94-012

Petitioners appeal from the decision of an impartial hearing officer which held that respondent need not replace the coordinator of its special work program with an individual experienced in dealing with autistic children, and that respondent was not obligated to obtain petitioners' prior approval of individuals selected by respondent to evaluate petitioners' child, or to conduct the child's evaluation only on school premises during the morning. The appeal must be dismissed.

At the outset, I must address petitioners' objection to me serving as the State Review Officer in this appeal. Petitioners' objection is twofold. First, they assert that, under Federal law, no employee of the State Education Department may serve as the State Review Officer. In addition to serving as the State Review Officer, I am employed by the New York State Education Department as the Coordinator of Project Diversity.

An analysis of petitioners' assertion that Federal law precludes any employee of the State Education Department from serving as the State Review Officer must begin with the terms of the Individuals with Disabilities Education Act (20 USC 1400 et seq.; hereinafter IDEA). The relevant portion of the IDEA reads as follows:

" (2) Whenever a complaint has been received under paragraph (1) of this subsection, the parents or guardian shall have an opportunity for an impartial due process hearing which shall be conducted by the State educational agency or by the local educational agency or intermediate educational unit, as determined by State law or by the State educational agency. No hearing conducted pursuant to the requirements of this paragraph shall be conducted by an employee of such agency or unit involved in the education or care of the child.

(c) Review of local decision by State educational agency

If the hearing required in paragraph (2) of subsection (b) of this section is conducted by a local educational agency or an intermediate educational unit, any party aggrieved by the findings and decision rendered in such a hearing may appeal to the State educational agency which shall conduct an impartial review of such hearing. The officer conducting such review shall make an independent decision upon completion of such review." (20 USC 1415 [b][2]+[c])

In New York, hearings are conducted by school districts (local educational agencies). The IDEA expressly precludes any employee of the school district which holds a hearing from serving as the hearing officer in such hearing. However, the IDEA does not preclude an employee of a State educational agency (SEA) which conducts an impartial review of an impartial hearing officer's determination from conducting such review. Indeed, such a blanket prohibition against all SEA employees serving as reviewing officers is inconsistent with the express direction of the statute that the SEA, "shall conduct an impartial review of such hearing". See also note 1 to 34 CFR 300.510:

"The SEA may conduct its review either directly or through another State agency acting on its behalf. However, the SEA remains responsible for the final decision on review."

For over 15 years, the Office of Special Education Programs of the U.S. Department of Education (OSEP) took the position that there was no such blanket prohibition against all employees of SEAs serving as State-level reviewing officers. OSEP promulgated guidelines, Revised DAS Bulletin 107, to help SEAs ascertain which SEA employees could serve as reviewing officers, and which were precluded from doing so because of the nature of their other duties for the SEA. Nevertheless, in 1991, the U.S. Department of Education proposed to amend its regulations implementing the IDEA to explicitly preclude any SEA employee from serving as a State-level reviewing officer, purportedly because some courts had concluded that Congress had intended to exclude all SEA employees from so serving, notwithstanding the absence of any explicit prohibition in the IDEA (Federal Register, August 19, 1991, page 41269). However, no mention was made of the court decisions which have held that SEA employees who are not involved with the education of children with disabilities may serve as State-level reviewing officers, e.g., Victoria L. v. Dist. School Bd., 741 F. 2d 369 (11th Cir., 1984); Brandon E. v. Wisconsin Dept. of Pub. Instruction, 595 F. Supp. 740 (E.D. Wis., 1984); Schuldt v. Mankato Ind. Sch. Dist., [D. Minn., 1990) aff'd on other grounds 937 F. 2d 1347(8th Cir., 1991). Approximately one year after the U.S. Department of Education proposed to amend 34 CFR 300.510 to exclude all SEA employees from serving as State-level reviewing officers, it deleted the proposed amendment, while noting that there was a "lack of consensus about the proposed change" (Federal Register, September 29, 1992, page 44850).

