93-047

Petitioner appeals from the decision of an impartial hearing officer which held that respondent had failed to provide petitioner with the requisite notice of its intention to evaluate petitioner's child, but which did not rule upon petitioner's assertion that the hearing officer was invalidly appointed. The appeal must be sustained.

Petitioner's child, who is 17 years old, sustained multiple injuries, including traumatic brain injury, as a result of an automobile accident which occurred in March, 1991. The child has a severe cognitive impairment, does not communicate, and requires assistance for all aspects of his daily care. In September, 1991, the child was referred to respondent's committee on special education (CSE), which recommended that the child be classified as other health impaired (8 NYCRR 200.1 [mm][10]). Neither the content of the initial individualized education program (IEP) nor the child's classification is in dispute in this appeal.

At the time of the CSE's initial recommendation on April 15, 1992, the child was in a rehabilitation center in Milford, Pennsylvania. However, the child was transferred to a hospital in Syracuse, New York, and was thereafter placed in a rehabilitation facility in Syracuse. In July, 1992, the child began to receive special education from a teacher employed by the Board of Cooperative Educational Services of Onondaga, Cortland and Madison Counties (BOCES), in accordance with the child's individualized education program (IEP). The child reportedly received speech/language therapy, physical therapy and occupational therapy provided by the staff of the hospital and the rehabilitation facility.

In November, 1992, petitioner requested that an impartial hearing be held because of respondent's alleged failure to provide the child with special educational services. The parties attempted to resolve this disagreement without a hearing, but were unsuccessful in doing so. A hearing was held at petitioner's request on April 23, 1993. In a decision dated June 15, 1993, the hearing officer held that the child's IEP of April 15, 1992 lacked sufficient information to allow the individuals who were to provide service to plan appropriate programs and activities for the child. The hearing officer directed the CSE to prepare a new IEP for the 1993-94 school year.

Petitioner appealed from the hearing officer's decision, on the ground that it had not addressed petitioner's assertion that respondent had failed to provide all of the services which were specified in the child's April 15, 1992 IEP. In Application of a Child with a Disability, Appeal No. 93-34, dated August 26, 1993, petitioner's appeal was sustained in part. Respondent's CSE was found to have failed to comply with the State regulatory requirement that it make its recommendation within either 40 days after the child had been referred to it or 30 days after it received parental consent to evaluate the child (8 NYCRR 200.4 [c]). Respondent was held to be responsible for the child's loss of services as a result of the BOCES' unilateral termination of the services of the child's special education teacher as of December, 1992. However, petitioner's request that the child be awarded compensatory education was denied because the child remained eligible to receive services from respondent, and petitioner's request for additional services during the 1993-94 school year was deferred because the record did not afford a basis for determining the appropriateness of any service until the child's IEP for the 1993-94 school year had been prepared in accordance with the hearing officer's decision. Nevertheless, the CSE was directed to recommend such additional services as would address any deficiency caused by respondent's failure to provide certain services to the child.

The events which give rise to this appeal occurred after the hearing in the prior appeal concluded, but before the hearing officer had rendered his decision. On May 11, 1993 while he was a patient in the Crouse Irving Memorial Hospital in Syracuse, the child was observed by a school psychologist, an occupational therapist, a speech/language therapist, respondent's school business manager and two attorneys of the law firm which then represented respondent. At the hearing in this proceeding, the CSE chairperson testified that she had arranged for the psychologist and therapists to observe the child and assess his needs in order for the CSE to have current information about the child at its annual review. The school psychologist, occupational therapist and speech/language therapist interviewed hospital nurses about the child's physical condition, and used various techniques to ascertain the extent of his responses to visual and auditory stimuli, cognitive status, muscle tone and range of motion. In a report of the May 11, 1993 observation and assessment, described as an educational evaluation, respondent's staff concluded that the child continued to exhibit profound communicative, motor and cognitive deficits. The evaluators recommended that the child continue to receive visual and auditory stimulation, therapy to maintain his range of motion, and services designed to elicit, purposeful responses from the child, all of which were to be subject to the approval of the child's physicians and the hospital staff.

