The State Education Department
State Review Officer
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
Hodgson Russ LLP, attorney for respondent, Jerome D. Shad, Esq., of counsel
Petitioner appeals from the decision of an impartial hearing officer which dismissed petitioner's request for a hearing regarding recommendations by respondentís Committee on Special Education (CSE) for her son for the 2004-05 school year.†† The appeal must be dismissed.
††††††††††† The central issue before me is whether the impartial hearing officer exercised proper discretion in dismissing petitioner's request for a hearing and terminating the proceeding.† The impartial hearing officer determined that dismissal was appropriate because of the refusal of petitionerís advocate to advise him of her availability for a prehearing conference he intended to convene† (IHO Decision, p. 7).†
By letter dated August 31, 2004, petitioner objected to the recommendations made at an August 17, 2004 CSE meeting and requested an impartial hearing (IHO Ex. II).† The hearing request asserted disagreement with the CSE's recommendations regarding program, placement and evaluations for her son for the 2004-05 school year.1
Respondent formally notified the impartial hearing officer of his appointment to hear the matter by letter dated October 4, 2004 (IHO Ex. I).† The October 4, 2004 appointment letter indicates that a copy of the letter was sent to petitionerís place of business and to respondentís counsel (id.). On October 4, 2004, the impartial hearing officer's secretary spoke with respondent's counsel by telephone to ascertain available dates for a prehearing conference (IHO Decision, p. 2; IHO Ex. V).† Respondent's counsel advised that he was available for a prehearing conference on October 7, 2004 and October 8, 2004.† Also on October 4, 2004, the impartial hearing officerís secretary left a telephone message with petitionerís advocate asking for her availability for a prehearing conference. By letter and e-mail dated October 7, 2004, the impartial hearing officer informed petitioner's advocate and respondent's counsel of his appointment and advised that he had been attempting to schedule a prehearing telephone conference with petitioner's advocate since October 4, 2004 and advised of the dates that respondentís counsel was available for a conference (IHO Exs. V, VI).††
By letter dated October 8, 2004 to petitioner's advocate, the impartial hearing officer stated that petitioner's advocate had not responded to his requests and asked that she advise him of her availability for a prehearing conference (IHO Ex. VII).† He also advised petitionerís advocate that, "the State Review Officer has held that failure to participate in a prehearing conference is grounds for dismissal of an impartial hearing request" (id.).† By letter and e-mail dated October 15, 2004, the impartial hearing officer advised the parties that he had granted respondentís counselís request, without objection by petitioner, for an extension of time to initiate the impartial hearing based upon the failure of petitionerís advocate to advise him of her availability for a prehearing conference (IHO Exs. IX, X; 8 NYCRR 200.5[i][iii]).† The extension set a new hearing date of November 17, 2004 (IHO Exs. IX, X).† The impartial hearing officer, in his letter and e-mail, again asked petitionerís advocate to advise of her availability for a prehearing conference and again cautioned that failure to participate in a prehearing conference constituted grounds for dismissal of an impartial hearing request (id.).
In response to the impartial hearing officerís inquiries, by letter dated October 16, 2004, petitionerís advocate claimed the impartial hearing officer engaged in improper ex parte communication with respondent's counsel, had not rendered a pendency decision, had improperly granted an adjournment to respondent's counsel without petitioner's knowledge or consent, and asserted that petitioner had no formal notification, before October 9, 2004 that the impartial hearing officer was appointed as a result of the August 31, 2004 hearing request (IHO Exhibit IV).2† Further, petitionerís advocate stated in her letter that she had ďno obligation to advise [the hearing impartial officer] regarding her availabilityĒ for a prehearing conference because she believed, until October 11, 2004, that a different impartial hearing officer was the impartial hearing officer of record (id.).† She also requested the impartial hearing officer recuse himself due to ex parte communication with respondent's counsel.†
By decision dated October 23, 2004, the impartial hearing officer dismissed petitioner's hearing request due to ďnon-cooperation of the parentís advocate in failing to advise as to her availability for a prehearing conferenceĒ (IHO Decision, p. 7).† Additionally, the impartial hearing officer dismissed petitioner's request that he recuse himself (id.).
In a letter dated October 25, 2004, petitioner advised the impartial hearing officer of dates that she would be available for a prehearing telephone conference (Pet. Ex. V).†
Petitioner asserts that the impartial hearing officer's decision should be annulled and seeks a remand for an impartial hearing.†††††††††††††††††††††††††††††††††††††
An impartial 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][xii]).† An impartial 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).† An impartial 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]), unless the impartial 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][i]). An impartial hearing officer may conduct a prehearing conference to simplify or clarify the issues (8 NYCRR 200.5[i][xi][a]; Application of a Child with a Disability, Appeal No. 04-010).
†††††††††††After review of the record before me, I find that the dismissal of petitionerís hearing request comported with due process requirements.† The procedure the impartial hearing officer proposed (a prehearing conference) was reasonably intended to move the hearing along in an organized and expeditious manner.† It is within the impartial hearing officerís discretion to conduct a prehearing conference.† The impartial hearing officer repeatedly attempted to obtain from petitionerís advocate information pertaining to her availability for the prehearing conference and warned her that failure to cooperate could constitute grounds for dismissal.† Petitionerís disagreement with the impartial hearing officerís decision to conduct a prehearing conference does not excuse her unwillingness to participate (Application of a Child with a Disability, Appeal No. 04-010).† Petitioner should have cooperated with the reasonable directives of the impartial hearing officer, participated in the scheduling of the conference, and sought review of the impartial hearing officerís determination after completion of the hearing if she felt aggrieved (id.).† I agree with the impartial hearing officerís decision to dismiss the hearing request and find that the conduct of petitionerís advocate unnecessarily impeded the proceeding below.† Therefore, petitionerís request for a hearing relating to her objections to the August 17, 2004 recommendations by respondentís Committee on Special Education (CSE) for her son for the 2004-05 school year is dismissed with prejudice.
Upon review of the record and of petitioner's allegations and request for recusal, I find no basis on which to conclude that the impartial hearing officer showed favoritism to respondent or was biased or prejudiced against petitioner.† On the contrary, the record reveals that the impartial hearing officer dealt with the parties in a fair and professional manner.† Petitionerís request for recusal and her allegations of impartial hearing officer misconduct are without merit (Application of a Child with a Disability, Appeal No. 04-010).
I have considered petitioner's remaining contentions and I find them to be without merit.†
THE APPEAL IS DISMISSED.
Albany, New York
January 12, 2005
PAUL F. KELLY