, Appeal No. 00-039). Piecemeal bifurcation is discouraged in instances where it hinders the development of a complete record for appellate review (see Application of a Child with a Disability, Appeal No. 03-003). Similarly, it has been found that the use of directed verdict motions should be discouraged where they delay the final decision in an impartial hearing (seeApplication of the Bd. of Educ., Appeal No. 99-65; but cf. Application of the Bd. of Educ., Appeal No. 92-10).
Applying these principles to the instant case, although the impartial hearing officer was within his authority to order an independent evaluation, if necessary, during the hearing (8 NYCRR 200.5[i][viii]), where an impartial hearing officer closes the record and grants a directed verdict, he must be certain that "viewing the evidence in the light most favorable to the non-moving party, 'there can be but one conclusion as to the verdict that reasonable persons could have reached'" (Erhlich, 348 F.3d at 52 [citations omitted]). In the instant case, where the district showed that prior to developing the 2004-05 IEP it conducted a new speech-language evaluation, an occupational evaluation, a physical therapy evaluation, a WIAT-II, and considered various first-hand teacher reports, reasonable persons could have differed as to whether or not the district had performed an adequate evaluation. In situations where an impartial hearing officer takes the drastic step of stopping the hearing mid-way and rendering a final decision, I find that, in the interests of insuring a complete record for review and protecting the due process rights of both parties, the better practice is to allow respondent the opportunity to present his or her case and enter any other relevant information on the provision of a FAPE into the record before closing the record and rendering a decision (see generally Application of a Child with a Disability, Appeal No. 03-003). In this way also, should the decision be appealed, on review, if the district's evaluations are found to be adequate, both sides still have had the opportunity below to develop a sufficient record to allow for a full review on the issue of whether or not the district provided a FAPE to the student, thus avoiding an unnecessary remand for a new hearing to develop a more complete record. In addition, I note that in this case the hearing was stopped for a month while both sides submitted briefs prior to the impartial hearing officer rendering his decision on the directed verdict issue. Had the impartial hearing officer ultimately denied the directed verdict, a month would have been lost out of the hearing. Since the regulations governing impartial hearings allow each party, barring unusual circumstances, up to one day to present their case (8 NYCRR 200.5[i][xiii]), the utility of directed verdicts in expediting IDEA proceedings is questionable, and their use should generally be discouraged (see Application of the Bd. of Educ., Appeal No. 99-65).
As to the necessity of the ordered evaluations in the instant case, "[a]n impartial hearing officer may order that a child be evaluated at school district expense (8 NYCRR 200.5 [i][viii]). However, that power is not unlimited" (Application of the Bd. of Educ., Appeal No. 98-30). Although the impartial hearing officer had the authority to order the CSE to conduct additional evaluations if warranted (see, e.g., Application of the Bd. of Educ., Appeal No. 04-076; Application of a Child with a Disability, Appeal No. 04-004 [SRO affirms series of evaluations ordered by IHO and remand to CSE]; Application of a Child with a Disability, Appeal No. 02-108 [SRO affirms IHO order for a psychiatric evaluation]; Application of the Bd. of Educ., Appeal No. 98-30 [SRO affirms IHO order for an assistive technology evaluation]), whether or not the impartial hearing officer in this instance had a sound basis to order each and every one of these additional evaluations is questionable (Application of the Bd. of Educ., Appeal No. 04-076). However, under the circumstances of the instant case, it is undisputed that the district has, at the time of this appeal, already completed all of the new evaluations that were ordered by the impartial hearing officer (see Pet. ¶ 15; Ans. ¶ 15); hence, any review of the merits of his decision to order those evaluations would at this point in time serve no useful purpose.