Petitioner was not notified of respondent's intention to conduct the May 11, 1993 re-evaluation. In a letter to the CSE dated May 13, 1993, petitioner asserted that he should have received prior notice of the evaluation and been afforded an opportunity to be present during the evaluation. Petitioner requested that an impartial hearing be conducted to consider his claims, and that the results of the evaluation not be used for any purposes without his consent.

Petitioner's letter was received by respondent on May 14, 1993. In a memo dated June 7, 1993, the CSE chairperson informed respondent's superintendent of schools of petitioner's request for a hearing and asked that respondent appoint the hearing officer who had conducted the hearing held on April 23, 1993 to conduct the requested hearing. The minutes of respondent's meeting of June 8, 1993 reveal that the individual to whom the CSE chairperson had referred was appointed by respondent to serve as the hearing officer. However, the hearing officer was not informed of his appointment until he received a letter dated July 10, 1993 from respondent's then attorney, who asked the hearing officer to make arrangements for the hearing.

The hearing officer wrote to petitioner to ascertain whether certain dates in August would be convenient for the hearing. By letter dated July 30, 1993, petitioner informed the hearing officer that the hearing was "over" as of June 28, 1993, because of the hearing officer's failure to render a decision within 45 days after respondent received petitioner's request for a hearing, as required by Federal and State regulations (34 CFR 300.512 [a][1]; 8 NYCRR 200.5 [c][11]). Petitioner also asserted that the issue of the untimely hearing had been appealed. The hearing officer responded to petitioner's letter by advising petitioner to withdraw his request for a hearing (Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 138). The hearing officer further advised petitioner that a hearing would be conducted, unless petitioner withdrew his request. Following a subsequent exchange of letters by petitioner and the hearing officer in which they reiterated their respective positions, a hearing was scheduled to be held on August 23, 1993.

At the outset of the hearing, petitioner advised the hearing officer that he had appealed to the State Review Officer from the hearing officer's failure to render a timely decision, and demanded that the hearing officer discontinue the hearing. Petitioner also asserted that the hearing officer had been improperly appointed to conduct the hearing. Petitioner requested that he be provided with a copy of the transcript of the proceedings on August 23, 1993, and departed from the hearing room.

After recounting on the record the chronology of events involving his appointment and the subsequent delay in commencing the hearing, the hearing officer proceeded with the hearing, despite petitioner's absence. The sole witness presented by respondent was the CSE chairperson, who testified that it was not respondent's practice to give prior notice to the parents of children with disabilities who had been previously evaluated of any subsequent evaluation or observation. The CSE chairperson further testified that petitioner had consented to the initial evaluation of the child by the CSE, and had not withdrawn his consent (see 34 CFR 300.500 [a][3]; 8 NYCRR 200.1 [1][k]).

In a decision dated October 5, 1993, the hearing officer held that the CSE did not comply with the State regulatory requirements for notice of evaluation to be given to parents (8 NYCRR 200.5 [a][1]). With regard to petitioner's assertion that he was not afforded an opportunity to present additional information to the CSE concerning the child's needs, the hearing officer found that petitioner had been present at CSE meetings held on May 25, 1993 and June 21, 1993, when the child's IEP for the 1993-94 school year was prepared, and amended to reflect the concerns of the child's physician, respectively. The hearing officer held that petitioner had been afforded an opportunity to present information to the CSE. The hearing officer held that petitioner was not accorded the right to be present during any evaluation of the child, by any provision of law.

In this appeal, petitioner asserts that the hearing officer's decision should be overturned because it purportedly failed to address the issue of the CSE's obligation to notify him of its intention to evaluate his child, notwithstanding the hearing officer's explicit holding that respondent had not complied with the State regulatory requirement to provide such notice. Petitioner does not explain how he is aggrieved by the hearing officer's holding, but asserts that the holding is less than clear because it purportedly condones the CSE's failure to provide the requisite notice. In its answer, respondent asserts that its staff " ... were not present to do an evaluation of ... " the child, and that in any event, it was not aware of its obligation to provide petitioner with notice of its intention to evaluate the child. Respondent further asserts in a letter-memorandum of law that it was not required to provide petitioner with any written notice of its intended evaluation.

