The State Education Department
State Review Officer

No. 96-2

 

 

Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Canastota Central School District

 

Appearances:
Hogan and Sarzynski, Esqs., attorneys for respondent, Edward J. Sarzynski, Esq., of counsel

 

DECISION

        Petitioner appeals from the decision of an impartial hearing officer which dismissed petitioner's claim that respondent had failed to provide petitioner's child with the amount of special educational services specified in the child's individualized education program (IEP). The hearing officer also dismissed petitioner's claim that respondent's selection of the hearing officer had been tainted by the actions of the chairperson of respondent's committee on special education (CSE). The appeal must be dismissed.

        Petitioner's extensive involvement with the CSE has been detailed in prior decisions of the State Review Officer (see e.g., Application of a Child with a Disability, Appeal No. 95-10), and will not be repeated in this decision. His son, who is 19 years old, sustained multiple trauma, including a severe head injury, in an automobile accident in March, 1991. Except for two relatively brief stays in rehabilitation facilities, the child has been hospitalized since his accident. In 1993, the child's physician reported that the child was unable to perform any meaningful movements or activities on command. The child's classification as a child with a traumatic brain injury is not in dispute in this proceeding.

        In 1992, the CSE recommended that the child receive a total of two hours per day of services, including special education, speech/language therapy, physical therapy, and occupational therapy, except when the provision of those services would interfere with the child's medical care. Petitioner subsequently challenged respondent's alleged failure to provide the child with each of the services specified in the child's IEP during the 1992-93 school year. His appeal from a hearing officer's decision which had directed the CSE to prepare a new IEP for the 1993-94 school year was sustained in part, and the CSE was ordered to review the child's educational program (Application of a Child with a Disability, Appeal No. 93-34).

        In September, 1993, the CSE recommended that the child receive a neuropsychological evaluation, and that pending the completion of that evaluation, the child receive two hours per day of special education, plus 30 minutes each of speech/language therapy, physical therapy, and occupational therapy, five times per week. Respondent approved the CSE's recommendation. As a result of the numerous due process proceedings which petitioner has instituted since then, respondent has been required to maintain the level of services which the CSE recommended in September, 1993 (see 20 USC 1415 [e][3][A] and Section 4404 [4] of the Education Law).

        This proceeding began with four letters, each dated July 9, 1995, which petitioner addressed to respondent's CSE chairperson. In each letter, petitioner asserted that the Canastota Schools had failed to provide the child with services, as specified in the child's IEP, on particular dates. Petitioner identified the dates upon which one or more unspecified services were not provided by respondent as March 28, 30, 31, April 3, 4, 6, 11, 12, 13, 14, 24, 25, and 27, 1995. He requested that an impartial hearing be held immediately. Petitioner also indicated that if a hearing officer's decision was not rendered within 45 days, he would file an appeal with the Commissioner of Education seeking an order barring the hearing officer from considering any evidence or testimony submitted on behalf of the board of education beyond the 45-day time limit, compensatory education for his son, and the removal from office of the members of the Board of Education. Petitioner also requested that he be given access to his child's educational records not less than 10 days after the appointment of a hearing officer and at least 10 days prior to the commencement of a hearing. He indicated that he would appeal to the Commissioner of Education, upon respondent's failure to comply with his request.

        Section 4404 (1) of the Education Law provides that individuals who are appointed by a board of education to serve as hearing officers shall be selected from a list of available hearing officers, on a rotational basis, as prescribed by the Regulations of the Commissioner of Education. 8 NYCRR 200.2 (e) requires each board of education to maintain a list of hearing officers on a rotational basis, with the names of those hearing officers who have conducted hearings to be placed on the bottom of the list, in the order of the date of their appointment. The record reveals that at the time when the CSE chairperson received petitioner's hearing requests there were eight hearing officers whose names appeared on respondent's list of hearing officers.

        Respondent has designated its elementary school principal as the employee who is responsible for contacting the individuals on respondent's list of hearing officers to ascertain their willingness to serve as the hearing officer, after a request for a hearing has been received. At the hearing in this proceeding, the elementary school principal testified that she ultimately contacted each of the individuals on respondent's list, and that six of the eight individuals were unavailable or unwilling to serve as the hearing officer in this proceeding. The elementary school principal testified that some of these individuals declined to serve because of the $300 per day limitation which the State of New York imposed on hearing officer compensation (see 8 NYCRR 200.21). The two individuals who were available to serve as the hearing officer were reportedly affiliated with the Board of Cooperative Educational Services of Onondaga, Cortland and Madison Counties (BOCES). Respondent has contracted with the BOCES for the latter to provide the child with some of his special education services. In any event, these individuals would be ineligible to serve as a hearing officer for respondent, if respondent is a component school district of that BOCES (8 NYCRR 200.1 [s][1]).