Prior to July 1, 1990, the Commissioner of Education conducted State-level reviews in New York. However, the courts found that the Commissioner could not perform State-level reviews, because the Commissioner was responsible for the supervision of the State's public elementary and secondary schools (Burr v. Ambach, 863 F. 2d 1071 [2d Cir., 1988]; Holmes v. Sobol et al., 690 F. Supp. 154 [W.D.NY., 1988]; Louis M. v. Ambach, 714 F. Supp. 1276 [N.D. NY, 1989]). On July 1, 1990, Section 4404 of the Education Law was amended to provide that the decisions of locally appointed hearing officers would be reviewed by a State Review Officer of the State Education Department. Consistent with the criteria set forth in the Federal Revised DAS Bulletin 107, the Commissioner of Education promulgated regulatory requirements for the impartiality of State Review Officers (8 NYCRR 279.1 [c]). State Review Officers must be independent of, and may not report to, the office of the State Education Department which is responsible for the general supervision of educational programs for children with disabilities (8 NYCRR 279.1 [c][3]), and they may not have been previously employed by the Department in positions requiring their routine personal involvement in decisions made by school districts regarding the education of such children (8 NYCRR 279.1 [c][5]). The present statutory and regulatory schemes for State-level review in New York were recently reviewed in the New York State Supreme Court, Nassau County, in Application of the Bd. of Ed. Baldwin UFSD v. Sobol, et al., (New York Law Journal, April 5, 1994, page 26, column 6). The court in Baldwin expressly held that the current review procedure does not violate Federal law.

I have been selected as the State Review Officer in accordance with the criteria for impartiality set forth in 8 NYCRR 279.1 (c). As the Coordinator of Project Diversity, I do not report to any officer of the State Education Department who is responsible, directly or indirectly, for the supervision of educational programs for children with disabilities. Project Diversity is a program to advance equity and access goals for colleges and universities. My duties as the Coordinator of Project Diversity do not involve any policy or procedure which could be the subject of the present appeal, and I am not involved in any way with the supervision of school districts. Similarly, my prior positions in the State Education Department, as Assistant to the Deputy Commissioner for Higher and Professional Education, Assistant to the Commissioner, and Assistant Commissioner for Policy Analysis and Program Accountability did not involve any matter which is part of this appeal. In view of the foregoing, I find that there is no basis in law for petitioners' objection to me serving as the State Review Officer because I am an employee of the State Education Department.

Petitioners' second objection to me serving as the State Review Officer is premised upon their allegation that I have purportedly discussed with the hearing officer another case while it was pending before me. Petitioners assert that at a meeting of parents and administrators of special education held on March 24, 1994 on Long Island, the hearing officer allegedly stated that she had spoken to the State Review Officer about another case which was on appeal. They do not represent that they have any personal knowledge of the alleged statement by the hearing officer. Nevertheless, their assertion must be considered, because the State Review Officer may not have any personal, economic or professional interest in the hearing which he or she is assigned to review (8 NYCRR 279.1 [c][4]), and should avoid even the appearance of partiality in conducting State-level reviews. I have never met, or spoken to, this hearing officer, or any hearing officer about any matter. All inquiries about the review process or particular appeals are addressed by the staff of the Office of State Review, who do not discuss with me any conversations which they may have had with hearing officers, parties to an appeal or their attorneys. I find that petitioners' second objection is without merit. I will reach the merits of their appeal.

Petitioners' child, who is 16 years old, has been classified as autistic. His classification for educational purposes as autistic is not in dispute. The child participated in an infant program of the Board of Cooperative Educational Services (BOCES) until 1980, when he was enrolled in the Suffolk Child Development Center at the age of three. He remained in the program of the Suffolk Child Development Center, until the end of the 1983-84 school year. For the next four school years, the child was instructed in the James E. Allen Learning Center of the BOCES of the Third Supervisory District of Suffolk County. During the 1988-89 and 1989-90 school years, the child attended school in respondent's Otsego Elementary School where he was instructed in a self-contained special education class and received speech/language therapy and occupational therapy. While in elementary school, the child had some behavioral problems for which respondent engaged the services of a specialist in autism who had worked with the child in the Suffolk Child Development Center.