In view of the parties' continuing disagreement over the matter, and the hearing officer's failure to explicitly address the question of the appropriate remedy, if any, I will review the hearing officer's decision. The relevant State regulation reads, in material part, as follows:

"Notice of initial evaluation, review or reevaluation. A chairperson of a committee on special education shall, upon receipt of a referral of a student for an initial evaluation or prior to initiating a review or reevaluation, notify the parent in writing that evaluative information is being sought or a review will be conducted regarding the student. If the native language or other mode of communication of the parent is not a written language, the school district shall ensure that the parent understands the content of notices described in this Part. Such notice shall:

(i) include a description of the proposed evaluation or review and the uses to be made of the information;" (8 NYCRR 200.5 [a][1]).

The record does not reveal whether the CSE provided petitioner with written notice that an annual review would be conducted, but does reveal that petitioner attended the annual review which was conducted on May 25, 1993. However, the issue in this appeal is whether the CSE was required to notify petitioner, in writing, of its intention to further evaluate the child on May 11, 1993. Respondent asserts that the regulatory provision applies only to initial evaluations and to triennial reevaluation. However, the regulation does not explicitly qualify the word "reevaluation" by the word "triennial". Moreover, to do so would be inconsistent with a parallel provision of Federal regulation which requires that written notice be given to a parent whenever a board of education:

"Proposes to initiate or change the identification, evaluation or educational placement of the child or the provision of FAPE to the child." (34 CFR 300.504 [a][1])

In this instance, the report prepared by respondent's school psychologist, speech/language therapist and occupational therapist is denominated as an educational evaluation. Although it does not reveal each of the techniques which respondent's staff used to assess the child's needs when they visited the hospital on May 11, 1993, I find that respondent's staff conducted an evaluation, the purpose of which was to provide new information to the CSE. My finding should not be construed as equating a review of existing records in preparation for an annual review with an evaluation. I hold that the hearing officer was correct in finding that respondent's CSE should have provided written notice to petitioner of its intention to evaluate the child, in accordance with Federal and State regulations. In determining what, if any, relief should be accorded to petitioner, I have considered the testimony of the CSE chairperson that the parties have agreed to conduct one or more independent evaluations of the child. I also find, as did the hearing officer, that petitioner was not precluded from providing additional information about the child's needs when the results of the evaluation in question were discussed at the annual review conducted on May 25, 1993. In view of the fact that an independent evaluation will be conducted, I will not direct respondent to refrain from relying upon the results of its evaluation, without petitioner's consent.

Petitioner challenges the appointment and the impartiality of the hearing officer. At the hearing in this proceeding, petitioner did not explain the basis for his challenge, apparently because of his ill-advised belief that he could avoid a hearing on the issue because of the pendency of his appeal to the State Review Officer from the hearing officer's decision in the prior hearing. The hearing officer was required to proceed with the hearing because petitioner declined to withdraw his request for the hearing (Application of a Child with a Handicapping Condition, supra). Petitioner had commenced his appeal prior to the hearing in this proceeding, but the decision in that appeal was rendered three days after the hearing was held in this proceeding. In the prior appeal, petitioner referred to the untimeliness of a decision by the hearing officer in this proceeding, and requested relief. However, petitioner's request that respondent be barred from using the results of the May 11, 1993 evaluation was denied because petitioner had failed to exhaust his administrative remedy of an appeal to the Commissioner of Education pursuant to Section 310 of the Education Law. Since petitioner is not an attorney, and the hearing officer has since rendered a decision in the instant matter, it would be unfair to deprive petitioner of an opportunity to litigate the issues relating to the appointment of the hearing officer and his alleged lack of impartiality, as well as the untimeliness of the hearing officer's decision (cf. Application of a Child with a Disability, Appeal No. 93-2). Therefore, I will consider those issues in this appeal.

