The State Education Department
State Review Officer

No. 04-010

 

 

 

 

 

 

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 Springville-Griffith Institute Central School District

 

 

Appearances:
Hodgson Russ LLP, attorneys for respondent, Ryan L. Everhart, Esq., of counsel

 

 

DECISION

 

††††††††††† Petitioner appeals from the decision of an impartial hearing officer dismissing petitionerís hearing request, relating to the alleged failure of the Springville-Griffith Institute Central School District (district) to provide a free appropriate public education (FAPE) to petitionerís child.The appeal must be dismissed.

 

††††††††††† The central issue before me is whether the hearing officer exercised proper discretion in dismissing petitioner's request for a hearing and terminating the proceeding. The hearing officer determined that dismissal was required because petitionerís refusal to participate in a prehearing conference prevented the hearing from being completed within 45 days.

        By letter dated December 12, 2003, petitionerís advocate informed respondent that petitioner rejected the 2003-04 IEP and sought an impartial hearing (Exhibit 1). The hearing request asserts petitioner's "disagreement with the program," and alleges, inter alia, failure to implement the student's individualized education program (IEP), and "procedural and substantive non compliance with applicable law" (Exhibit 1).

Respondent formally notified the hearing officer of his appointment by letter dated December 15, 2003 (Exhibit 2).By letter dated December 16, 2003, the hearing officer informed petitioner's advocate and respondent's counsel of his appointment and advised that he intended to hold a prehearing telephone conference call for the purposes of identifying the issues in dispute, discussing stipulations, settlements, and procedural issues, and scheduling the hearing (Exhibit 3).In response, by letter dated December 19, 2003, respondent informed the parties that it was available for a conference on December 22 or 23, 2003, and available for a hearing any business day, but for two, in January 2004 (Exhibit 4).By letter dated January 5, 2004 to petitioner, the hearing officer indicated that petitioner had not responded to his request to schedule a prehearing telephone conference, and further stated ďI cannot proceed with the hearing you requested without your cooperation. Please contact me promptly so I can schedule a conference and move ahead with the hearingĒ (Exhibit 10).In response, by letter dated January 8, 2004, petitioner advised the parties that an earlier reply to the hearing officer did not occur because petitionerís advocateís business office had been closed for two weeks due to the holidays (Exhibit 11). 1In the January 8, 2004 letter, petitioner advised the hearing officer of his availability for a prehearing telephone conference on either January 16, 27, or 30, 2004, and requested that a verbatim record of the conference call be maintained (Exhibit 11).

 

In a January 12, 2004 response, respondent indicated availability for the conference on January 15, 27, and 30, 2004, noted that a decision was due on January 26, 2004, and suggested that petitioner request an extension to the requirement that a decision must be issued within 45 days (Exhibit 12).Based on the information with regard to acceptable scheduling, the hearing officer, by letter dated January 14, 2004, scheduled a telephone conference for January 27, 2004 (Exhibit 13).He advised the parties of the January 26, 2004 decision due date, explaining that he could only grant an extension at the request of a party.He explicitly stated that if neither party requested an extension before or during the conference, he might dismiss the hearing, "taking into consideration the reasons for the delay in proceeding" (Exhibit 13).

††††††††††

On January 15, 2004, the hearing officer denied petitionerís request for a verbatim record of the prehearing conference call (Exhibit 14).The hearing officer reasoned that a prehearing conference call is not a proceeding in which maintaining a verbatim record is required by 8 NYCRR 200.5(i)(3)(iv).In lieu of a verbatim record, the hearing officer advised that subsequent to the prehearing conference he would prepare a written summary of what was discussed, mail it to both parties, enter the summary into the record at the hearing, and at that time entertain any comments or objections to the summary (Exhibit 14).

 

By letter dated January 22, 2004, petitioner objected to the hearing officer's proposal and indicated an unwillingness to discuss issues in dispute as well as a refusal to stipulate to any facts or evidence (Exhibit 15).Petitioner further advised the hearing officer of the following: that a hearing decision was due in three days and that ďneither party had requested an extensionĒ; that hearing dates should be scheduled immediately;that petitioner had filed a complaint with the New York State Education Department against the hearing officer for misconduct; and that petitioner sought recusal of the hearing officer (Exhibit 15).A prehearing conference call was scheduled for January 27, 2004, a day petitioner had indicated his availability.Petitioner was advised by the hearing officer that his participation was expected and was warned of adverse consequences for failure to participate (Exhibit 16).By e-mail dated January 26, 2004, petitionerís advocate declined to participate in the call and acknowledged the possible consequence of dismissal of the hearing request (Exhibit 17).The e-mail also communicated petitionerís belief that the hearing officer was ďblackmailingĒ him (Exhibit 17).By e-mail dated January 27, 2004, the hearing officer again advised petitioner that failure to participate in the prehearing conference could result in dismissal (Exhibit 19).The hearing officer further advised that petitioner was obligated to comply with hearing procedures he established and that petitioner could appeal his determinations subsequent to the hearing (Exhibit 19).

 

On January 27, 2004, prehearing conference calls were made to petitionerís advocate's office by respondent and by the hearing officer but there was no answer (Exhibit 22).By letter dated January 27, 2004, respondent moved for dismissal of petitionerís hearing request, arguing that petitioner was not meaningfully participating in the matter and had unduly delayed the proceeding, resulting in the expiration of the 45 day time period without a hearing being held (Exhibit 21).Respondent also cited an additional basis for dismissal, alleging a failure to provide the district with authorization from the parent to release records to petitioner's advocate (Exhibit 21).By letter dated January 28, 2004, the hearing officer informed petitioner that he would rule on respondentís dismissal motion and gave an opportunity for a reply (Exhibit 22).Petitioner responded, in part, by indicating that participation by petitioner in the prehearing conference call would have occurred had the hearing officer agreed to maintain a verbatim record (Exhibit 23).

