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Decision No. 14,167

Appeal of A STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Shoreham Wading River Central School District regarding special education services.

Decision No. 14,167

(July 22, 1999)

Rains & Pogrebin, P.C., attorneys for respondent, Sharon N. Berlin, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the teacher assignment for her son's special education class. The appeal must be dismissed.

Petitioner's son is eighteen years old and is classified as a student with a learning disability by the Committee on Special Education ("CSE") of the Board of Education of the Shoreham Wading River Central School District ("respondent"). Pursuant to his Individualized Educational Program (IEP), for the 1997-1998 school year, petitioner's son began receiving part of his instruction in a special education class. The 1998-1999 IEP for petitioner's son, developed at the CSE's June 9, 1998 meeting, continued his placement in the special education class. Sometime in June 1998, petitioner was informed by Susan Aiello, the teacher who taught her son in the 1997-1998 special education class that she had been reassigned and would not be teaching petitioner's son during 1998-1999.

On August 24, 1998, petitioner disagreed with her son's 1998-1999 IEP and requested an impartial hearing to discuss it. Petitioner asked that respondent provide her son with instruction from a special education teacher with a degree in reading and writing for the learning disabled. Upon receipt of petitioner's hearing request, respondent asked petitioner to specify the basis for her complaint and the relief sought. On September 3, 1998, respondent received petitioner's revised request for an impartial hearing stating her concern that her son "will not receive the proper education for his multiple learning disabilities." Petitioner's letter requested that Susan Aiello be reassigned to teach her son's special education class or in the alternative, that Ms. Aiello's replacement have the same training, experience and qualification. Petitioner commenced this appeal on September 18, 1998. Petitioner's request for an interim order staying the teaching reassignment of Susan Aiello, was denied on October 1, 1998. Susan Aiello resigned her teaching position in respondent's district effective December 31, 1998.

Respondent appointed an impartial hearing officer on September 15, 1998 and a hearing was held on October 14, 1998, February 24 and 25, 1999. The hearing decision, issued March 28, 1999, found interalia, that respondent is providing an appropriate education to petitioner's son and is not required to provide a teacher with certification in both special education and reading.

Respondent contends that the petition should be dismissed for failure to join Susan Aiello and other teachers affected by her reassignment as necessary parties to the appeal. Respondent also contends that the Commissioner is without jurisdiction to entertain the appeal because petitioner failed to exhaust her administrative remedies of an impartial hearing and appeal to the State Review Officer (SRO) under the Individuals with Disabilities Education Act and Education Law "4404. Respondent further contends that the petition must be dismissed because it fails to demand any relief other than a stay, which has already been denied.

The appeal must be dismissed because it is moot. The Commissioner of Education only decides matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of Jane D., 38 Ed Dept Rep 596, Decision No. 14,101; Appeal of McConnon, 37 id. 691, Decision No. 13,959; Appeal of Oyibo, 37 id. 356, Decision No. 13,878).

The only relief petitioner seeks is an interim order that was already denied. In addition, significant events have occurred subsequent to the commencement of this appeal. First, the teacher whose assignment petitioner challenges is no longer employed by respondent. In addition, the underlying dispute between the parties has been decided by an impartial hearing officer.

Accordingly, the appeal is moot and must be dismissed. In light of the foregoing disposition, I will not address the parties' remaining contentions.