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Decision No. 14,463

Appeal of a STUDENT WITH A DISABILITY, by his parent, for review of a decision of a State Review Officer regarding the provision of special education services.

Decision No. 14,463

(September 12, 2000)

MILLS, Commissioner.--Petitioner appeals the decision of the State Review Officer ("SRO") issued March 22, 2000, sustaining her appeal on behalf of her son and directing the Committee on Special Education ("CSE") of the Board of Education of the City School District of the City of New York ("Board") to fully evaluate the child within 30 days. The appeal must be dismissed.

Petitioner is the parent of a child identified by the CSE as a student with a disability. Petitioner requested an impartial hearing to challenge the CSE’s October 15, 1998 recommendation that her son be classified as speech impaired and placed in an integrated first grade/MIS-IV class with a 10:1+1 child to adult ratio. At the impartial hearing on November 5, 1998, petitioner indicated to the hearing officer that she challenged her son’s recommended classification as speech impaired, but that she did not object to him receiving speech/language therapy, provided that he remained in the regular educational program. The CSE representative presented evidence supporting both the recommended classification and special class placement. In his decision issued on December 22, 1998, the hearing officer found that both the classification of speech impaired and the first grade placement recommended by the CSE was appropriate.

Petitioner attempted to appeal the hearing decision to the SRO in January 1999 by serving her appeal papers on the Board but failed to provide the State Education Department with a copy. The Office of State Review learned of the appeal from a representative of the school district who had called to inquire about the status of the appeal. The Office of State Review obtained a copy of the petition from the Board and sustained petitioner’s appeal on March 22, 2000, ordering the hearing decision annulled. The SRO also ordered the CSE to evaluate petitioner’s son within 30 days.

Petitioner challenges the SRO’s impartiality based on correspondence from the Office of State Review to the Board’s counsel and the CSE Chairperson for Community School District 25 regarding the Board’s submission of an answer to petitioner’s appeal. Petitioner also challenges the SRO’s authority to order the CSE to evaluate her son without her consent.

It is settled law that an appeal to the Commissioner of Education pursuant to section 310 may not be brought to review a determination of the State Education Department (Appeal of Regent, et al., 27 Ed Dept Rep 398, Decision No. 11,988; Matter of Bd. of Educ. of City School Dist. of City of Rome, 23 id. 382, Decision No. 11,253, affd. subnom.; Matter of Board of Educ. v. Ambach, 118 AD2d 932; Matter of Bd. of Educ. of City School Dist. of City of New York, 19 id. 1, Decision No. 9998). To the extent that petitioner seeks review of the SRO’s decision issued March 22, 2000, the appeal must be dismissed. Education Law "4404(3) provides that a final determination of the SRO may be reviewed in a proceeding brought in Supreme Court pursuant to Article 78 of the Civil Practice Law and Rules.

Pursuant to Education Law "4404(2), practice and procedure in appeals to the SRO is governed by Part 279 of the Regulations of the Commissioner of Education. The decision of the SRO is final, unless an aggrieved party seeks judicial review (8 NYCRR "279.10). To the extent petitioner seeks a reopening of the SRO’s March 22, 2000 decision, Part 279 makes no provision for reopening of a decision of the SRO, and the appeal must, therefore, be dismissed.