 

By decision dated February 6, 2004, the hearing officer determined that petitioner's refusal to participate in the prehearing telephone conference prevented the hearing from going forward and caused the failure to complete a hearing within 45 days. He concluded that, under the existing circumstances he could not go forward with the hearing.

 

Petitioner asserts that the hearing officer's decision should be annulled, and seeks the district's appointment of a second hearing officer or, in the alternative, a determination entitling petitioner to the relief sought in his hearing request.Petitioner further seeks a determination that respondent unreasonably delayed the hearing by submitting a motion for clarification of the issues.By answer dated March 15, 2004, respondent seeks dismissal of the petition and affirmance of the hearing officer's decision.

 

A hearing officer is appointed to preside at a hearing and provide all parties an opportunity to present evidence and testimony (8 NYCRR 200.5[i][3][vi]).A hearing officer must be fair and impartial and must avoid giving even the appearance of impropriety or prejudice (Application of a Child with a Disability, Appeal No. 03-071; Application of a Child with a Disability, Appeal No. 01-046).A hearing officer also must see that the hearing is conducted and completed, and that a decision is issued not later than 45 days after a request for a hearing is received by the board of education (34 C.F.R. ß 300.511[a]; 8 NYCRR 200.5[i][4]), unless the hearing officer receives and grants a request for an extension of the regulatory time frame from one of the parties (34 C.F.R. ß 300.511[c]; 8 NYCRR 200.5[i][4][i]).In preparation for a hearing, a hearing officer may, at his or her discretion, choose to conduct prehearing conferences for the purpose of discussing hearing related matters.Although the regulations did not at the time of petitioner's request for a hearing explicitly provide for prehearing conferences, such conferences are an established and acceptable hearing practice associated with impartial hearings (see, e.g., Application of a Child with a Disability, Appeal No. 02-109; Application of a Child with a Disability, Appeal No. 01-030; Application of a Child with a Disability, Appeal No.99-052; Application of a Child with a Disability, Appeal No. 98-49; Application of the Bd. of Educ. of the Arlington Cent. Sch. Dist., Appeal No. 03-100).At the time of this due process hearing request, there was no statutory or regulatory requirement to make a verbatim record of discussions at a prehearing conference.2

 

After review of the record before me, I find that the dismissal of petitionerís hearing request comported with due process requirements.The hearing officer was concerned with completing the hearing within the required 45 days.The procedure he proposed (a prehearing conference) was reasonably intended to move the hearing along in an organized and expeditious manner.I agree with the hearing officerís determination that there was no requirement at the time that discussion at a prehearing conference must be recorded verbatim.Further, I find that his intention to write a summary of the prehearing conference, provide copies to the parties, make the summary part of the hearing record, and afford an opportunity for comments and objections at the hearing comported with the requirements of due process.It was within the hearing officerís discretion to conduct a prehearing conference.Petitionerís disagreement with the conducting of a prehearing conference does not excuse his failure to participate(see generallyApplication of a Child with a Disability, Appeal No. 99-52).Petitioner should have cooperated with the reasonable directives of the hearing officer, participated in the conference, and sought review of the hearing officerís determination after completion of the hearing if he felt aggrieved (id.).I agree with the hearing officerís determination that petitionerís conduct impeded the due process proceeding from moving forward and unreasonably interfered with a hearing officer conducting his duties and fulfilling his responsibilities.Petitioner did so to such an extent that dismissal of the hearing request was warranted.

 

†††††††††† I have reviewed the full record of this case.Upon a review of the record and of petitioner's allegations and requests for recusal, I have found no basis on which to conclude that the hearing officer showed favoritism to respondent or was biased or prejudiced against petitioner.On the contrary, the record reveals that the hearing officer dealt with the parties in a fair and professional manner.The request for recusal and allegations of hearing officer misconduct are without merit.

 

I have considered petitioner's remaining contentions and find them to be without merit.

 

 

THE APPEAL IS DISMISSED.

 

Dated:

Albany, New York

 

__________________________

 

April 16, 2004

 

PAUL F. KELLY

STATE REVIEW OFFICER

 

 

1Petitionerís advocate's conduct in requesting a hearing and then being unavailable for two weeks, as reflected in the record, is not consistent with the intent of the IDEA to resolve complaints in an expeditious manner (see generally Polera v. Bd. of Educ. of the Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 [2d Cir. 2001]), nor does it facilitate completion of a hearing within 45 days.

 

2Although prehearing conferences are not currently mentioned in regulation, pursuant to sections 101, 207, 305, 4402, 4403 and 4404 of the Education Law, effective May 1, 2004, paragraph (3) of subdivision (i) of section 200.5 of the Regulations of the Commissioner has been amended and, in relevant part, will provide that impartial hearings be conducted in accordance with the following rules:

 

††††††††††† "A prehearing conference with the parties may be scheduled.Such conference may be conducted by telephone.A transcript or a written summary of the prehearing conference shall be entered into the record by the impartial hearing officer.A prehearing conference is for the purposes of:

††††††††††† (a)simplifying or clarifying the issues;

(b)establishing date(s) for the completion of the hearing;

(c)identifying evidence to be entered into the record;

(d)identifying witnesses expected to provide testimony; and/or

(e)addressing other administrative matters as the impartial hearing officer

deems necessary to complete a timely hearing."

(8 NYCRR 200.5[i][3][xi] [effective May 1, 2004])