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Decision No. 13,867

Appeal of a STUDENT WITH A DISABILITY by his parent, from an interim determination of an impartial hearing officer relating to the evaluation of the special education program operated by the Board of Education of the Ellenville Central School District.

Decision No. 13,867

(February 13, 1998)

Donoghue, Thomas, Auslander & Drohan, attorneys for respondent, James P. Drohan, Esq., of counsel

MILLS, Commissioner.--Petitioner seeks review from one part of a preliminary decision of an impartial hearing officer ("IHO") declining, on jurisdictional grounds, to issue a directive requiring the Board of Education of the Ellenville Central School District ("respondent") to evaluate its own special education program. Specifically, petitioner requests an order requiring the IHO to make a determination on the issue of whether respondent's committee on special education (CSE) is in compliance with the requirements of Education Law "4402(1)(b)(3)(e) regarding self-evaluation. The appeal must be dismissed.

Petitioner's daughter is classified by respondent's CSE as having a disability. An impartial hearing was commenced on January 6, 1997 to address a disagreement between petitioner and respondent's CSE regarding interalia, the need to conduct a re-evaluation of the child. Arguments were heard on that date and both sides filed letter briefs with the IHO on February 3, 1997. On February 16, 1997, the IHO issued a preliminary decision on four applications made by petitioner and set the matter down for a hearing on March 31, 1997 to address the substantive issues of classification and placement.

Petitioner commenced this appeal to review the fourth ruling of the IHO in his preliminary decision, namely that petitioner is not entitled to a directive requiring respondent to evaluate its own special education program. The IHO provided the following rationale for his ruling:

Directive to Self-Evaluate

As concerns the fourth issue, both Sec. 300.500 et seq., "Due Process Procedure for Parents and Children," of IDEA and Section 200.50, "Impartial Hearings", of the Commissioner's Regulation make it amply clear that I am entitled to rule only on complaints by a parent or legal guardian concerning the furnishing of special education to his or her child. See also, to this effect, the Commissioner of Education's decision in Buffalo Board of Education, No. 10,744 (1982), cited in and attached to the District's reply brief.

Nothing in the Petitioner's reply brief is convincing to the contrary.

This request must therefore be denied.

Petitioner contends that the IHO erred and does, in fact, have jurisdiction to decide whether respondent's CSE complied with the self-evaluation requirement in Education Law "4402(1)(b)(3)(e). Based upon that contention, petitioner demands that I order the IHO to exercise jurisdiction on the self-evaluation issue. Respondent contends that the appeal must be dismissed because petitioner failed to exhaust his administrative remedies, including bringing the hearing which he invoked under Education Law "4404 and the Individuals with Disabilities Education Act (IDEA) 20 USC 1415 to conclusion, and then bringing an appeal to the State Review Officer (SRO) if aggrieved by the final decision of the IHO. Respondent also contends that petitioner's recourse regarding the self-evaluation issue is a complaint to the State Education Department. Respondent further contends that petitioner is estopped from raising issues as to the IHO's jurisdiction, since he has invoked, and agreed to, the IHO's jurisdiction. Fourthly, respondent argues that the petitioner must be dismissed for failing to join the IHO as a party. Finally, respondent contends that the IHO lacks jurisdiction to order a self-evaluation as part of any request for relief regarding placement or classification of a student under the IDEA.

The provision of the Education Law to which petitioner refers is Section 4402(1)(b)(3)(e), requiring the CSE to:

Make, or have made, periodic evaluations of the adequacy of programs, services and facilities for children with handicapping conditions.

The decision cited by the IHO to support his finding that he lacked jurisdiction to order relief under Section 4402(1)(b)(3)(e) is Matter of a Handicapped Child, 21 Ed Dept Rep. 437, 441, in which the Commissioner reviewed a final determination of an IHO after a hearing and found that the IHO in that case:

… erred in allowing respondents to represent a class of students. There is nothing in federal or State law which indicates that a parent of a child thought to be handicapped may request and be granted the right to represent any other pupil or that a hearing officer is empowered to determine matters of an administrative nature, as the hearing officer did herein in ordering a review of an entire program and implementation of in-service training. The essence of the procedural requirements imposed upon school districts with respect to handicapped children requires that each child be considered as an individual. To the extent that the hearing officer's decision in an individual case reaches program-wide deficiencies, it is not necessary that class status be given. Any change which might have to be made on a program-wide basis can be expected to be made even on the appeal of a single child.

The petitioner has the burden of demonstrating a clear legal right to the relief requested and must establish the facts upon which he relies by clear and convincing evidence (Application of McDougald, 34 Ed Dept Rep 424). Petitioner demands an order reversing the IHO's preliminary decision and remanding the issue of self-evaluation compliance to the IHO to decide. This would require a finding that the IHO erred in his preliminary decision on that issue. Whether the IHO erred in basing his decision to deny the relief requested on briefs alone, without hearing testimony on the issue of how the self-evaluation relates to petitioner's child, depends upon the legal arguments and uncontested facts before him. Because the record before me does not contain the briefs and exhibits before the hearing officer, and because petitioner commenced this appeal prior to testimony being taken at the impartial hearing, there is insufficient evidence for me to conclude that the IHO erred. Moreover, the transcript (pp 28-29) of the parties' January 6, 1997 appearance, which is part of the record before me, supports the IHO's preliminary decision, as illustrated by the following exchange:

Petitioner: I'm trying to recall whether this got onto the record or not, was the issue of the district's evaluation of its own educational program. That to me is as important as …

IHO: Program for [petitioner's child] you are talking about. District's program for your daughter, is that what you are talking about?

Respondent's Attorney: No, it's not.

Petitioner: Programs in general.

IHO: Is that what you want?

Petitioner: Yes

IHO: Do I have the right to do that?

Petitioner: Yes

Respondent's Attorney: Well, we'll agree to brief that issue, Mr. Hearing Officer. Our take on that is different. We'll agree that's an issue that [petitioner] wants you to decide; and again, that's a pure legal issue, I think.

IHO: You want the district to evaluate itself?

Respondent's Attorney: Its programs, its programs for special education.

Petitioner: Right…

Petitioner's statements during this exchange make no reference to a possible connection between the CSE's obligation to conduct a self-evaluation and any program or other issue relating to his child, the subject of the impartial hearing. Without at least some allegation of a nexus, the IHO would be within his authority to limit the scope of the hearing. Therefore, petitioner failed to meet his burden and the appeal must be dismissed.

Had petitioner exhausted the administrative process by completing the hearing, making a complete record, and reserving an objection to the IHO's ruling, the matter could be reviewed thoroughly by the SRO as envisioned by Education Law "4404. Although not controlling in this case because the petition predated its January 1, 1998 effective date, a recent amendment to 8 NYCRR "276.10 no longer permits an appeal to the Commissioner from an IHO's ruling, decision or refusal to decide an issue prior to or during a hearing. The parties are informed of this change for future reference, as well as the option of bringing a complaint to the State Education Department's Office of Special Education Policy and Quality Assurance for investigation of a systemic compliance issue not directly related to a particular child's program (Appeal of Hyde Park, 30 Ed Dept Rep 211).