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Decision No. 12,579

Application of a CHILD WITH A HANDICAPPING CONDITION, by his parent, from action of the Board of Education of the City School District of the City of New York regarding the holding of a meeting.

Decision No. 12,579

(September 5, 1991)

Hon. Victor A. Kovner, Corporation Counsel, attorney for respondent, Lawrence E. Becker, Phoebe V. Redmond, Roslyn Z. Roth and Paul Ivers, Esqs., of counsel

SOBOL, Commissioner.--Petitioner requests an order directing respondent to hold a meeting of its committee on special education to review her son's academic progress. Petitioner also requests that respondent be directed to provide her with independent speech and psycho/educational evaluations of her son at public expense. The appeal must be dismissed.

Petitioner's son is nine years old and classified by respondent's committee on special education (CSE) as learning disabled in mathematics. His educational history is fully set forth in a prior decision of the Commissioner of Education (Application of a Child with a Handicapping Condition, 30 Ed Dept Rep 108). In January 1990, the CSE developed an individualized education program (IEP) for petitioner's son which provided for resource room services and testing modifications in math. Because petitioner objected to the resource room placement, she refused consent and requested an impartial hearing. The hearing took place over three days between February 14 and April 5, 1990. The hearing officer rendered his decision on May 10, 1990, upholding the IEP. On September 11, 1990, the Commissioner of Education sustained in part petitioner's subsequent appeal of the hearing officer's decision (id.).

During the course of that prior appeal to the Commissioner, petitioner requested a meeting of the school based support team of the CSE to review her son's academic progress. When respondent did not immediately respond, petitioner commenced this appeal.

In this appeal, petitioner contends that respondent has improperly failed to grant her request for a CSE review of her son's progress. In addition, she maintains that she is entitled to have independent speech and psycho/educational evaluations of her son conducted at public expense. Petitioner also requests advisory opinions as to whether a school district may have its attorney attend CSE meetings and whether consultant teacher services may be provided to students attending nonpublic schools.

Petitioner has submitted a reply to respondent's answer, in which she seeks to raise new issues. Pursuant to the Regulations of the Commissioner of Education, a reply may respond to affirmative defenses and to new material raised in an answer (8 NYCRR 275.3,275.14). The reply, however, does not provide an opportunity for the petitioner to raise new issues (Application of a Child with a Handicapping Condition, 30 Ed Dept Rep 258). The new issues set forth in petitioner's reply are not properly before me, therefore, and will not be considered.

In connection with petitioner's request for a review of her son's progress, the record before me indicates that such review occurred on October 1, 1990. Accordingly, this appeal is academic insofar as it relates to such review. It is well settled that the Commissioner of Education will determine only matters in actual controversy and will not render a determination upon a controversy which subsequent events have laid to rest (Matter of Froebrich, 24 Ed Dept Rep 441; Matter of Parsell, 23 id. 33; Matter of Young, 22 id. 518).

Respondent contends that petitioner's request for an independent speech evaluation at public expense must be dismissed under the doctrine of resjudicata, arguing that such request has already been resolved in a previous appeal between the parties. In petitioner's first appeal (Application of a Child with a Handicapping Condition, supra), she raised the issue of an independent speech evaluation and it was determined that an independent speech evaluation is not needed (id. at 113). Having litigated this same issue and having received an adverse determination, petitioner is barred by the doctrine of resjudicata from relitigating this issue before me (Appeal of Roth, 26 Ed Dept Rep 165; Matter of Monaco, 24 id. 348; Matter of Gerber, 13 id. 19).

Regarding petitioner's request for an independent psycho/educational evaluation, "200.5(a)(1)(vi)(a) of the Regulations of the Commissioner of Education provides that the parent of a child suspected of having a handicapping condition must receive notice from the CSE chairperson that, if the parent disagrees with the evaluation obtained by the school district, the parent has a right to obtain an independent educational evaluation at public expense but that the school district may initiate an impartial hearing to show that its evaluation is appropriate; and, if the hearing officer finds that the district's evaluation is appropriate, the parent may obtain an independent evaluation, but not at public expense. In order to obtain an independent educational evaluation at public expense, a parent must inform the school district of his or her intention to do so and must give the school district an opportunity to request an impartial hearing on the issue. It is well settled that a district may not be charged with the costs of independent evaluations obtained by a parent prior to notice to the school district (Matter of Three Handicapped Children, 21 Ed Dept Rep 353; Matter of Bd. of Ed., Sayville UFSD 18 id. 608; Matter of Child Suspected of Having a Handicapped Condition, 23 id. 140; Matter of a Child with a Handicapping Condition, 26 id. 439). The record indicates that, prior to instituting this appeal, petitioner had not requested respondent to fund an independent psycho/educational evaluation or given it an opportunity either to agree to the evaluation or to refer the matter to a hearing. Accordingly, petitioner is not entitled to such funding. Petitioner may, of course, request such an evaluation from respondent, who may then respond in accordance with the provisions of 8 NYCRR 200.5(a)(1)(vi)(a).

Finally, petitioner seeks advisory opinions as to whether a CSE may have the school attorney attend its meeting and whether consultant teacher services may be provided to students attending nonpublic schools. It is well settled that the Commissioner will not issue purely advisory opinions (Application of a Child with a Handicapping Condition, 29 Ed Dept Rep 87; Application of a Handicapped Child, 24 id. 223; Matter of Sullivan, 23 id. 264).

THE APPEAL IS DISMISSED.

END OF FILE