Decision No. 12,751

(July 17, 1992)

Raymond G. Kruse, P.C., attorney for respondent, Raymond G. Kruse, Esq., of counsel

SOBOL, Commissioner.--Petitioner, a child with a handicapping condition, seeks an opinion regarding the time in which a local committee on special education (CSE) must meet after receiving a referral to evaluate a child suspected of having a handicapping condition. The appeal must be dismissed.

Petitioner's mother referred him to respondent's CSE for evaluation on June 27, 1990. On July 2, she gave the district written consent to evaluate her son. Petitioner complains that, although the CSE conducted several evaluations, it failed to meet to make a recommendation within 40 days from the date of referral as required by 8 NYCRR 200.4(c). Respondent indicates that petitioner's parents unilaterally cancelled the first CSE meeting scheduled for August 16, 1990 and left during the rescheduled meeting. In addition, the school district apparently had to resort to an impartial hearing to enable it to conduct its own physical examination of petitioner. Petitioner does not refute those allegations. The record indicates that the CSE subsequently classified petitioner as having a handicapping condition. Petitioner now requests an opinion generally regarding the timing of the CSE meeting. The appeal must be dismissed.

Initially, I note that petitioner is under the age of 18. Because a person under the age of 18 is not legally competent to maintain a proceeding pursuant to Education Law '310, the appeal is dismissed.

In addition, because the CSE met and classified petitioner as having a handicapping condition subsequent to the filing of this appeal, the matter is moot. To the extent that petitioner seeks an advisory opinion regarding respondent's actions, I will not issue purely advisory opinions in appeals brought pursuant to Education Law '310 (Application of a Child with a Handicapping Condition, 30 Ed Dept Rep 262; Application of a Child with a Handicapping Condition, 30 id. 53; Applications of a Child with a Handicapping Condition, 29 id. 486).

Finally, for the benefit of the parties, I note that the record indicates that the meeting initially scheduled for August 16 was within the 40 day time period from the date of petitioner's referral. The delay in rescheduling a CSE meeting for this pupil was attributable to his parents' actions and the time spent in an impartial hearing to enable the district to obtain a physical evaluation of this pupil. Since a district may not be required to make its recommendation without an opportunity to conduct its own evaluation, the record provides no basis for concluding that respondent acted improperly or unreasonably in this instance.

THE APPEAL IS DISMISSED.

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