For the 1990-91 school year, respondent's committee on special education (CSE) developed a specialized seventh grade program for the child in respondent's Burr's Lane Middle School, which he attended for five periods per day. The child also received vocational training for two and half hours per day in the BOCES Manor Plains Facility, because the CSE concluded that the child would benefit from an early exposure to vocational training. In January, 1991, the CSE at petitioners' request amended the child's individualized education program (IEP) to increase the amount of the child's speech/language therapy and to provide him with instruction in reading and writing. Although petitioners had also requested that respondent's vocational coordinator be replaced, petitioners apparently withdrew their request. The child reportedly encountered difficulty in the BOCES career exploratory program, where he was in an electrical assembly class. His participation in the BOCES program was reduced to one hour per day, at the end of January, 1991. Respondent's vocational coordinator arranged a work program for the child in the office of the middle school, where he made copies of documents and performed other office tasks with the assistance of an individual aide.

During the 1991-92 school year, the child was enrolled for the eighth grade in respondent's West Hollow Middle School, where he was mainstreamed in mathematics, art, technology, and home and careers, and received special education instruction for three periods per day. The child continued to attend the BOCES Manor Plains program for one hour per day, and continued to have the assistance of an individual aide. In the BOCES program, the child was again in an electrical assembly class, but with a different teacher than in the previous year, and was briefly in a horticulture class. A BOCES psychologist and respondent's autism consultant assisted the BOCES teachers in addressing the child's behavioral and management needs. Respondent's vocational coordinator arranged a work program for the child in the middle school library.

The record reveals that the child remained in the eighth grade for the 1992-93 school year in the West Hollow Middle School, where he was enrolled in both regular and special education classes and received speech/language therapy and occupational therapy. A full-time individual aide was again assigned to assist the child. The child was enrolled in a culinary arts class in the BOCES Manor Plains program to obtain training in food preparation. His teacher became concerned for the child's safety in using knives to prepare vegetables. However, the CSE chairperson testified that she believed that the teacher's expectations for the child's performance precluded the possibility of the child being successful in that class. In any event, the child was temporarily removed from the culinary arts class and placed in a home economics class. In the period from December, 1992 to January, 1993, the child exhibited more significant behavioral problems at the BOCES and in the West Hollow Middle School. Respondent again sought the assistance of the autism specialist from the Suffolk Child Development Center. Although the child was briefly returned to the BOCES culinary arts class, he was withdrawn from the BOCES program in late February, 1993. Respondent replaced the child's aide with an aide who had been assigned to him during the preceding school year. Petitioners asked respondent to establish a food preparation training program for the child. Respondent's vocational education coordinator established such a program for the child in the kitchen of the middle school, in which the child assisted the kitchen staff in preparing food for students and staff.

Although the child was due to have a triennial evaluation early in 1993, the CSE chairperson agreed to petitioners' request to postpone the evaluation while the child's recent behavioral problems were being addressed. It was further agreed that the CSE chairperson would consult with the autism specialist from the Suffolk Child Development Center to identify appropriate agencies or individuals to perform the child's evaluation. The CSE chairperson also discussed the child's need to have a vocational assessment with petitioners, in order to determine whether the child has interest and skills which would be appropriate for careers other than in food preparation. The child's triennial psychological evaluation was completed in early June, 1993, by a psychologist employed by the Developmental Disabilities Institute (DDI), which the record reveals is the new name for the Suffolk Child Development Center.

The DDI psychologist reported that the child had a verbal IQ in the mildly retarded range, while his performance IQ was found to be in the average range. Although the child's full scale IQ was in the borderline range, the DDI psychologist opined that the child's performance IQ more accurately reflected the child's problem solving skills. The IQ scores which the child achieved in the June, 1993 triennial evaluation were generally consistent with the results of previous tests of his cognitive skills. The child displayed relative strength in eating and meal preparation, domestic skills, and work skills, while his overall adaptive behavior was reported to be severely delayed. The child's motor skills were reported to be in the superior range. The evaluator further reported that the child achieved grade equivalent scores of 5.2 in reading recognition, 2.1 in reading comprehension, 6.8 in spelling, and 3.9 in mathematics. The child has reportedly exhibited stereotypical behaviors, including facial twitching, body posturing, "freezing", i.e., maintaining a fixed position, and compulsive questioning, but he is reported to be easily redirected.

