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Decision No. 13,756

Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Wappingers Central School District regarding independent evaluations.

Decision No. 13,756

(April 4, 1997)

Michael K. Lambert, Esq., attorney for respondent

MILLS, Commissioner-Petitioner requests an order directing respondent Wappingers Central School District ("district") to pay for independent speech/language and neuropsychological evaluations of her son at public expense pursuant to 8 NYCRR '200.5(a)(1)(vi)(a), and for other relief. The appeal must be dismissed.

Petitioner's son is 20 years old and classified by the district's Committee on Special Education (CSE) as other health impaired. It appears that the student has been the subject of five appeals to the State Review Officer (Application of the Board of Education of the Wappingers CSD, Appeal No. 91-35; Application of a Child with a Handicapping Condition, Appeal No. 92-19; Application of a Child with a Handicapping Condition, Appeal No. 92-32; Application of a Child with a Disability, Appeal No. 94-40; and Application of a Child with a Disability, Appeal No. 96-43). The facts of this appeal are set out more fully in the State Review Officer's decision in Appeal No. 96-43.

On March 2, 1995, petitioner requested an impartial hearing with regard to respondent's alleged refusal to provide her son with appropriate specialized equipment to support his educational program. Paul M. Rosen, Esq., was appointed by the district to serve as the hearing officer. On June 25, 1995, petitioner made a second request for an impartial hearing because the district had allegedly denied her son a free appropriate public education in violation of Section 504 of the Rehabilitation Act of 1973 (20 USC '794). It appears that Mr. Rosen was also appointed as hearing officer in that matter.

At a CSE meeting held on February 22, 1996, petitioner raised objections to the speech/language evaluation and neuropsychological evaluations being used by the Committee, and requested independent evaluations of her son at public expense. On February 23, 1996, the CSE rejected that request; on February 26 the district initiated an impartial hearing pursuant to 8 NYCRR '200.5(a)(1)(vi)(a) and appointed Carl L. Wanderman, Esq., as hearing officer.

Finally, it appears that a fourth hearing was initiated by petitioner on March 20, 1996, but the nature of that hearing is unclear.

After a series of letters and numerous postponements, Mr. Wanderman scheduled the hearing assigned to him for April 12, 1996; Mr. Rosen scheduled hearings in the three matters assigned to him for April 19, 1996.

On April 12, 1996, Mr. Wanderman commenced his hearing with neither petitioner, her son, nor their attorney present. However, the district's attorney was present, as was Mr. Rosen. At this time Mr. Wanderman first learned of the fourth requested hearing. After attempting to reach petitioner's attorney by telephone, Mr. Wanderman ruled that the matter pending before him, which is at issue here, should be referred to Mr. Rosen, and consolidated with the other matters already pending before Mr. Rosen. Mr. Rosen agreed. At the direction of Mr. Wanderman, the district's attorney notified petitioner's attorney of the determination, and indicated that the consolidated hearings would commence before Mr. Rosen on April 19.

After a further series of letters and postponements, the consolidated hearings were scheduled for May 14, 1996. On that day, neither petitioner, her son, nor their attorney appeared before Mr. Rosen; the district's attorney was present. Mr. Rosen stated on the record that he had not received any communication from petitioner, her son, or her attorney, but learned at the hearing that petitioner had had a letter hand-delivered to the school district stating her inability to be present. At that point, Mr. Rosen determined that the three requests for hearings initiated by petitioner should be deemed abandoned, and dismissed them. With respect to the hearing initiated by the school district, which is at issue here, the district's attorney indicated that, since the hearing was initiated on February 26, petitioner's son had met the graduation requirements of the district, and had been so advised. The district's attorney further stated that petitioner's son had been offered certain transition services, which had been declined. Based on that statement, the district withdrew its request for an impartial hearing with respect to the independent evaluations requested by petitioner.

That same day, Mr. Rosen sent letters to petitioner, her son, and their attorney indicating that he had dismissed her three requests for hearings as abandoned. He went on to say: "I have, however, retained jurisdiction over all issues should either a court of competent jurisdiction or the Commissioner of Education of New York determine that these matters should proceed." He further advised that the district had withdrawn its hearing request.

Thereafter petitioner appealed to the State Review Officer with respect to Mr. Wanderman's April 12 determination to transfer the district-initiated hearing to Mr. Rosen, and to consolidate it with the other pending matters. She also appealed Mr. Rosen's determination to dismiss the three hearings she had initiated as abandoned. That appeal was dismissed by the State Review Officer in Appeal No. 96-43, dated September 27, 1996.

The State Review Officer's decision pointed out that a parent may not prevent a hearing from being held by the simple expedient of not appearing at the hearing, or failing to make a bona fide request for an adjournment of the hearing (Matter of a Child Suspected of Having a Handicapping Condition, 22 Ed Dept Rep 412; Matter of a Handicapped Child, 23 id. 423; Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-5; Application of a Child with a Disability, Appeal No. 95-73). She further noted that a parent has an obligation to cooperate reasonably with the local school district, and to refrain from attempting to thwart prescribed procedures (Tucker v. Bayshore Union Free School District, 873 F. 2d 563 [2d. Cir., 1989]). She further stated: "I cannot condone petitioner's unilateral attempt to determine if, and when, hearings will be conducted, while insisting that the school district continue to provide services under the so-called pendency provisions of Federal and State law (20 USC 1415[e][3]; Section 4404[4] of the Education Law). Although I find that there is no basis for disturbing Mr. Rosen's decision, I note that petitioner is not precluded from raising any claim she may have had in the proceeding which was pending before Mr. Rosen, in a new proceeding." (Emphasis added.)

In this appeal, petitioner now claims that, because the district withdrew its hearing request on May 14, 1996, the district has thereby waived any right to contest her demand for independent evaluations of her son at public expense, and asks that I order such a result. The district argues that, to the extent petitioner might have wished to contest its withdrawal of the hearing it initiated before Mr. Rosen, she should have done so in her appeal to the State Review Officer. In the alternative, the district argues that the State Review Officer's decision reviewed all aspects of Mr. Rosen's decision, and found no basis for disturbing it. The district raises questions of my jurisdiction to entertain this appeal, claims that petitioner has failed to make a written request for evaluations as required by its regulations, and argues that another impartial hearing is presently pending with respect to this same student before Mr. Rosen, including the issues identified in this appeal. Respondent further argues that this appeal is an attempt to bypass the impartial hearing procedures established by law, and that the matter is moot because petitioner's son has now met graduation requirements.

I find that this matter is not properly before me. It appears that the dispute with respect to independent evaluations at public expense may not have been fully resolved before Mr. Rosen because the district did not force the issue by putting in its proof at the May 14, 1996, hearing in the absence of petitioner, her son, and her attorney, although it could have done so.

Under these circumstances, I direct that any issue with respect to petitioner's request for independent evaluations of her son at public expense be remanded to Paul M. Rosen, Esq., for resolution.

With respect to petitioner's request that the district continue to provide her son with educational services even though it claims that he has already met its graduation requirements, that matter is also referred to Mr. Rosen pursuant to 8 NYCRR '200.4(c)(2) and '200.5(a)(1)(ix).

I have considered the parties' remaining claims and find them without merit.



THE MATTER IS REMANDED to Impartial Hearing Officer Paul M. Rosen, Esq., for a determination consistent with this decision.