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Decision No. 12,740

Application of a CHILD WITH A HANDICAPPING CONDITION, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of New York.

Decision 12,740

(July 2, 1992)

Michael G. Flanagan, Esq., attorney for petitioner

Hon. O. Peter Sherwood, Corporation Counsel, Lawrence E. Becker, Counsel to the Chancellor, attorneys for respondent, Roslyn Z. Roth, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from the determination of an impartial hearing officer upholding the recommendation of respondent's District 31 Committee on Special Education (hereinafter the "CSE") that her son attend a Specialized Instructional Environment (SIE) III program for autistic children. The appeal must be dismissed.

In March 1988, petitioner's son was referred to the CSE in contemplation of his entry into the public schools, scheduled for September 1988. On June 3, 1988, the CSE recommended that petitioner's son be classified learning disabled/speech impaired and placed in a special education class with a 10:1+1 student-to-staff ratio. On July 7, 1988, petitioner objected to the proposed recommendation, informing the CSE that she had enrolled her son in a private summer program at the Eden II School for Autistic Children (Eden II). Because petitioner's son had not been classified autistic, the CSE notified petitioner that his placement at Eden II was inappropriate. However, the CSE agreed to reconvene to consider additional evaluations that petitioner had not provided during the original review.

In August 1988, members of the CSE observed petitioner's son in the Eden II program. The CSE reconvened on August 16, 1988, to review the additional material, as well as the observation reports from Eden II. Based on the new material, the CSE recommended that the student be reclassified autistic. However, because the CSE was unable to offer an appropriate placement within the timeframe required by law, petitioner received a "Nickerson letter," indicating that she had the right to place her son in an approved private program, at public expense. Petitioner's son consequently attended Eden II for the 1988-1989 school year.

On July 14, 1989, the CSE met to develop petitioner's son's individualized education program (IEP) for the 1989-1990 school year. The CSE considered classroom reports; updated social, educational and speech and language evaluations; and psychiatric and psychological evaluations performed in 1988. Based on its review, the CSE recommended that petitioner's son continue to be classified autistic, and placed in a 12-month SIE III class with a student-to-staff ratio of 6:1+1. The CSE also recommended that the child receive speech and language therapy five times per week, in a maximum group size of two students to one professional, and that he be provided with adaptive physical education.

Objecting to the CSE's recommendation, petitioner requested an impartial hearing, which took place on August 9, 14 and 18, 1989. The impartial hearing officer rendered her decision on September 28, 1989. The hearing officer upheld the CSE's recommendations, but determined that the student's IEP was deficient with respect to annual goals. She found that petitioner's son had already mastered many of the stated goals. Consequently, the CSE reconvened on October 10, 1989, in accordance with the hearing officer's direction. The CSE developed a revised IEP, which included updated annual goals. The revised IEP also provided parent counseling as a related service.

Following the CSE's revised recommendations, petitioner asked the hearing officer to reopen this matter to review the appropriateness of the revised IEP. The hearing officer granted petitioner's request, and heard an additional day of testimony on October 31, 1989. On November 20, 1989 the hearing officer found that the CSE's revised IEP (dated October 10, 1989) was appropriate and consistent with her September 28, 1989 decision.

Following a number of procedural irregularities, petitioner commenced this appeal in December 1989. The petition does not address the hearing officer's second decision. Respondent's answer, however, does address the November 20, 1989 decision. Because the two decisions are so closely related, and because respondent has had full opportunity to be heard on the second decision, I deem this an appeal from both decisions.

In January 1990, petitioner commenced litigation against respondent in Federal court. Although the details of that litigation are not before me, it appears that petitioner sought in court the same relief she seeks in this appeal. Furthermore, correspondence from petitioner's attorney indicates that the parties entered into a settlement agreement in February 1990, resolving their issues regarding the placement of petitioner's son for the 1989-90 school year. Nonetheless, petitioner asked me to hold this appeal in abeyance, pending final execution of the settlement agreement. Accordingly, this appeal has been pending since October 1990. In the meantime, the State Review Officer has decided a second appeal, involving the student's placement for the 1990-91 school year (Decision of the State Review Officer No. 90-18, dated December 6, 1990).

On April 3, 1992, my Office of Counsel wrote to petitioner, reminding her that this appeal had been held in abeyance, at her request, since October 1990. At that time, the Office of Counsel advised petitioner that if she did not wish to withdraw her petition, a decision would be rendered. Petitioner responded by letter dated April 13, 1992, asking that the appeal continue to be held in abeyance. Considering the amount of time that has elapsed since the petition was filed, and the fact that petitioner has elected not to withdraw her appeal, further delay in issuing a decision is unwarranted (34 CFR 300.512[c]; see, Matter of a Handicapped Child, 21 Ed Dept Rep 20, 22).

The Commissioner of Education will only decide matters in actual controversy and will not render a decision upon facts which no longer exist or which subsequent events have laid to rest (Application of a Child with a Handicapping Condition, 28 Ed Dept Rep 105, 106; see, Application of a Child with a Handicapping Condition, 28 Ed Dept Rep 278; Appeal of a Child with a Handicapping Condition, 28 Ed Dept Rep 169). Petitioner herein seeks review of decisions regarding the CSE's placement recommendations for the 1989-90 school year, which has long since concluded. (Although petitioner's memorandum of law alludes vaguely to the issue of reimbursement, the petition does not ask for any relief other than reversal of the hearing officer's decision [8 NYCRR 279.1, 275.10]). It is therefore unnecessary for me to decide the substantive issues presented in this matter, since I find the appeal to be moot (Application of a Child with a Handicapping Condition, 28 Ed Dept Rep 105, 106, supra).