On June 10, 1993, the CSE recommended that for the 1993-94 school year, the child be placed in a special education class with a 12:1 child to adult ratio in respondent's High School West. The CSE failed to indicate the extent to which the child would participate in regular education programs (cf. 8 NYCRR 200.4 [c][2][iv]). However, the appropriateness of the child's educational program for the 1993-94 school year is not at issue in this appeal. The CSE further recommended that the child have the services of an individual aide, and receive individual speech/language therapy five times per week. The record reveals that in respondent's High School West, the child has been mainstreamed for instruction in art and cooking and physical education, while receiving special education instruction for courses in business communication, business mathematics and reading.

In a letter dated October 31, 1993, petitioners requested a meeting with the CSE to resolve five issues relating to their child's educational program for the 1993-94 school year. Among the issues raised by petitioners was their concern that the CSE had failed to complete a transitional plan for the child. In a letter dated November 12, 1993, petitioners requested that an impartial hearing be held. In a subsequent letter dated November 22, 1993, petitioners identified 11 issues to be resolved at the hearing. Three of the eleven issues involved requests by petitioners that respondent replace the child's coordinator, vocational coordinator, and job coach. They also requested that the child's teachers meet with petitioners on a monthly basis, and that the child's aide be present at all staff meetings. They further requested that all testing of the child be done only on school premises and in the morning, and that such testing be done only by individuals whom petitioners had approved.

On November 23, 1993, the CSE agreed to provide an aide and transportation for the child to participate in extra-curricular activities, as petitioners had requested in their letter of October 31, 1993. The CSE also amended the child's IEP to include a statement of the child's pre-vocational needs. However, the CSE did not address the other issues raised by petitioners in their letter of November 12, 1993.

The hearing in this matter commenced on December 8, 1993. The record reveals that the parties and the hearing officer had an extensive discussion of the 11 issues identified by petitioners before the commencement of the hearing, and that the parties were able to reach agreement on all but the issues of the replacement of the child's vocational coordinator and the conditions under which the child would be tested by respondent. The hearing reconvened on December 17, 1993, and was concluded on February 4, 1994.

In a decision dated March 23, 1994, the hearing officer held that neither Federal nor State law accords parents the right to determine the qualifications for the individuals who provide services to their children, and that there was no basis in the record for concluding that the child's vocational coordinator was unqualified to serve in that position. The hearing officer further held that there was no legal basis for petitioners to insist upon the conditions under which the child should be tested and there was no basis in the record to support any restriction upon respondent's right to evaluate the child.

Petitioners challenge the impartiality of the hearing officer on the ground that she is an attorney in a law firm which reportedly represents many school districts and that she is reportedly an officer of the New York State School Board Attorneys Association. However, there is no indication in the record that petitioners raised the issue of the hearing officer's impartiality at the hearing, which would have afforded the hearing officer an opportunity to consider whether she should recuse herself and would have provided a record on this issue which could be reviewed (Application of a Child with a Disability, Appeal No. 94-8). Although petitioners assert that they were not advised that they could obtain a copy of the hearing officer's resume which respondent must have on file (8 NYCRR 200.2 [e][1]) and that the hearing officer failed to disclose her alleged conflicts of interests, I note that they also assert in their petition that they had discussed their reservations about the hearing officer's impartiality with respondent's superintendent of schools prior to the hearing. Notwithstanding petitioner's failure to properly raise the issue of the hearing officer's impartiality at the hearing, I have considered whether their assertions, if true, would afford a basis for concluding that the hearing officer lacked the requisite impartiality.

State regulation requires that an impartial hearing officer shall:

" ... 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]).

Petitioners do not allege that the hearing officer is an officer, employee or agent of the Half Hollow Hills Central School District or of the BOCES of which it is a component school district, nor do they identify a conflicting personal or professional interest of the hearing officer. In essence, petitioners ask that I find, as a matter of law, that school district attorneys are precluded from serving as impartial hearing officers in other school districts. The State Review Officer has previously declined to do so (Application of a Child with Handicapping Condition, Appeal No. 91-46). Effective July 1, 1993, section 4404 (1) of the Education Law was amended to require the Commissioner of Education to implement a plan by no later than July 1, 1996 to ensure that individuals employed by school districts, schools or programs serving children with disabilities not serve as hearing officers until at least two years after they terminate such employment. However, there is no evidence before me that such a plan has been prepared, and I will not speculate about the future applicability of any such plan to all school attorneys.