        The elementary school principal further testified that she then contacted other individuals who were on the State Education Department's list of individuals who had completed the required hearing officer training to ascertain whether those individuals wished to be added to respondent's hearing officer list. Ms. Sally Romano is respondent's Director of Pupil Personnel Services, and its CSE chairperson. Ms. Romano testified that the elementary school principal's secretary also contacted prospective hearing officers. One of the individuals who was contacted by the principal's secretary was Dr. Susan Gray. Dr. Gray agreed to become a hearing officer for respondent, and was subsequently appointed to serve as the hearing officer in this proceeding. The record reveals that on or about July 31, 1995, the elementary school principal spoke to the hearing officer, who suggested some tentative hearing dates. In a memorandum to respondent's president, which was dated July 31, 1995, Ms. Romano described the school district's attempts to obtain the services of a hearing officer, and recommended that Dr. Gray be added to respondent's list of hearing officers at respondent's next scheduled meeting on August 8, 1995. Ms. Romano further recommended that respondent's president appoint Dr. Gray to act as the hearing officer in this proceeding, subject to respondent's ratification at its next meeting, in accordance with respondent's policy (see Application of a Child with a Disability, Appeal No. 95-44). Instead, Dr. Gray was simultaneously added to respondent's list of hearing officers and appointed to be the hearing officer in this proceeding, on August 8, 1995.

        The hearing in this proceeding began on September 8, 1995. The hearing officer disclosed that she was the Superintendent of Schools of the City School District of the City of Hornell. She responded to various questions by petitioner about her prior service as a hearing officer, and possible relationship with respondent's staff and the BOCES. Petitioner indicated that he was concerned about a possible irregularity in the appointment of Dr. Gray as the hearing officer, but he declined to specify the basis for his concern. Petitioner moved to have a separate hearing for each of his four hearing requests. The hearing officer denied petitioner's motion on the ground that each of petitioner's hearing requests involved similar issues. She also denied a motion by petitioner to preclude respondent from introducing any evidence at the hearing because the hearing had not been completed, and a decision rendered, within 45 days after respondent had received petitioner's hearing requests. The hearing officer also denied petitioner's motion that she recuse herself from serving as the hearing officer.

        On September 15, 1995, petitioner filed an additional hearing request involving respondent's alleged failure to provide services to the child on May 23 and 26, 1995. When the hearing in this proceeding resumed on September 18, 1995, respondent's attorney asked the hearing officer to accept jurisdiction over petitioner's claim of the alleged withholding of services on May 23 and 26, 1995. The hearing officer agreed to do so because of the similarity of issues in petitioner's fifth hearing request with those in the prior four hearing requests.

        At the hearing, the child's special education teacher acknowledged that she had not provided any service to the child on April 11, but had provided him with the requisite two hours of service on April 13, which was a school holiday. She further testified that she had not provided services on April 25, but had provided additional services on April 24, 26 and 27, 1995 to make up for the absence of services on April 25. The child's speech/language therapist testified that she had been unable to serve the child on April 4, 1995, but had made up the services on Saturday, April 8, 1995. She further testified that services had not been provided on April 12, 1995, but were made up on the next day, which was a school holiday. The child's occupational therapist testified that she had not provided services to the child on March 28, 30 and 31, 1995, but had made up those services in advance by providing alternative or extra services on March 15, 19, 24 and 26, 1995. The occupational therapist also testified that she had not provided services on April 11, 24 and 27, 1995, but had provided services on Sunday, April 9, 1995 to make up for her absence on April 11, 1995, and that a substitute had provided services on April 27, 1995. With regard to the missed services on April 24, 1995, the occupational therapist asserted that she had provided the child with an extra day of service in February, 1995. Ms. Romano testified about respondent's failure to provide services on May 23 and 26, 1995, which was the subject of petitioner's fifth request for a hearing. She testified that the child's special education teacher provided 90 minutes of service on May 23, but had provided an extra 30 minutes of service on May 22, 1995. She also testified that no services were provided on May 26, 1995 because it was a school vacation day. Although petitioner challenged the authority of respondent to allow the child's service providers to make up for missed services, he did not dispute the service providers' testimony that extra or additional services had been provided on other days.

