The State Education Department
State Review Officer

No. 96-43

 

 

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 Wappingers Central School District

Appearances:
Michael K. Lambert, Esq., attorney for respondent

 

DECISION

        Petitioner appeals from the interim decisions of two impartial hearing officers to consolidate four hearings involving petitioner's son which were then pending before the hearing officers, into a single proceeding before one of the hearing officers. She also appeals from a determination by that hearing officer that petitioner had abandoned the proceeding by failing to appear at a subsequent hearing. The appeal must be dismissed.

        There are three procedural issues which must be addressed at the outset. First, respondent argues that the appeal must be dismissed because petitioner failed to serve it with a copy of a notice of intention to seek review in the form prescribed by 8 NYCRR 279.2 (a), within the prescribed time limit. I find that petitioner's notice of intention to seek review did not follow all of the prescribed language, e.g., the directive to file copies of a hearing transcript, exhibits and hearing officer's decision with the Office of Counsel of the State Education Department. However, respondent has complied with its obligation to file that material with the Office of Counsel. I recently rejected a similar request by a respondent to dismiss an appeal which petitioner had brought (Application of a Child with a Disability, Appeal No. 96-38). I similarly decline to dismiss this appeal.

        Respondent asks that I appoint a guardian ad litem (8 NYCRR 200.1 [p]) for petitioner's son. It argues that the child's interest cannot be adequately protected, without the appointment of a guardian ad litem because of petitioner's alleged attempts to delay the hearings in this proceeding. Respondent acknowledges that it made a similar request to the hearing officer, and that the hearing officer denied its request. Although I share respondent's concern about the length of time which this proceeding has taken, I am not persuaded that the appointment of a guardian ad litem would advance the interest of petitioner's son. The extent to which hearing adjournments are granted is a matter best left to the sound discretion of the hearing officer.

        Petitioner has submitted a response to respondent's answer, in which she re-argues many of the points raised in her petition. She has annexed additional documentary evidence to her response. Section 279.6 of the Regulations of the Commissioner of Education provides that a reply to the answer is permitted only when the respondent had raised procedural defenses, or submitted additional documentary evidence with its answer. Therefore, I will consider petitioner's response only to the extent that it responds to respondent's assertions about petitioner's notice of intention to seek review, and its assertion that a guardian ad litem should be appointed.

        The record before me is very fragmented, and contains virtually no information about the nature of the student's classification or placement. I note that the student was the subject of four prior appeals to the State Review Officer (Application of the Board of Education of the Wappingers Central School District, Appeal No. 91-35; Application of a Child with a Handicapping Condition, Appeal No. 92-19; Application of a Child with a Handicapping Condition, Appeal 92-32; and Application of a Child with a Disability, Appeal No. 94-40). The decisions in those appeals reveal that the child was classified as other health impaired in 1990. Although respondent's committee on special education (CSE) recommended in 1991 that the child be declassified, the State Review Officer found that respondent failed to demonstrate the appropriateness of the CSE's recommendation, and ordered the CSE to assess the child in all areas of his suspected disability. The child has apparently remained classified as other health impaired. He has reportedly received instruction from respondent in his home, since 1988.

        On March 2, 1995, petitioner requested that an impartial hearing be held with regard to respondent's alleged refusal to provide her son with appropriate specialized equipment to support his educational program. Paul M. Rosen, Esq., was appointed by respondent to serve as the hearing officer. The hearing began on April 11, 1995. The parties agreed to adjourn the hearing until May 23, 1995, to afford the CSE the opportunity to complete the student's triennial evaluation, and to review the results of the evaluation with petitioner. The hearing did not resume on May 23, 1995, because petitioner was reportedly too ill to participate. In a letter dated July 21, 1995, petitioner informed the hearing officer that she was physically able to resume the hearing, and asked him to contact her about re-scheduling the matter.

        On June 22, 1995, approximately one month before she indicated that she was well enough to resume the first hearing, petitioner filed a request with respondent for a second impartial hearing, because respondent had allegedly denied her son a free appropriate public education in violation of Section 504 of the Rehabilitation Act of 1973 (20 USC 794). Respondent acknowledges that it did not promptly respond to petitioner's request for a second hearing, but asserts that petitioner and respondent's then counsel were engaged in comprehensive settlement negotiations. The negotiations were reportedly unsuccessful. In any event, a hearing was apparently not scheduled for this matter. However, Mr. Rosen was reportedly appointed to be the hearing officer in that matter.

