05-035

           Petitioner appeals from the interim decision of an impartial hearing officer which denied her motion to dismiss respondent's request for an impartial hearing.  The appeal must be dismissed.

            Petitioner's son is 11 years old and classified as a student with multiple disabilities (Dist. Ex. A-2 at p. 1; July 9, 2004 Tr. p. 7).  The student's eligibility for special education services as a student with multiple disabilities is not in dispute (see 8 NYCRR 200.1[zz][8).  The central dispute between the parties in the hearing below is whether petitioner's son is eligible for extended school year (ESY) services (IHO Decision, pp. 1, 3; see 34 C.F.R. § 300.309; see also 8 NYCRR 200.6[j][1] and 200.1[aaa]).  Further, the parties have stipulated that the student is to receive ESY services pursuant to the pendency provisions of the Individuals with Disabilities Education Act (IDEA) and the New York State Education Law (see 20 U.S.C. § 1415[j]; 34 C.F.R. § 300.514; N.Y. Educ. Law § 4404[4]) until resolution of the student's eligibility for ESY services (IHO Decision, p. 1; July 9, 2004 Tr. pp. 17-18, 48-49).

             The impartial hearing officer was appointed by letter dated June 21, 2004 (Dist. Ex. A-1 at pp. 2-3).  A prehearing conference was held on July 9, 2004 (July 9, 2004 Tr. pp. 1-58).¹  As a result of the prehearing conference, the impartial hearing officer, inter alia, directed petitioner to obtain an independent neuropsychological evaluation or psychiatric evaluation, which was to be made available to the Committee on Special Education (CSE) by August 23, 2004 (IHO Decision, p. 1; see Ans. ¶ 5).  On the second day of hearings, December 20, 2004, petitioner moved to dismiss respondent's request for an impartial hearing (Dec. 20, 2004 Tr. pp. 27, 39).  On February 18, 2005, the impartial hearing officer rendered a written decision denying petitioner's “precipitous” motion to dismiss for failure to state a cause of action, concluding that petitioner failed to establish both the absence of any triable issues and her entitlement to relief as a matter of law or equity (IHO Decision, pp. 2-3). The impartial hearing officer noted, “there are a number of genuine facts and material issues which have yet to be addressed by either party” (IHO Decision, p. 2). She further noted that respondent had not finished presenting its case-in-chief at the hearing and that petitioner had not yet testified (IHO Decision, pp. 1, 2). She further concluded that petitioner’s motion to dismiss was predicated upon the alleged failure of respondent to abide by terms of a settlement agreement (IHO Decision, p. 1). Petitioner’s motion to dismiss describes the alleged breach of the settlement agreement as a failure of respondent to provide funding for a neurological exam.                      

             For purposes of context, a discussion of prior events is illustrative. Respondent's CSE met on April 9, 2003 (Dist. Ex. A-7 at p. 1) and recommended that the student attend a 10-month, self-contained 8:1+1 class for the 2003-04 school year (Dist. Ex. A-7 at p. 2).  The CSE recommended that for the 2003-04 school year the student receive 30 minutes of group speech-language therapy once a week, and 30 minutes of individual speech-language therapy three times a week (id.). 

             By letter dated April 13, 2003, petitioner requested an impartial hearing in connection with her son's educational program (see Dist. Ex A-20 at p. 3).  The student attended a Board of Cooperative Educational Services (BOCES) summer program in 2003 pursuant to a pendency order dated June 11, 2003 (see Dist. Ex A-20 at p. 5; July 9, 2004 Tr. pp. 19-20).  By stipulation dated September 15, 2003, petitioner withdrew her request for an impartial hearing, agreed to authorize the CSE to conduct a neuropsychological evaluation at the Stony Brook Cody Center (Cody Center) (see Dist. Ex. A-23), and agreed to attend a CSE meeting to review the neuropsychological evaluation and determine the student's need for ESY services  (Dist. Ex. A-20 at p. 4).  The parties further agreed that in the event the a dispute arose regarding the "need for summer services for the 2004-[05] school year, the Interim Order on Pendency dated June 11, 2003 [would] be implemented by the District pending the outcome of a hearing on the merits" and both parties agreed to "not unduly delay a hearing on the merits and use their best efforts to complete the hearing by May 2004" (Dist. Ex. A-20 at p. 5).

            By letter dated June 9, 2004 respondent requested the current impartial hearing "to determine the need for [ESY] services" for petitioner's son (Dist. Ex. A-1 at p. 4; Ans. ¶ 3).  Respondent contended at the impartial hearing that petitioner purposely delayed a neuropsychological evaluation from being conducted for her son for over eight months, arbitrarily postponed CSE meetings, and requested that the provision regarding pendency in the September 15, 2003 agreement (Dist. Ex. A-20 at p. 5) not be enforced (see Dist. Ex. A-1 at p. 5).