        In her decision, which was dated November 9, 1995, Dr. Gray found that there was no evidence of an irregularity in her appointment by respondent to serve as the hearing officer. She noted that her name appeared on the State Education Department's list of qualified hearing officers, and that respondent had adhered to its policy with regard to the selection of hearing officers. She also noted that petitioner had declined to state why he believed that appropriate procedures had not been followed in the hearing officer's appointment. With regard to petitioner's claim that respondent had failed to provide the child with each of the services specified in his IEP, the hearing officer found that all of the services required to be provided according to the school calendar were provided, although not necessarily on a Monday through Friday basis. She found that three of the fifteen days on which services were allegedly not provided were school vacation days, during which respondent was not obligated to provide services to the child. The hearing officer further found that the child had in fact received his IEP services on another three of the fifteen days. With respect to the other nine days on which services were not provided as scheduled, the hearing officer found, based on the testimony and records of the child's special education teacher and related service providers, that those services were either provided on Saturdays, Sundays, or school vacation days, or additional services were provided on the days when the boy was scheduled to receive services, to make up for the "missed" services. She also noted that respondent has implemented a system of having substitute service providers available to serve the child.

        Petitioner asks that the hearing officer's decision be set aside upon the grounds that the hearing officer's appointment was untimely, and was tainted by Ms. Romano's alleged involvement in the selection of the hearing officer. He contends that the hearing officer did not conduct the hearing in an impartial manner. Petitioner further contends that the hearing officer's decision should be annulled because it was not rendered within 45 days after respondent received his four requests for hearings. Petitioner has not explicitly challenged the hearing officer's findings that the child's service providers were not required to provide services to the child on three of the days in question, or that they did provide services on three other days in question. He also does not expressly challenge the hearing officer's findings that the services which were not provided on the remaining nine days were made up within a reasonable period of time. In any event, I find that the hearing officer's findings about the days upon which the child's services were to be provided pursuant to his IEP, and the make up of missed services within a reasonable period of time, are consistent with the terms of my decision in Application of a Child with a Disability, Appeal No. 95-54. That decision was rendered in a prior appeal which petitioner brought challenging the Canastota Central School District's alleged failure to comply with his son's IEP by not providing special education services on certain days (other than those which are the subject of this proceeding) during the 1994-95 school year.

        The Commissioner of Education and the State Review Officer have cautioned boards of education to avoid even the appearance of impropriety in the selection of hearing officers by not permitting school employees who will testify as witnesses or who were involved in the decision or action to be reviewed by a hearing officer to participate in the selection of the hearing officer (Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 195; Application of a Child with a Handicapping Condition, Appeal No. 92-25; Application of a Child with a Disability, Appeal No. 94-37). Ms. Romano's participation in the selection process has been the subject of two prior appeals (Application of a Child with a Disability, Appeal No. 95-44; Application of a Child with a Disability, Appeal No. 95-54). In both of those appeals, I found that Ms. Romano's involvement was limited to providing the name of a prospective hearing officer to be contacted by another employee, and reporting to respondent's president that a hearing officer was available to serve in that capacity. I also found that her participation did not afford a basis for annulling the hearing officer's decision, but recommended that respondent modify its policy to provide for no involvement of its Director of Pupil Personnel Services in the appointment of hearing officers. The record reveals that respondent has sought the assistance of a representative of the State Education Department to revise its policy. Although Ms. Romano apparently spoke to certain individuals about having their names added to respondent's rotational list of hearing officers, there is no evidence in the record that Ms. Romano had any discussion with Dr. Gray, the hearing officer in this proceeding. Petitioner's contention that the district clerk's ex parte written notification to Dr. Gray of her appointment by respondent as the hearing officer affords a basis for annulling the hearing officer's decision is without merit. Therefore, I find that there is no basis for annulling Dr. Gray's decision because of the manner in which she was appointed.

        I have also considered petitioner's contention that Dr. Gray's appointment was not made in a timely manner. Her appointment was made 28 days after respondent had received petitioner's four hearing requests. As petitioner points out, respondent was directed to ensure that its hearing officers were promptly appointed, in a prior proceeding (Application of a Child with a Disability, Appeal No. 93-47). However, I agree with the hearing officer's observation on page 263 of the transcript that respondent attempted to appoint a hearing officer as quickly as possible under the circumstances of this case.

        Petitioner contends that the hearing officer evidenced a lack of impartiality by the way in which she conducted the hearing. My review of the transcript reveals that there is no basis in fact for petitioner's contention. As I recently pointed out to petitioner in yet another proceeding, his disagreement with the conclusions which the hearing officer reached does not provide a basis for finding either actual or apparent hearing officer bias (Application of a Child with a Disability, Appeal No. 96-3). I find that the hearing officer afforded petitioner an ample opportunity to present his objection to the manner in which the hearing officer had been appointed. Although Dr. Gray denied petitioner's request for subpoenas to compel respondent's president and the school district clerk to testify at the hearing, she did so after requiring respondent to provide ample documentary evidence in the record to establish how and when she had been appointed as the hearing officer. Petitioner also asked to have the child's physical therapist subpoenaed, although he did not claim that she had failed to provide her services on the days in question. As petitioner points out, a hearing officer has an obligation to assist parents who are not represented by an attorney with their requests for subpoenas (Application of a Child with a Handicapping Condition, Appeal No. 92-8). However, a hearing officer also has the power to require a showing that the proposed witnesses would provide relevant testimony, and that their testimony would not be redundant (Application of a Child with a Handicapping Condition, Appeal No. 92-78). I find that petitioner did not demonstrate at the hearing, nor does he now show, that the testimony of respondent's president, the school district clerk, or the child's physical therapist would have provided any useful information.

