Decision No. 12,803

(September 15, 1992)

Raymond G. Kruse, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner seeks to reopen my decision in Application of a Child with a Handicapping Condition (31 Ed Dept Rep 212, Decision No 12623, dated December 30, 1991). In that decision, I dismissed the appeal for lack of subject matter jurisdiction under Education Law '310 and failure to state a claim upon which relief may be granted. This application must similarly be dismissed.

An application to reopen must present new, material evidence not available at the time of the original appeal, or show that the prior decision was rendered under a misapprehension of fact (8 NYCRR 276.8[a]; Application of a Child with a Handicapping Condition, 31 Ed Dept Rep 370; Appeal of Steenrod, 28 id. 316). Petitioner offers as "new" evidence an October 12, 1990 determination of an impartial hearing officer which remanded a dispute concerning the identification of petitioner's son as a child with a handicapping condition to respondent's Committee on Special Education (CSE) for evaluation after the parents had agreed to submit their child to a physical examination. The hearing officer advised petitioner of her right to seek review of his decision by the State Review Officer pursuant to Education Law '4404. Instead, petitioner subsequently commenced this appeal under Education Law '310. The October 12, 1990 decision of the impartial hearing officer clearly was available to, or discoverable by, petitioner at the time this appeal was commenced. Accordingly, such decision does not constitute new evidence justifying reopening under the standard set forth in '276.8 (Application of Goldstein, 29 Ed Dept Rep 329).

Petitioner has further failed to demonstrate that my prior decision was rendered under a misapprehension of a material fact. In such decision, I correctly noted that the petition did not involve an appeal from a final determination of an impartial hearing officer pursuant to Education Law '4404. I found that any procedural issues concerning the development of an individualized education program for petitioner's son were for an impartial hearing officer to address in the first instance and were not properly the subject of an appeal to the Commissioner under Education Law '310. It is immaterial that the impartial hearing officer in a pending impartial hearing rendered an interlocutory decision remanding the matter to respondent's CSE to complete an evaluation of the child. If petitioner wishes to seek review of the impartial hearing officer's October 10, 1990 decision, her remedy is to appeal to the State Review Officer under Education Law '4404. The petition in this appeal did not seek such review, and petitioner cannot do so now by applying to reopen. Such an application is not the proper vehicle for amending a petition to raise new claims or seek additional relief. Since the original petition did not seek review of the determination of an impartial hearing officer, 8 NYCRR 276.10 has no application and I have no basis for referral of such a claim to the State Review Officer.

THE APPLICATION IS DENIED.

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