        On or about September 11, 1995, petitioner and her son commenced an action against respondent in the United States District Court for the Southern District of New York. In that action, they alleged that respondent had not complied with the requirements of the Individuals with Disabilities Education Act (20 USC 1400 et seq), and Section 504 of the Rehabilitation Act of 1973. The record does not reveal the outcome of the lawsuit.

        By letter dated September 12, 1995, Mr. Rosen, the hearing officer in the first hearing, scheduled the hearing to resume on October 6, 1995. However, petitioner informed the hearing officer, in a letter dated October 2, 1995, that the hearing should not resume because of the pendency of her law suit. She also alluded to the possibility that the hearing officer's impartiality had been tainted as a result of an alleged conversation with respondent's then counsel. By letter dated October 16, 1995, Mr. Rosen advised petitioner that the hearing would not be re-scheduled, until she requested that it be resumed.

        The third hearing which is involved in this proceeding was reportedly initiated by respondent, in response to petitioner's request for an independent evaluation of her son. Petitioner was reportedly dissatisfied with the CSE's triennial evaluation of her son. At a CSE meeting held on February 23, 1996, she requested that an independent speech evaluation be performed. Federal and State regulations provide that the parent of a child with a disability is entitled to obtain an independent educational evaluation at public expense, if he or she disagrees with the school district's evaluation. However, the parent's right to an independent evaluation is subject to the right of the school district to initiate a hearing to demonstrate the appropriateness of its evaluation. If a hearing officer finds that the school district's evaluation is appropriate, the parent may have an independent evaluation, but not at public expense (34 CFR 300.503; 8 NYCRR 200.5 [a][1][vi][a]).

        On February 26, 1996, respondent appointed Carl L. Wanderman, Esq., to conduct the third hearing in this proceeding. The hearing officer reportedly had difficulty establishing a hearing date which was mutually convenient for the parties. On or about March 4, 1996, petitioner's attorney, Ben M. Arai, Esq., reportedly telephoned respondent's attorney to advise him that a hearing which was to be held on March 5, 1996, with regard to another child of petitioner would have to be adjourned because petitioner's husband had allegedly suffered a heart attack. In a letter dated March 6, 1996, Mr. Arai asked Mr. Wanderman not to schedule a hearing with respect to either of petitioner's two sons because petitioner's husband was gravely ill. He acknowledged that respondent's attorney had requested that petitioner provide some written documentation that her husband had been hospitalized, and indicated that he would provide that information to the hearing officer and respondent's attorney. Respondent's attorney objected to the request for an indefinite extension of the two hearings.

        In a letter dated March 12, 1996, Hearing Officer Wanderman asked Mr. Arai to advise him when petitioner would be able to attend a hearing. In a letter to Mr. Wanderman, dated March 14, 1996, respondent's attorney alleged that on March 5, 1996, petitioner and her husband had traveled to the private school in Williston, Vermont, which their third son reportedly attends (Respondent has submitted a copy of a memorandum, dated March 14, 1996, from an administrator of the private school to one of respondent's administrators, in which the former confirmed that petitioner and her husband had met with the staff of the private school on March 5, 1996). Respondent's attorney asked the hearing officer to direct petitioner and her attorney to immediately inform the hearing officer and respondent's attorney of the dates when they would be available to conduct the hearing. On March 19, 1996, Mr. Wanderman advised Mr. Arai that the hearing would have to be held without petitioner, unless he received a response to his request for information about when petitioner could attend the hearing.

        On March 29, 1996, Mr. Rosen, the hearing officer in the first hearing, informed petitioner that he had unilaterally scheduled that hearing to resume on April 19, 1996. He indicated that he would deal with all the issues which petitioner wished to raise.

        In a letter dated April 3, 1996, and addressed to both Mr. Rosen and Mr. Wanderman, respondent's attorney noted that there were two hearings pending before Mr. Rosen and one hearing pending before Mr. Wanderman, with regard to petitioner's son. The attorney asserted that many of the issues in each hearing were identical, and he asked the two hearing officers to agree to consolidate the three hearings into a single hearing before either of the two hearing officers. On April 3, 1996, but before he had seen the letter of that date by respondent's attorney, Mr. Wanderman sent a letter to the attorneys for both parties advising them that he had scheduled the hearing to begin on April 12, 1996. He indicated that the hearing had been scheduled in accordance with his letter of March 19, 1996, i.e., that he would go forward with the hearing even without petitioner, unless petitioner's attorney advised him of when petitioner would be available. The following day, April 4, 1996, Mr. Wanderman sent a letter to Mr. Arai, in which he indicated that he would consider respondent's request to consolidate the three hearings on April 12, 1996. He urged Mr. Arai to attend the hearing on that day. A copy of Mr. Wanderman's letter was reportedly sent to petitioner.

