92-019

Petitioner seeks review of the actions of a hearing officer in failing to reach a decision in, or to continue with, a hearing held to consider petitioner's request that respondent pay for an independent evaluation of petitioner's child and petitioner's assertion that she had been denied the opportunity to participate in a meeting of respondent's committee on special education (CSE). The appeal must be sustained in part.

Petitioner's child, who is 14 years old, has received instruction at home since 1988. On October 10, 1990, an impartial hearing was held concerning respondent's stated intention to discontinue providing instruction at home to the child, who had not been classified by the CSE as having a handicapping condition. On October 11, 1990, the child attended school, but collapsed in school and was sent to a local hospital. The child was subsequently evaluated in the pediatric endocrinology unit of the New York Hospital-Cornell Medical Center (Cornell) in New York. The results of the Cornell report, alluded to by the parties during the hearing, are not part of the record before me.

On October 15, 1990, the CSE classified the child as other health impaired. No specific basis for that classification is set forth in the record, although one physician had opined that the child might have Cushing's Syndrome. During the course of the hearing, which is the subject of this appeal, respondent sought to raise the issue of whether the child should remain classified. That issue is the subject of another hearing and is not part of this appeal.

At its October 15, 1990 meeting, the CSE prepared an individualized education program (IEP) for the child, which provided for 1:1 instruction of the child at his house. Petitioner requested that an impartial hearing be held to determine if the child's IEP should be amended to include the provision of a word processor to assist the child with his written expression. On August 16, 1991, the impartial hearing officer upheld petitioner's request for a word processor. Respondent appealed from the hearing officer's decision. In Appeal No. 91-35, dated November 7, 1991, I dismissed the Board of Education's appeal, upon a finding that the child exhibited a need for assistance in written expression and that a word processor was an appropriate form of assistance.

On January 17, 1991, petitioner asked the CSE to pay for independent neurological and neuropsychological evaluations of the child. On February 5, 1991, the CSE agreed that a neurological evaluation should be performed, and that a psychological evaluation should be performed by respondent's school psychologist. The CSE deferred making a recommendation for an independent neuropsychological evaluation, pending receipt of the results of the Cornell evaluation.

On February 5, 1991, petitioner requested that an impartial hearing be held on her requests for a neurological evaluation and a neuropsychological evaluation, notwithstanding the CSE's agreement to provide a neurological evaluation. Petitioner also challenged the validity of what she asserted was a "pre-meeting" of the CSE on February 5, 1991. A hearing was scheduled for March 8, 1991, but was adjourned at petitioner's request until March 26, 1991. At the outset of the hearing, petitioner raised the issue of the manner in which the hearing officer had been appointed, and challenged the impartiality of the hearing officer. The hearing officer produced a letter, dated February 6, 1991, from respondent's acting superintendent to the hearing officer, in which the acting superintendent stated that he was respondent's appointed designee for the purpose of appointing impartial hearing officers and that he had appointed the individual to be the hearing officer for the hearing in this matter. No evidence of respondent's delegation of the power to appoint hearing officers was submitted at the hearing. However, even if evidence of the delegation of the power to appoint had been introduced, there is a serious question about the validity of such a delegation.

Section 4404 (1) of the Education Law provides, in material part, that:

" ... the board shall appoint an impartial hearing officer to hear the appeal and make a determination within such period of time as the commissioner by regulation shall determine."

Pursuant to Section 1711 (3) of the Education Law, which is made applicable to central school districts by Section 1804 of such law, a superintendent of school possesses the powers and duties prescribed by the board of education, which may include appropriate duties delegated by the board of education (Matter of Mazzeo, 20 Ed. Dept. Rep. 155). However, I find that it is inappropriate to delegate to a superintendent of schools the statutory duty of a board of education to appoint a hearing officer, because the hearing officer must review the actions taken by the superintendent's subordinates or matters in which a superintendent may have been directly or indirectly involved. While there is no evidence of any prior involvement by the acting superintendent in the matter of this child's education, the process by which hearing officers are appointed should not be tainted by the appearance of a conflict of interest (Application of a child with a Handicapping Condition, 30 Ed. Dept. Rep. 195). In the future, respondent must appoint its hearing officers, or delegate that function to respondent's president in order to provide for timely appointments.

Petitioner challenged the impartiality of the hearing officer because the hearing officer had previously been served with a notice of claim regarding a lawsuit for damages which petitioner intended to bring against respondent, the hearing officer and others. However, the hearing officer declined to recuse himself, on the ground that he had immunity from suit as a quasi-judicial officer. Petitioner appealed to the Commissioner of Education for an order disqualifying the hearing officer on the ground that he had been named as a defendant in litigation brought by petitioner. In Application of a Child with a Handicapping Condition, 31 Ed. Dept. Rep. 65, petitioner's appeal was dismissed as premature because it had been commenced before the hearing was held, and because there was no basis for the disqualification of the hearing officer. In Application of a Child with a Handicapping Condition, 31 Ed. Dept. Rep. , Decision No. 12669, dated March 20, 1992, petitioner's application to reopen the Commissioner's decision was denied. Since petitioner offers no additional basis for challenging the hearing officer's refusal to recuse himself, I will not review that issue.

At the March 26, 1991 hearing, the parties agreed that petitioner's request for an independent neurological evaluation was not an issue to be decided because the CSE had already agreed to her request. Petitioner stated on the record that she and the CSE could reach an agreement on her request for a neuropsychological evaluation, in which respondent's school psychologist would perform a psychological evaluation and would consult with the individual who would perform the neuropsychological evaluation. However, petitioner objected to the CSE's insistence upon receiving the Cornell report, which petitioner asserted was irrelevant and had allegedly been falsified. On his own motion, the hearing officer directed respondent's attorney to prepare a subpoena duces tecum for the Cornell report, which the hearing officer stated he would sign. The hearing officer then adjourned the hearing until the Cornell report could be obtained.