        Over petitioner's objection, the hearing officer allowed the scope of the hearing to be widened to include the matters which petitioner raised in his September 15, 1995 hearing request. There is nothing in Federal or State law which precludes a hearing officer from consolidating the issues which have been raised by the parties into a single hearing (Application of a Child with a Disability, Appeal No. 95-51). The issues in petitioner's fifth request for a hearing were clearly similar to those in his prior four hearing requests. The documentary evidence which respondent introduced to support its position with regard to petitioner's fifth hearing request consisted of pages of the daily log which the child's service providers prepared. Ms. Romano testified that petitioner had been provided with copies on the daily log pages on a regular basis, since January, 1995. The consolidation of issues by the hearing officer did not delay the resolution of any issue by the hearing officer. I find that she acted well within her discretion in granting respondent's request to consolidate the issues.

        Petitioner contends that the hearing officer's decision should be annulled because it was not rendered within 45 days after respondent received petitioner's requests for hearings. Respondent received petitioner's hearing requests on July 11, 1995. It appointed the hearing officer on August 8, 1995. The hearing did not begin until September 8, 1995, which was the 59th day after respondent had received petitioner's hearing requests. At the conclusion of the hearing on September 18, 1995, both parties agreed to submit written argument to the hearing officer, after copies of the hearing transcript were received. The hearing officer granted petitioner's request that he have a period of three weeks after the receipt of the hearing transcript to submit his written argument. The hearing officer rendered her decision on November 9, 1995, which was the 131st day after the hearing.

        On or about September 1, 1995, petitioner instituted four appeals to the Commissioner of Education, in which he alleged his child's rights had been violated because the hearing officer had not rendered a decision. On November 28, 1995 petitioner's appeals were dismissed by the Commissioner of Education, who noted that the hearing officer had rendered her decision, and that: "Such filings are frivolous and mire respondent school district in unnecessary paperwork." (Appeal of a Student with a Disability, 35 Ed. Dept. Rep. , Decision No. 13521).

        Federal and State regulations require each Board of Education to ensure that a decision is made by a hearing officer within 45 days after the Board of Education has received a request for a hearing (34 CFR 300.512 [a]; 8 NYCRR 200.5 [c][11]). Federal regulation authorizes a hearing officer to grant specific extensions of time beyond the 45-day time limit at the request of either party (34 CFR 300.512 [c]). The record does not reveal that either party explicitly requested an extension of the time limit.

        The appointment of the hearing officer in this proceeding was delayed because of the exhaustion of respondent's list of hearing officers, and the corresponding need to find additional hearing officers. As noted above, there is no evidence in the record which is before me that respondent unnecessarily delayed in obtaining the services of a hearing officer. Hearings are to be conducted at times and places which are reasonably convenient to the parties (34 CFR 300.512 [d]). Shortly before her appointment, the hearing officer indicated that she could be available to conduct the hearing on various dates between August 8 and August 18, 1995. After she was appointed by respondent, the hearing officer reportedly contacted petitioner and respondent's attorney to schedule a date on which the hearing could begin. Both Ms. Romano and respondent's attorney were reportedly unavailable through August 18, 1995. Thereafter, the hearing was scheduled by the hearing officer to take place on September 8, 1995. Petitioner argues that respondent is not relieved of its obligation to comply with the 45-day time limit because of the unavailability of its attorney (Application of a Child with a Handicapping Condition, Appeal No. 91-38). However, I find that there is no evidence that the hearing could have been held on a prior, mutually convenient date prior to September 8, 1995. Respondent is well aware of its obligation to promptly appoint hearing officers, and to see that hearings are promptly conducted (Application of a Child with a Disability, Appeal No. 93-47; Application of a Child with a Disability, Appeal No. 95-44). Upon the record before me, I find that there is no basis for annulling the hearing officer's decision on the ground of its untimeliness.

        I have considered petitioner's other contentions, and I find that they are without merit.

 

 

        THE APPEAL IS DISMISSED.

 

 

Dated: Albany, New York __________________________
February 2, 1996 FRANK MUŅOZ