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Decision No. 14,221

Appeal of A STUDENT WITH A DISABILITY from action of the Board of Education of the Smithtown Central School District relating to evaluation and placement.

Decision No. 14,221

(October 12, 1999)

Leon & Deffet, Esqs., attorneys for petitioner, Julie Berler-Khalouian, Esq., of counsel

Peter G. Albert, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals from the alleged failure of the Board of Education of the Smithtown Central School District ("respondent") to develop an individualized educational plan ("IEP") for him. The appeal must be dismissed.

Petitioner is a student with a disability identified in April 1998 by respondent's committee on special education ("CSE") as emotionally disturbed. Although the CSE determined petitioner was a student with a disability, it did not recommend a placement at that time, indicating that further evaluations were necessary prior to doing so. Petitioner requested an impartial hearing pursuant to Education Law "4404 which resulted in the parties entering into a settlement agreement whereby the CSE was to convene for the purpose of developing an IEP. Respondent's CSE met on August 17, 1998, pursuant to the settlement agreement. During that meeting, the CSE again determined that it required a comprehensive psychiatric evaluation to enable it to recommend an appropriate educational placement for petitioner. However, petitioner's parents refused to consent to such evaluation, and respondent initiated an impartial hearing to obtain their consent. Simultaneously, petitioner initiated this appeal seeking, in part, an interim order directing respondent to place petitioner in the district's regular education program pending further administrative proceedings. Because the issue of pendency was not properly before me, and an impartial hearing was scheduled at which the pendency issue must be addressed (8 NYCRR 276.1[c]), I declined to issue an interim order.

Neither party submitted information to me regarding the outcome of the impartial hearing. However, a party aggrieved by the decision of an impartial hearing officer must seek review by the State Review Officer, not the Commissioner of Education (Education Law "4404; 8 NYCRR 276.1[c]). In any event, respondent's attorney now submits an affidavit indicating that petitioner, with his parents permission, has withdrawn from school in respondent's district and does not intend to return in the future.

The Commissioner of Education will decide only matters in actual controversy and will not render a decision upon a state of facts which no longer exist or a controversy which subsequent events have laid to rest (Appeal of June D., 38 Ed Dept Rep 596, Decision No. 14,101; Appeal of Kainz, 38 id. 339, Decision No. 14,049). In view of the fact that petitioner no longer attends school in respondent's district, the matter is moot.