        On April 12, 1996, respondent's attorney appeared before Mr. Wanderman. Neither petitioner nor her attorney appeared. Mr. Rosen was also present. At the hearing, respondent's attorney disclosed that there was yet another hearing pending before Mr. Rosen, as a result of a request for a hearing which petitioner made on March 20, 1996. Mr. Wanderman recessed the hearing briefly, in an attempt to telephone Mr. Arai, who was not available. When the hearing resumed, Mr. Wanderman ruled that the matter pending before him should be referred to Mr. Rosen, and consolidated with the other matters pending before Mr. Rosen. Mr. Rosen agreed with that disposition. At the direction of Mr. Wanderman, respondent's attorney notified petitioner's attorney of Mr. Wanderman's decision, and indicated that the consolidated hearing would resume before Mr. Rosen on April 19, 1996. In a letter dated April 12, 1996, Mr. Rosen also advised petitioner that he would consider all of her pending hearing claims at the hearing to be held on April 19, 1996.

        On or about April 18, 1996, Mr. Rosen received a letter from petitioner, who requested that the hearing scheduled to be held on April 19, 1996 be adjourned. Mr. Rosen agreed to adjourn the hearing. In a letter to petitioner and her son which was dated April 23, 1996, Mr. Rosen rescheduled the hearing to be held on May 14, 1996. He indicated that petitioner's son, who was over 18 years of age, should attend the hearing. A copy of Mr. Rosen's letter was also sent to Mr. Arai, petitioner's attorney.

        On May 14, 1996, neither petitioner nor her son appeared before Mr. Rosen. Mr. Arai was also absent. Mr. Rosen indicated on the hearing record that he had not been contacted by petitioner or any representative of petitioner prior to the hearing. However, on the date of the hearing, he received the school attorney's copy of a letter which was dated May 10, 1996 and addressed to Mr. Rosen, in which petitioner indicated that she would not be present for the hearing. In her letter, petitioner asserted that the hearing could not go forward because she had filed an appeal with the Commissioner of Education pursuant to Section 310 of the Education Law regarding Mr. Rosen's conduct as an impartial hearing officer. She also indicated that she would not be available on May 15 [the hearing was scheduled for May 14] because she was required to be in her home while one of her sons took an advance placement examination at home. Mr. Rosen ruled that the three matters for which petitioner had requested hearings would be deemed to have been abandoned by petitioner. Respondent's attorney then withdrew respondent's request for a hearing, which was related to petitioner's request for an independent evaluation. Therefore, no issue remained to be determined by Mr. Rosen, who nevertheless declared that he would retain jurisdiction in the event that his determination was reversed on appeal.

        Petitioner challenges the decisions by Mr. Wanderman to transfer the matter pending before him to Mr. Rosen, and Mr. Rosen's decision to accept jurisdiction over the matter. She acknowledges that she received Mr. Wanderman's letter of April 4, 1996 scheduling the hearing to take place on April 12, 1996. She asserts that she telephoned Mr. Wanderman on April 5, 1996, to advise him that she was "unavailable" to attend the hearing on April 12, 1996, because she needed to be with her husband and sister, each of whom had medical procedures scheduled to be performed on that day. She further asserts that she proposed that the hearing be held on April 24, 1996. Petitioner offers a copy of a letter she wrote to Mr. Wanderman on April 15, 1996, three days after the hearing at which Mr. Wanderman transferred the matter which was before him to Mr. Rosen, in which she states her account of her conversation with Mr. Wanderman on April 5, 1996. Mr. Wanderman did not refer to any conversation with petitioner about the scheduling of the hearing, when it was held on April 12, 1996. I note that in a letter dated May 23, 1996, addressed to Mr. Arai, Mr. Wanderman indicated that he had spoken with petitioner on April 5, 1996, however the gist of that conversation was apparently about the scheduling of a hearing for another child of petitioner.

        Petitioner was represented by Mr. Arai in the hearing which was to be conducted by Mr. Wanderman. At the hearing which was held on April 12, 1996, Mr. Wanderman described the action he had taken to alert Mr. Arai that the hearing would be held on that day, and the fact that he had not received any response from Mr. Arai. Although petitioner asserts that Mr. Arai was also unavailable on April 12, 1996, and that Mr. Arai had spoken to Mr. Wanderman on April 10, 1996, there is nothing from Mr. Arai in the record before me to explain either his absence, or failure to respond to Mr. Wanderman's letters of April 4, 1996, and April 11, 1996, and his telephone call to him on the latter date. In his letter of April 11, 1996 to Mr. Arai, which was telefaxed to the latter, Mr. Wanderman indicated that:

" The letter is to advise you that unless adequate justification from you is presented at the hearing scheduled for tomorrow, April 12th, I will direct that the matter pending before me be referred to Mr Rosen in the interests of economy.

