Decision No. 12,773

(August 5, 1992)

Anderson, Banks, Curran & Donoghue, Esqs., attorneys for

respondent, James P. Drohan, Esq., of counsel

SOBOL, Commissioner.--Petitioners appeal from respondent's refusal to schedule an impartial hearing, challenging its decision to change their daughter's program. The appeal must be dismissed.

Petitioners' daughter is an autistic child with extraordinary sensitivity to sensory stimuli, particularly to sound. She also has a seizure disorder apparently triggered by her hypersensitivity. On June 14, 1984, the Committee on Special Education of the Ellenville Central School District ("CSE") classified petitioners' daughter autistic and recommended a full day special education program with various related services. The board of education for the district ("respondent") rejected the CSE's recommendation and the parents requested an impartial hearing. On November 13, 1984, the hearing officer ruled in favor of the parents. The board appealed to the Commissioner. In the interim, the parties reached agreement, and entered into a "memorandum of understanding" ("MOU"), which modified the CSE's recommendation. In essence, the MOU provided for an in-school one-to-one special education program with related services, an aide and occupational therapy at home. While waiting for the district to implement the agreement, petitioners provided an in-home program for their daughter. For approximately the next eight months, the district reimbursed them for the cost of that program.

On September 6, 1985, in response to petitioners' request, respondent agreed to make structural changes to the room where their daughter was scheduled to receive the program agreed to in the MOU. Thereafter, the child attended school sporadically from November 18, 1985 to December 16, 1985. From December 16 until September 3, 1986, petitioners kept their daughter at home. When school began in September, she attended the in-school program for only the first four days.

The following year, the CSE recommended placement at The Children's Annex. Petitioners requested an impartial hearing on September 29, 1987 and the hearing officer upheld the decision of the CSE. Petitioners appealed to the Commissioner who overruled the decision of the hearing officer (Appeal of a Child with a Handicapping Condition, 28 Ed Dept Rep 323). In that appeal, the Commissioner was also asked to determine the child's current educational placement, which he found to be the last agreed upon placement in the public school (Appeal of a Child with a Handicapping Condition, id.).

Petitioners challenged the Commissioner's decision in federal court. On August 4, 1989, the court overruled the Commissioner and found the home instruction program, last offered at public expense in 1985, the child's current educational placement. Consequently, the court ordered respondent to provide this student with home-bound instruction. Consistent with its finding, the court ordered respondent to provide the child with a full-time special education teacher five days a week, an aide three hours per day, occupational therapy ten hours a week, and speech and language therapy one and one-half hours per day.

Respondent provided the in-home program to the child during the 1990-1991 school year. However, on June 20, 1991, at a CSE meeting, respondent indicated that it would arrange to have one special education teacher assigned to petitioners' daughter in the morning and another in the afternoon.

In July 1991, respondent reduced the time the special education teachers were assigned to the student. Petitioners requested an impartial hearing. The hearing officer ruled in favor of the parents and the State Review Officer sustained in part but dismissed petitioners' claim regarding a reduction in the number of hours of service (Decision of the State Review Officer, 92-22). According to petitioners, further reductions in services occurred in September 1991. It is undisputed that the aide's hours were reduced from three hours to one and one-half hours per day. Additionally, it is undisputed that the occupational therapy was reduced from ten to seven and one half hours per week. Petitioners requested a second impartial hearing on September 27, 1991 to challenge the change in program.

Instead of scheduling the hearing as petitioners requested, it appears that respondent filed a motion in federal court, on December 6, 1991, to determine whether the district was obligated to continue funding the court ordered "in-home" program when the parents allegedly refused to cooperate with program staff and the evaluation process. Respondent now explains that the change in services to petitioners' daughter since September 1991 was due primarily to the parents' refusal to allow school district employees into their home to provide services and evaluate their daughter. Respondent, therefore, sought an order from the court declaring the in-home program offered for the 1991-92 school year in compliance with the court's original order and relieving the district of its obligation to continue the program at public expense due to the parents' noncooperation. The motion is still pending.

Petitioners assert that respondent unilaterally changed their daughter's court ordered placement for the 1991-92 school year during the pendency of their appeal, when it reduced the amount of time certain services were provided to their daughter. Petitioner seeks an order declaring that respondent improperly changed their daughter's program and directing respondent to reinstate the program ordered by the court in 1989. Petitioners argue that they should not be required to exhaust administrative remedies since respondent failed to schedule a timely hearing in response to their September 27, 1991 request. Respondent asserts that since the issues raised by petitioners are pending in federal court, the petition should be dismissed.

Petitioners' claims regarding the student's current educational placement involve matters that go beyond deciding the child's "current educational placement", which are now pending before the federal court that issued the original order directing respondent to provide the specific in-home program, now at issue. Since this case also involves a factual dispute as to whether respondent's failure to implement the program is due to petitioners' noncooperation and, more fundamentally, whether respondent should be relieved of its obligations to provide the court ordered in-home program altogether, I decline to accept jurisdiction where the entire matter is pending in federal court. In addition, based on the nature of the factual dispute, it is clear that the federal court, which provides for a full evidentiary hearing as well as motion practice, is the proper forum for resolving all the issues presented in this appeal.

THE APPEAL IS DISMISSED.

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