The State Education Department
State Review Officer

No. 97-93

 

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

Appearances:
Donoghue, Thomas, Auslander and Drohan, Esqs., attorneys for respondent, Daniel Petigrow, Esq., of counsel

 

DECISION

        Petitioners appeal from an interim decision by an impartial hearing officer to consolidate their request for a hearing concerning their daughter's educational program for the 1997-98 school year with their prior requests for hearings concerning the girl's educational programs for the 1995-96 and 1996-97 school years, as well as a dispute about her triennial evaluation. The appeal must be sustained.

        At the outset, respondent has raised the jurisdictional defense that petitioners failed to properly serve their notice of intention to seek review because that document was served upon a school district representative who was not authorized to accept service for respondent (cf. 8 NYCRR 279.2). Although respondent appears to be correct, I note that the notice of petition and petition were subsequently served upon the superintendent of schools. I will accept this appeal.

        On January 1, 1998, the Regulations of the Commissioner of Education were amended to provide that interim decisions by impartial hearing officers, with the exception of pendency determinations, cannot be appealed to the State Review Officer (8 NYCRR 279.10 [b]). Since this appeal was commenced prior to January 1, 1998, I will accept the appeal.

        Petitioners and respondent have been involved in due process proceedings for approximately ten years. Some of those proceedings are referred to in Application of a Child with a Disability, Appeal No. 97-83. In that appeal, I noted that petitioners had initially sought a hearing with respect to the child's pendency placement in October, 1995. That hearing began on February 13, 1996, and it had not been completed when petitioners initiated this appeal in December, 1997. In October, 1996, petitioners requested another hearing with regard to respondent's failure to re-evaluate their child within a three-year time period as required by Federal and State regulations. At respondent's request, the hearing officer in the first proceeding consolidated the new proceeding about the triennial evaluation with the first proceeding.

        The hearing officer rendered a decision in November, 1996, finding that respondent had failed to perform the girl's triennial evaluation, and ordering respondent to make arrangements for the evaluation. Petitioners nevertheless appealed from the hearing officer's decision. One of the grounds for their appeal was that the hearing officer lacked the power to assume jurisdiction over the issue of the girl's triennial evaluation, because another hearing officer should have been selected from respondent's rotational list of hearing officers to decide the matter. In Application of a Child with a Disability, Appeal No. 97-4, I dismissed the appeal, noting that neither Federal or State law precluded a hearing officer from consolidating the issues raised by separate hearing requests.

        In April, 1997, petitioners submitted a new hearing request involving the child's educational program for the 1996-97 school year. Respondent asked the hearing officer to assume jurisdiction over that matter. Over petitioners' objection, the hearing officer granted respondent's motion. On July 30, 1997 petitioners submitted another hearing request. That request involved the girl's educational program during the summer of 1997. Once again, the hearing officer granted respondent's motion to consolidate the issues raised in petitioners' latest hearing request with those involved in their three prior hearing requests.

        Petitioners appealed from the hearing officer's interim decision consolidating their July 30, 1997 hearing request with the three prior hearing requests. On December 11, 1997, I sustained their appeal (Application of a Child with a Disability, Appeal No. 97-83). Although I shared the hearing officer's concern that there could be overlapping or redundant testimony if the issues were determined in separate proceedings, I was more concerned about the delay in resolving the three prior matters which would result from the addition of new issues involving the girl's summer program to the pending proceeding.

        The events leading to this appeal occurred prior to my decision in Appeal No. 97-83. By letter dated October 7, 1997, petitioners asked for an impartial hearing to review respondent's alleged failure to provide an appropriate program to their daughter for the 1997-98 school year. On or about October 9, 1997, respondent's attorney asked the hearing officer in the pending proceeding to assume jurisdiction over the issues raised in petitioners' October 7, 1997 hearing request. On November 12, 1997, the hearing officer granted respondent's motion to consolidate the issues raised by petitioners' latest hearing request with the issues in the pending proceeding.

        I am once again constrained to annul the hearing officer's interim decision to consolidate hearings. While I recognize that there is an interrelationship of the issues involved, I must note that it has now been over two years since petitioners initially requested a hearing about their child's educational program. The pending proceeding should be completed as soon as possible. Further delay in that proceeding to resolve the issues raised in petitioners' latest hearing request would not be in this child's best interest.

        THE APPEAL IS SUSTAINED.

 

        IT IS ORDERED that the interim decision of the hearing officer dated November 12, 1997, granting respondent's motion to consolidate petitioners' hearing request dated October 7, 1997, with their prior hearing requests is hereby annulled; and,

 

        IT IS FURTHER ORDERED that respondent shall promptly appoint another hearing officer for the matters covered by petitioners' hearing request dated October 7, 1997.

 

 

 

Dated: Albany, New York __________________________
January 16, 1998 FRANK MUŅOZ