Petitioners also assert that the manner in which the hearing officer conducted the hearing demonstrated that she was not impartial. Upon review of the record of the hearing, I find that petitioners' assertion is without foundation. The hearing officer acted within her discretion in allowing certain school district and BOCES employees to testify out of the usual sequence, in order to minimize the disruption which their absence from school would cause. The record reveals that the hearing officer extended the child's father, who was not represented by an attorney at the hearing, considerable latitude in the presentation of his case, and fairly ruled upon the objections asserted by respondent's attorney to certain questions asked of witnesses by the child's father. With regard to petitioners' assertion that the hearing officer improperly allowed respondent's attorney to confer privately with respondent's autism consultant whom petitioners had requested to testify, I find that petitioners have not established that the alleged conversation was improper.

Petitioners also assert that the hearing officer violated their right to obtain a written decision from the hearing officer within 45 days after their request for a hearing, in accordance with Federal and State regulations (34 CFR 300.512 [a][1]; 8 NYCRR 200.5 [c][11]). Although petitioners requested a hearing in a letter dated November 12, 1993, the hearing officer did not render her decision until March 23, 1994. Respondent asserts that, in effect, petitioners waived their right to a decision within 45 days by requesting that certain witnesses be called to testify on hearing dates beyond the 45 day limit. Petitioners assert that they never waived their right to a timely decision. A hearing officer may grant specific extensions of time beyond the 45 day period at the request of either party to the hearing (34 CFR 300.512 [c]). However, such requests should be indicated on the record by the hearing officer. Although there is no evidence in the record of a request by either party for an extension, I find that such omission does not afford a basis for concluding that the hearing officer was biased, or that her decision should be annulled because it was not rendered within 45 days (Application of a Child with a Disability, Appeal No. 93-28). I will direct respondent to ensure that in the future hearing officers render their decisions within the time limit specified by Federal and State regulations.

Petitioners assert that respondent has changed their child's medically diagnosed condition of autism to "borderline retarded, moderately autistic". They further assert that portions of the child's triennial evaluation were improperly administered, or are not valid. Neither the purported change in the classification of the child's disabling condition nor the purported invalidity of the results of the child's triennial evaluation was identified by petitioners as an issue to be resolved at the hearing. With regard to the purported change in the child's classification, petitioners are apparently referring to a description of the child's learning style in his IEP, which appears to have been based upon the results of the child's triennial evaluation. That description does not alter the child's classification as autistic for educational purposes. Although petitioners specifically raised the issue of the conditions under which the child should be tested, the child's father testified at the hearing that:

"I do not accept the triennial testing of my son. However, I believe it is clear to the (CSE) chairperson that I have never disagreed with the conclusion of it ... any disagreement of me and my wife is very minor on the whole recommendation." (Transcript, pages 364-365)

Petitioners have the right to challenge the validity of any evaluation obtained by respondent, and may obtain an independent evaluation at respondent's expense, unless respondent establishes the appropriateness of its evaluation at an impartial hearing. Since petitioners did not raise the issues of the child's classification and the validity of his triennial evaluation in the hearing, and there is an inadequate basis in the record upon which to render a decision, I decline to reach the merits of either issue (Application of a Child with a Disability, Appeal No. 93-36).

Petitioners also assert that respondent violated the child's "status quo" placement by placing the child in a home economics class and withholding his vocational training. Although their assertion is not clearly articulated, they are apparently referring to the fact that the child was placed in a home economics class in respondent's High School West for the 1993-94 school year. That placement, including his home economics class, was the child's then current, or status quo, placement, when on November 12, 1993, petitioners requested an impartial hearing. Therefore, I find petitioners' assertion to be without merit (Section 4404 [4] of the Education Law).

I now turn to the two issues which were in fact raised at the hearing in this matter. Petitioners assert that the hearing officer erred in finding that the child's vocational coordinator was qualified to provide services to petitioners' child. They further assert that the vocational coordinator does not have an adequate knowledge of autism, and that she has allegedly done many things to upset the child.