Mr. Rosen and I will both be present tomorrow. Please arrange to be present and/or to submit any material which you care to offer for the record. A Stenographer will be present". (Respondent's Exhibit 16)

        Petitioner argues that regardless of Mr. Arai's availability, she had the right to have the hearing on a date which was convenient to her (34 CFR 300.512 [d]; 8 NYCRR 200.5 [c][8]). However, the record reveals that the date of April 12, 1996 was selected by the hearing officer, after petitioner and her attorney had failed to respond to the hearing officer's letters of March 12 and March 19, 1996, asking them to tell him when they would be available for a hearing. Although a parent has the right to attend a hearing, the parent may not prevent a hearing from being held by the simple expedient of not appearing at the hearing, or failing to make a bona fide request for an adjournment of the hearing (Matter of a Child Suspected of Having a Handicapping Condition, 22 Ed. Dept. Rep. 412; Matter of a Handicapped Child, 23 id. 423; Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-5; Application of a Child with a Disability, Appeal No. 95-73).

        In this instance, petitioner reportedly sought an adjournment of the April 12, 1996 hearing. However, the only evidence of her adjournment request is her letter of April 15, 1996, in which she implies that Mr. Wanderman had agreed to adjourn the hearing until April 24, 1996. However, such an agreement would be highly inconsistent with the position which Mr. Wanderman took at the April 12, 1996 hearing. It is also highly unlikely that he would fail to note petitioner's request for an adjournment when he described, on the record, the events leading up to the hearing on that date. I must also note that petitioner has not advanced any substantive objection to the decisions of the two hearing officers to consolidate the pending hearings into a single proceeding. There is nothing in either Federal or State law which would preclude the consolidation of the issues raised by the parties for determination by one hearing officer in a single proceeding (Application of a Child with a Disability, Appeal No. 95-51; Application of a Child with a Disability, Appeal No. 96-45). Upon the record before me, I find that there is no basis for me to annul the decisions of the two hearing officers to consolidate the five hearings into a single proceeding to be heard by Mr. Rosen.

        The remaining issue is whether Mr. Rosen's oral decision at the hearing held on May 14, 1996, finding that petitioner had abandoned her claims by not appearing at the hearing, should be annulled. The record reveals that Mr. Rosen had previously adjourned the hearing which had been scheduled to be held on April 19, 1996, upon petitioner's request which was made one day before the hearing was to be held. By letter dated April 23, 1996, Mr. Rosen informed petitioner that the hearing would be held on May 14, 1996. However, petitioner waited until May 10, 1996, to inform Mr. Rosen that she would not appear on May 14, 1996. As noted above Mr. Rosen did not receive a copy of petitioner's letter until the day of the hearing. Although petitioner alluded to the pendency of her Section 310 appeal to the Commissioner of Education in her letter to Mr. Rosen, she did not indicate that a stay order had been requested in that appeal, nor does she make that claim in this appeal. The second reason given to Mr. Rosen by petitioner for not going forward with the hearing on May 14, 1996, was that " ... I am required by the WAPPINGERS CENTRAL SCHOOL DISTRICT to remain in my home when testing is performed on my children" (Petitioner's Exhibit 28). However, she has not substantiated that claim, in this appeal. In any event, I note that she has submitted a schedule which indicates that this child's sibling, who was also being educated at home, was to take the advanced placement examination in Biology in his home on May 14, 1996.

        Federal and State regulations accord the parent of a child with a disability extensive procedural and substantive rights with regard to the child's education. In turn, each parent has the concomitant obligation to cooperate reasonably with the local school district, and to refrain from attempting to thwart prescribed procedures (Tucker v. Bayshore Union Free School District, 873 F. 2d 563 [2d. Cir., 1989]). I cannot condone petitioner's unilateral attempt to determine if, and when, hearings will be conducted, while insisting that the school district continue to provide services under the so-called pendency provisions of Federal and State law (20 USC 1415 [e][3]; Section 4404 [4] of the Education Law). Although I find that there is no basis for disturbing Mr. Rosen's decision, I note that petitioner is not precluded from raising any claim she may have had in the proceeding which was pending before Mr. Rosen, in a new proceeding.

        THE APPEAL IS DISMISSED.

 

 

Dated: Albany, New York __________________________
September 27, 1996 ANN R. ELDRIDGE