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Decision No. 12,556

Application to reopen the appeal of a CHILD WITH A HANDICAPPING CONDITION, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Roslyn Union Free School District.

Decision No. 12,556

(August 5, 1991)

Bertram D. Daiker, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner seeks an order to reopen an appeal which I dismissed (see Application of a Child with a Handicapping Condition, 30 Ed Dept Rep 137). Petitioner contends that the appeal should be reopened because it was rendered under a misapprehension of fact and because he has new and material evidence to present that was unavailable at the time the original decision was rendered. The application is denied.

In the original appeal, petitioner challenged the decision of an impartial hearing officer that allowed respondent to evaluate his daughter in the absence of parental consent. Upon my review of the record, I concluded that there was sufficient evidence to evaluate the student to determine whether she was a child with a handicapping condition (see, Application of a Child with a Handicapping Condition, 30 Ed Dept Rep 137).

Petitioner alleges that the original decision was issued under a misapprehension of fact in that it improperly admitted evidence in violation of the "five day rule" (see, 8 NYCRR 200.5[c][8]). In addition, he now argues, for the first time, that the hearing officer's admission of the evidence without inquiring whether petitioner objected, is relevant to the issue of whether the hearing officer was impartial. Petitioner also asks that I reopen the decision to consider his daughter's progress since his original appeal was filed.

Applications for reopenings are governed by the provision of 8 NYCRR '276.8 which provides in pertinent part:

Applications for reopening are addressed solely to the discretion of the commissioner, and will not be granted in the absence of a showing that the decision which is the subject of such application was rendered under a misapprehension as to the facts or that there is new and material evidence which was not available at the time the original decision was made.... An application to reopen a decision shall set forth concisely the basis upon which the applicant believes such decision should be reopened.

Although not determinative here, I note that this regulation was amended on July 1, 1991, to preclude the filing of such applications in appeals brought pursuant to '4404 of the Education Law to ensure that decisions of the State Review Officer are final.

Petitioner's claim that the case should be reopened because certain evidence was improperly introduced was an issue raised and fully addressed in my prior decision. An application for reopening is not intended to provide an opportunity to reargue a prior decision (Appeal of Burke, 28 Ed Dept Rep 205). Therefore, this allegation does not constitute a basis upon which to grant petitioner's application.

A hearing officer's impartiality is an issue that must be raised in the first instance at the impartial hearing (Application of a Child with a Handicapping Condition, 28 Ed Dept Rep 240). Petitioner not only failed to raise his objection before the impartial hearing officer in the first instance, his argument is not based on new material not available at the time of the initial review and, therefore, will not be considered here.

Petitioner also seeks to reopen this case to consider his daughter's progress since my prior decision was issued. As a general rule, both state and federal law require exhaustion of administrative remedies which, in the first instance, requires full review of any new material by respondent's committee on special education (CSE) (Education Law '4404[1]; 8 NYCRR 200.5(c); Application of a Child with a Handicapping Condition, 29 Ed Dept Rep 394).

Accordingly, in the event respondent's CSE has not yet evaluated petitioner's daughter, it may proceed to do so as previously ordered. However, if upon its review of newly submitted material it no longer suspects that the child requires special education, the CSE would no longer have any basis to evaluate the child and, of course, would be under no obligation to do so.