The record reveals that respondent obtained the Cornell report in May, 1991, but the hearing was not resumed until July 23, 1991. At the July 23 hearing, petitioner was assisted by an advocate, who initially requested that the hearing be terminated, because of the delay in the proceedings. The advocate also requested that the hearing officer order respondent to reimburse petitioner for the cost of an independent neurological evaluation which had been performed, and to pay for the cost of a neuropsychological evaluation which had not as yet been performed. After observing that he would be divested of jurisdiction in the matter if petitioner withdrew her request for a hearing (Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 138), the hearing officer asked respondent's attorney if respondent would pay for both evaluations, provided petitioner withdrew her request for a hearing. The respondent's attorney declined to commit respondent on the ground that the attorney would no longer be representing respondent. Petitioner then stated her wish to proceed with the hearing. However, the hearing officer adjourned the hearing until July 25, 1991, after directing respondent's attorney to produce a transcript or tape recording of the February 5, 1991 CSE meeting, for use at the next hearing.

On July 25, 1991, respondent's new attorney advised the hearing officer that he was not prepared to proceed with the case. Over the objection of petitioner's advocate, the hearing officer adjourned the hearing to an undetermined date. The hearing was not resumed.

Respondent asserts that the matter is moot, because on September 25, 1991, the CSE recommended that the child be declassified and returned to school, and that a hearing has been held on the CSE's recommendation. I disagree. The purpose of the requested evaluation is to provide additional information about the child's handicapping condition, if any, and his educational needs. Respondent may not foreclose petitioner's right to seek an independent evaluation by a subsequent recommendation of the CSE to declassify the child. Respondent further asserts that the matter is moot because petitioner told respondent's attorney that the issues of the hearing were moot, after the hearing officer advised the parties that the hearing would resume on January 24, 1992. In her reply, petitioner denies respondent's assertion. I find that respondent has not met its burden of establishing that petitioner requested that the hearing be terminated.

The central issue in this appeal is whether petitioner is entitled to the independent evaluations which she requested in her letter of January 17, 1991. In view of the representations by respondent's attorney and CSE chairperson at the hearing that the CSE had agreed to the request for a neurological evaluation, there is no reason why respondent should not reimburse petitioner for the neurological evaluation which her advocate stated had been performed, upon petitioner's submission to the CSE of the results of such evaluation and proof of her payment for the evaluation.

With regard to the requested neuropsychological evaluation, I find that petitioner is entitled to such evaluation at respondent's expense. Federal and State regulations provide that the parent of a child with a handicapping condition is entitled to obtain an independent educational evaluation at public expense, if the parent disagrees with the evaluation obtained by the school district. However, a parent's right to an independent evaluation at public expense is subject to the right of a board of education to initiate an impartial hearing to demonstrate the appropriateness of its own evaluation. If the hearing officer determines that the board'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]).

Although the U.S. Department of Education has opined that there is no specific time limit within which a board of education must initiate a hearing (16 EHLR 1080), I have previously held that a board of education may not unduly delay its decision to initiate a hearing (Application of a Child with a Handicapping Condition, Appeal No. 90-1; Application of a Child with a Handicapping Condition, Appeal No 92-2). In this instance, respondent did not initiate a hearing for this purpose. Petitioner initiated the hearing, at which respondent had the burden of going forward to establish the appropriateness of its evaluation. However, no evidence of the adequacy of its evaluation was introduced, despite three hearing dates over a period of four months, and no further hearing was scheduled until one year after petitioner's request for an independent evaluation. In the interim, the CSE on September 25, 1991 recommended that the child be declassified, and petitioner requested a hearing to review that recommendation. However, petitioner has been precluded from obtaining an independent neuropsychological evaluation at public expense, because of the extended delay in this matter. I find that petitioner has been prejudiced by the undue delay in the hearing concerning her request for a neuropsychological evaluation, and I shall order respondent to pay for such an evaluation.

Petitioner also challenges the authority of the hearing officer to issue a subpoena duces tecum for the Cornell report. State regulation expressly authorizes hearing officers to issue subpoenas in connection with the administrative hearings they conduct (8 NYCRR 200.5 [c][1]). Contrary to petitioner's assertion at the hearing, the information sought was relevant to the hearing, the purpose of which was to determine the appropriateness of the tests performed to date. Petitioner also requests that I order respondent to return to her all copies of the information which respondent obtained pursuant to the subpoena. However, she offers no legal basis for this request. To the extent that petitioner wishes to challenge the accuracy of any document in the child's file, her remedy is to request that respondent amend the information in accordance with the provisions of 34 CFR 300.567.

Finally, petitioner asserts that she was denied due process by not being allowed to participate in an alleged pre-meeting of the CSE on February 5, 1991. There is no evidence in the record to establish whether such a meeting occurred. However, I will not remand the matter for a hearing because it would serve no useful purpose. Petitioner sought to obtain two independent evaluations at the February 5, 1991 CSE meeting, and I have determined that she is entitled to those evaluations.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent reimburse petitioner for the cost of an independent neurological evaluation of the child, upon petitioner's submission to the CSE of the results of such evaluation and proof of payment by petitioner for the evaluation, and that respondent shall pay for an independent neuropsychological evaluation of the child, the results of which must also be provided to the CSE.