            Another CSE met on June 18, 2004 (Dist. Ex. A-2 at p. 1) and recommended that the student attend a 10-month, self-contained 8:1+1 class for the 2004-05 school year (Dist. Ex. A-2 at p. 2).  The CSE recommended that for the 2004-05 school year the student receive 30 minutes of group speech-language therapy once a week, and 30 minutes of individual speech-language therapy three times a week (id.).  No ESY services were recommended for the student (see Dist. Ex. A-2 at p. 2).  The CSE minutes, dated June 18, 2004 (Dist. Ex. A-3), and IEP meeting notes, dated June 18, 2004 (Dist. Ex. A-2 at p. 3), indicate that the report of the Cody Center's diagnostic evaluation dated May 25, 2004 (Dist. Ex. C) was not available as of the date of the June 18, 2004 IEP meeting (Dist. Ex. A-2 at p. 3, Dist. Ex. A-3 at p. 3).  The CSE minutes and meeting notes further indicate that the parent had postponed two CSE meetings and a third was deferred due to the absence of her attorney (id.)  They also indicate that petitioner disagreed with the CSE's recommendation, requested pendency placement for the summer program, and further indicated that respondent initiated an impartial hearing "to determine the need for [ESY] services"  (id.).           

            Petitioner contends on appeal that the only issue to be addressed in the impartial hearing is whether the student's placement for the 2003-04² school year is a 12-month program (Pet. ¶ 7) and asserts that the impartial hearing officer failed to address pendency as an issue in her order (Pet. ¶¶ 22-23).  Petitioner alleges that the student's pendency placement continues to be a 12-month program until the CSE reviews the results of a neuropsychological evaluation (Pet. ¶¶ 12, 19).  Petitioner further alleges that she had an independent neuropsychological evaluation completed that would be presented to the CSE at a scheduled annual review on April 11, 2005 (Pet. ¶ 26). She concludes that the issue of whether the student needs a 12-month program and is therefore eligible for ESY services for the summer of 2005 will only be “ripe for review” if there is a disagreement with regard to the recommended program at the April 11, 2005 CSE meeting (Pet. ¶ 27).  Petitioner requests that the State Review Officer stay the impartial hearing officer's order denying her motion to dismiss and "stay" the impartial hearing pending the State Review Officer's decision (Pet. pp. 5-6). 

           Respondent contends that petitioner's request for review of the impartial hearing officer's decision denying her motion to dismiss is premature because the decision is neither a pendency determination nor a final determination on the merits (Ans. ¶ 33).  Respondent further contends that petitioner's motion to dismiss is procedurally defective because it does not state facts upon which her requested relief could be granted (Ans. ¶¶ 34, 35).

          Jurisdiction of the State Review Officer in appeals from interim decisions of impartial hearing officer decisions is limited to pendency determinations (Application of a Child with a Disability, Appeal No. 04-064). The Regulations of the Commissioner of Education pertaining to practice on review of hearings for students with disabilities state:

(d) 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 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.

(8 NYCRR 279.10[d]).

            When petitioner brought this appeal, the hearing below had not come to a conclusion and the impartial hearing officer had not rendered a final decision pertaining to the central issue in dispute, which is, the appropriateness of respondent’s offered educational program for 2004-05 (Ans. ¶ 13).  Since the impartial hearing officer's decision to deny petitioner's motion to dismiss the proceeding does not finally determine the issues in this proceeding, I find that this appeal must be dismissed as premature (Application of a Child with a Disability, Appeal No. 99-52; Application of a Child with a Disability, Appeal No. 98-8).  Petitioner may obtain review of the impartial hearing officer's decision to deny her motion to dismiss when the issues in this proceeding have been finally determined (8 NYCRR 279.10[d]; Application of a Child with a Disability, Appeal No. 99-52).

            I have considered petitioner's contention that the impartial hearing officer failed to address pendency as an issue in her order (Pet. ¶¶ 22-23).  The impartial hearing officer determined that pendency "was resolved by a prior impartial hearing officer, and is not the focus of the instant matter" (IHO Decision, p. 3).  I agree with the impartial hearing officer that the parties have stipulated that the student is to receive ESY services (IHO Decision, p. 1), pursuant to an Interim Order on Pendency dated June 11, 2003 (see Dist. Ex. A-20 at p. 5) and a stipulation dated September 15, 2003 (Dist. Ex. A-20 at pp. 3-6) "pending the outcome of a hearing on the merits" (Dist. Ex. A-20 at p. 5).  Further, respondent asserts that the student's pendency placement will "remain undisturbed" until the issue regarding the student's eligibility for ESY services is resolved by an evaluation and determination of the CSE or a determination by the impartial hearing officer relative to the issue (see Ans. ¶ 28).  I find that there is no dispute over the student’s placement pending resolution of the complaint below and, as such, the instant appeal of an interim determination is not properly before me.

            I have considered petitioner's remaining contentions and respondent's remaining affirmative defenses and need not address them any further given the discussion and my determinations above.

THE APPEAL IS DISMISSED.