Petitioner challenges the impartiality of the hearing officer on the ground that in his resume the hearing officer revealed that in September and October of 1992, he served as the director of special education in two component school districts of the BOCES of Onondaga, Cortland and Madison Counties. State regulation provides that an impartial hearing officer shall:

" (1) be independent, shall not be an officer, employee or agent of the school district or of the board of cooperative educational services of which such school district is a component, or an employee of the Education Department, shall not have a personal or professional interest which would conflict with his or her objectivity in the hearing, and shall not have participated in any manner in the formulation of the recommendation sought to be reviewed; ... " (8 NYCRR 200.1 [s][1]).

Respondent asserts that the Canastota Central School District is a component of the BOCES of Madison and Oneida Counties, which is a different BOCES than the BOCES of Onondaga, Cortland and Madison Counties. Petitioner offers no evidence which contradicts respondent's assertion. However, I note that the decision in the prior appeal referred to certain special education services being provided to the child by the latter BOCES. Nevertheless, the brief statement in the hearing officer's resume does not afford an adequate basis for finding that the hearing officer was an employee of the BOCES of Onondaga, Cortland and Madison Counties at the time of his appointment by respondent in June, 1993 to serve as a hearing officer.

Petitioner asserts that the hearing officer was appointed in a manner inconsistent with the requirement that he be impartial, because the chairperson of the CSE participated in the hearing officer's selection. Allowing school district employees who may be called as witnesses or who were otherwise involved in the matters to be reviewed by a hearing officer to be involved in the hearing officer's selection creates an appearance of impropriety which must be avoided (Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 195; Application of a Child with a Handicapping Condition, Appeal No. 92-25; Application of a Child with a Handicapping Condition, Appeal No. 92-46). In this instance, the CSE chairperson was the sole witness in the hearing. Upon the facts in this record, I find that the hearing officer erred in not considering petitioner's claim of his improper appointment, and that the hearing officer's decision must be annulled because of the appearance of impropriety in his selection.

With regard to the timeliness of the hearing officer's decision, respondent does not dispute the fact that the decision was not rendered within the 45 day period prescribed by Federal and State regulations. However, respondent attributes the bulk of the delay to an administrative error in not promptly notifying the hearing officer of his appointment. There was, however, one additional source of unwarranted delay. Notwithstanding respondent's receipt of petitioner's request for a hearing on May 14, 1993, respondent did not appoint the hearing officer until June 8, 1993, almost one month after the request had been received. Respondent offers no explanation for this delay. In the future, respondent must take steps to ensure that hearing officers are promptly appointed after requests for hearings are received. If necessary, respondent should authorize its president to act on its behalf in making timely appointments between respondent's scheduled meetings (Application of a Child with a Handicapping Condition, Appeal No. 92-46). Respondent must also ensure that the individuals which it appoints as hearing officers are promptly notified of their appointments. I shall refer this issue to the Education Department's Office of Special Education Services, with the request that it assist respondent in developing an appropriate plan of corrective action (Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-33).

Petitioner has raised a number of other issues in this appeal which do not directly relate to the hearing officer's decision. Such issues cannot be considered because they are not within the jurisdiction of the State Review Officer (Section 4404 [2] of the Education Law). I specifically note that the appropriateness of the child's IEP for the 1993-94 school year was not placed in issue at the hearing, and has not been determined in this appeal. Petitioner must exhaust his administrative remedy of an impartial hearing with regard to such IEP. I have considered petitioner's other assertions and find them to be without merit.

It is readily apparent from the record in this appeal that the parties are not working together cooperatively in the manner implicit in the Federal and State statutes (Tucker v. Bay Shore Union Free School District, 873 F. 2d 563 (2nd Cir., 1989). I urge them to promptly obtain whatever independent evaluations they have agreed to obtain. In view of the child's present medical condition, it is imperative that they invite the child's physician to attend the CSE meeting at which the results of such evaluations are discussed, and that respondent's school physician attend such meeting to assist the CSE.

THE APPEAL IS SUSTAINED.

THE DECISION OF THE HEARING OFFICER IS ANNULLED.