The position of vocational coordinator is not required by statute or regulation. The record reveals that the individual to whom petitioners object is a certified social worker, a certified school social worker, and a certified special education teacher. After employment as a social worker and teacher in New York City, where she provided services to children with different disabilities, the individual began to work in 1993 as a social worker for respondent. Initially, she counselled children with disabilities. Thereafter, she began working with BOCES vocational teachers who were providing instruction to children with disabilities. The individual became the coordinator of respondent's "special work program", which is a vocational education program for children with disabilities. Her supervisor testified that the vocational coordinator participates in respondent's group counseling program, supervises job coaches and evaluates work sites. However, the vocational coordinator has no responsibility to interact with children or their parents on a daily basis, nor does she conduct vocational assessments.

I find that there is no evidence in the record to support petitioners' assertion that the vocational coordinator has upset their child. Notwithstanding petitioners' perception that the vocational coordinator has been extensively involved in the child's education, the coordinator testified that she has played a limited role, consistent with her duties as respondent's vocational coordinator. I further find that there is no basis to conclude that the coordinator is not qualified for her position. Respondent's administrator of pupil personnel services testified in the hearing that the vocational coordinator is qualified to perform her duties, and that when appropriate, the coordinator can obtain assistance from individuals who are specialists in autism. Indeed, the record demonstrates that respondent has engaged the services of a consultant to assist its staff in dealing with petitioners' child. It is important to note that respondent's CSE is responsible for recommending an appropriate educational program, including a vocational program, in the child's IEP, and that petitioners may seek appropriate changes in the child's vocational program through the CSE.

Petitioners have not explicitly appealed from the hearing officer's finding that respondent's selection of persons to evaluate the child is not subject to petitioners' approval. Boards of education have the right to select individuals or institutions to evaluate children with disabilities (Vander Malle v. Ambach, 673 F. 2d 49 [2nd Cir., 1982]; Rettig v. Kent City School District, 720 F. 2d 466 [6th Cir., 1983]; DuBois v. Connecticut State Board of Education, 727 F. 2d 48 [2nd Cir., 1984]). However, respondent's CSE must consider any evaluation information which petitioners wish to submit (8 NYCRR 200.5 [a][1][v]), and petitioners may obtain an independent evaluation at respondent's expense, subject to respondent's right to initiate a hearing to demonstrate that its evaluation is appropriate (8 NYCRR 200.5 [a][1][vi]).

Petitioners do dispute the hearing officer's finding that the record was devoid of evidence supporting the need to place restrictions of location or time upon the child's evaluation. They assert that the hearing officer never asked them to provide evidence about their child's disability, which they characterize as a neurological condition, and that the hearing officer refused to allow them to place the results of the child's private neuropsychological evaluation in the record. Petitioners ask that I consider two brief medical opinion letters written in 1981 and 1982, a neurological evaluation completed in 1983, and the neuropsychological evaluation, which is dated January 25, 1994, although none of the documents was in the record before the hearing officer. Documentary evidence not presented at a hearing may be considered in an appeal from the hearing officer's decision if such evidence was unavailable at the time of the hearing or the record would be incomplete without the evidence (Application of a Child with a Disability, Appeal No.93-22). All but the 1994 neuropsychological evaluation were clearly available before the hearing commenced. The neuropsychological evaluation was completed approximately one week before the last day of the hearing. Although there is no evidence in the record to support petitioners' assertion that the hearing officer precluded them from introducing into evidence the report of such evaluation, I have determined that the 1994 neuropsychological report and the 1981, 1982 and 1983 documents must be considered in this appeal in order to have a complete record.

Petitioners assert that the documents which they have submitted establish that the child has apraxia, and that such condition causes the child to suffer from anxiety when unusual events take place. However, the brief statement of the child's medical condition in 1982 is the only document which even refers to the child having infantile apraxia. There is nothing in the record to establish that the child still has infantile apraxia, or what, if any, significance such a condition would have upon the child's ability to be accurately evaluated. State regulation requires that test and other assessment procedures have been validated for the specific purpose for which they are used (8 NYCRR 200.4 [b][4][i][b]), and that tests are administered to children with impaired sensory, manual or speaking skills in such manner that the tests accurately reflect whatever they purport to measure, rather than reflecting their impaired sensory, manual or speaking skills (8 NYCRR 200.4 [b][4][iii]). In the absence of any evidence to the contrary, I find that the hearing officer correctly found that there was no basis for requiring that the child be evaluated only on school premises and only in the morning. I have considered petitioners' other assertions, and find them to be without merit.

THE APPEAL IS DISMISSED.