Although not in the December 7, 2004 decision, it is undisputed from the impartial hearing officer's statements during his November 2, 2004 oral orders and from his telephone conference to clarify the decision that he also intended to retain jurisdiction over any subsequent IEP developed by the CSE for the 2004-05 school year (see IHO Ex. 1 at pp. 23, 33; Pet. ¶ 23; Ans. ¶ 23). I find that such retention would be in contravention of the rotational selection process mandated by applicable state statute and regulations (see N.Y. Educ. Law § 4404; 8 NYCRR 200.5[i][i]; 8 NYCRR 200.2[e]; 8 NYCRR 200.2[b]). Under state and federal regulations, absent a bona fide extension, a due process hearing must be completed within 45 days of the receipt by the board of education of a request for a hearing or after initiation of the hearing by the board (34 C.F.R. § 300.511[a]; 8 NYCRR 200.5[i]). There is no authority for an impartial hearing officer to generally assume jurisdiction with respect to all matters reportedly arising from the implementation of the impartial hearing officer's decision, or with respect to any future dispute between the parties (Application of a Child with a Disability, Appeal No. 04-024; Application of the Bd. of Educ., Appeal No. 03-105; Application of the Bd. of Educ., Appeal No. 02-081; Application of the Bd. of Educ., Appeal No. 02-008). Especially where one party objects, as petitioner did here (IHO Ex. at p. 41) (see Application of a Child with a Disability, Appeal No. 03-105; Application of the Bd. of Educ., Appeal No. 03-022; Application of a Child with a Disability, Appeal No. 01-057; Application of the Bd. of Educ., Appeal No. 99-77; Application of a Child with a Disability, Appeal No. 96-45; but cf., Application of a Child with a Disability, Appeal No. 98-9 [consent of both parties was not necessary to retain limited jurisdiction over only the enforcement of a triennial order]). Accordingly, any future request for a due process hearing by either the parent or the district is subject to the rotational process identified by state regulations.
Petitioner also challenges that part of the impartial hearing officer's decision that apparently intended to order the CSE to reconvene and develop a new IEP incorporating the results of the new evaluations (see IHO Ex. 1 at p. 33; Pet. ¶ 23, Ans. ¶ 23). Irrespective of whether or not the evaluations were properly ordered, the regulations require that each district must ensure that the CSE revises the IEP as appropriate to address the results of any reevaluations (34 C.F.R. § 300.343[c][ii]; 34 C.F.R. § 300.321[b]; see 8 NYCRR 200.4[b]). If the CSE has not already reconvened to adjust the 2004-05 program to reflect the results of the new evaluations, in the interests of developing an appropriate program for the student based on the most recent evaluative material, I will direct it to do so with due haste, as the school year is now more than half over. This may or may not change the student's placement as recommended in the July 26, 2004 IEP. In the event that the parent objects to the new 2004-05 IEP, she may again request a hearing, in which case a new impartial hearing officer will be appointed in accordance with the rotational selection process as mandated by state regulations. I encourage the parties to work cooperatively in the interests of providing this student immediately with an appropriate educational program that meets her identified special education needs, including any relevant health and safety concerns (see Lillbask v. State of Conn., 2005 WL 237199, __F.3d __ [2d Cir. Feb. 2, 2005]).
In light of my decision to remand the matter to the CSE to develop an appropriate IEP for the student for the 2004-05 school year, I decline to make a determination on the appropriateness of the July 26, 2004 IEP, since any new IEP the CSE develops with new evaluative data will render the July 26, 2004 IEP moot. Insofar as petitioner requests that it be allowed to use the new evaluations in the development of the student's program for 2005-06, there is nothing that prevents the CSE from doing so.
I have considered petitioner's remaining contentions and I find them to be without merit.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the impartial hearing officer's December 7, 2004 Decision and Order is hereby annulled; and
IT IS FURTHER ORDERED that the CSE reconvene within 15 calendar days from the date of this decision to develop a new 2004-05 IEP for the student which recommends an appropriate placement and program for the student in the least restrictive environment based upon the results of the student's most recent evaluations.
1 The integrated class that respondent's daughter was in for the 2003-04 school year reportedly included five or six students with disabilities (Tr. p. 275). The remaining students with disabilities in the class were approximately two to three years ahead of respondent's daughter academically (Tr. pp. 278-79).
2 According to the parties, as of the date of this appeal, the parent has chosen not to enroll her daughter in the pendency placement; instead the student has continued to receive home instruction services (Pet. ¶ 13; Ans. ¶ 13).
3 While the impartial hearing officer did not specifically mention in his written decision the issue of retaining jurisdiction, his statements on the record in his November 2, 2004 order and in his post-decision telephone conference with the parties indicated that, in the event that the parties disagreed on the revised program, he intended to allow either party to return to the hearing after the new evaluations were completed and the 2004-05 IEP was revised (IHO Ex. 1 at pp. 23, 33; Pet. ¶ 23; Ans. ¶ 23).