94-028

Petitioner's child is 18 years old. In March, 1991 the child sustained multiple trauma, including severe head injury, in an automobile accident. He has been a patient of the Crouse Irving Memorial Hospital since July, 1992. In May, 1994, the child was evaluated by a physician who opined that the child had a post-traumatic brain injury with resultant persistent vegetative state. Although neither the child's classification nor his educational program is directly involved in this appeal, a brief summary of the child's involvement with the CSE is necessary to understand the present dispute between the parties.

In April, 1992, respondent's CSE recommended that the child be classified as other health impaired. The CSE also recommended that he receive special education, as deemed appropriate, and various special services including speech/language therapy, physical therapy and occupational therapy, provided that such services did not interfere with the child's medical care. Respondent arranged to have the child's special education provided by the Board of Educational Cooperative Services of Onondaga-Cortland-Madison Counties (BOCES). A BOCES teacher began to provide special education to the child in August, 1992. At least some of the recommended special services were reportedly provided by the staff of the hospital.

In November, 1992, petitioner requested that an impartial hearing be held because of respondent's alleged failure to provide the child with the special services listed in his individualized education program (IEP). An impartial hearing in the matter was held in April, 1993. The hearing officer found that the child's IEP lacked sufficient information to allow the individuals who were to provide services to plan appropriate programs and activities for the child, and he directed the CSE to prepare a new IEP for the 1993-94 school year.

Petitioner appealed from the hearing officer's decision. His appeal was sustained in Application of a Child with a Disability, Appeal 93-34, dated August 26, 1993, in which respondent's CSE was found to have failed to make a recommendation for the child's classification and program within the time limit specified within 8 NYCRR 200.4 (c). Respondent was held to be responsible for the child's loss of services caused by the unilateral termination of the BOCES teacher's services in December, 1992. Although petitioner's claim for compensatory services was not sustained, respondent's CSE was directed by the State Review Officer to recommend such additional service as would address any deficiency caused by respondent's failure to ensure that services were provided.

In a letter dated September 14, 1993, the CSE chairperson notified petitioner that the CSE would meet with petitioner on September 23, 1993, pursuant to the State Review Officer's decision. The CSE chairperson's letter failed to disclose the names of the individuals who were expected to attend that CSE meeting, as is required by 8 NYCRR 200.5 (a)(3). The CSE chairperson acknowledged in her testimony that the notice provided to petitioner did not comply with the State regulation, but asserted that respondent has revised its practices so that such notices now list the expected participants in CSE meetings.

Respondent's then attorney was one of the participants in the September 23, 1993 meeting. Immediately prior to the CSE meeting the CSE chairperson informed respondent's then attorney that the CSE's secretary, who usually took the notes upon which the meeting minutes were based, had expressed concern about having to do so for this meeting. The attorney volunteered to take notes of the issues discussed, and to prepare the CSE minutes. At the CSE meeting, petitioner's lay advocate objected to respondent's then attorney attending the meeting. However, petitioner subsequently agreed to allow the attorney to be present at the meeting. According to the minutes of the CSE meeting which the attorney prepared, the CSE discussed the child's physical condition and the educational services which he had received. The CSE agreed to provide the services outlined in the child's IEP for the 1992-93 school year, while using the annual goals and objectives from his IEP for the 1993-94 school year. It was also agreed that a neurological psychological evaluation of the child would be conducted, after which the CSE would reconvene to discuss the results of the evaluation. Respondent's then attorney appended a note at the end of the minutes, in which she accused petitioner's lay advocate of abusive, harassing, intimidating and unprofessional conduct.

In his petition, petitioner asserts that he did not receive a copy of the minutes of the September 23, 1993 CSE meeting, although he customarily received copies of CSE minutes by mail. On December 22, 1993 petitioner discovered that a copy of the CSE meeting minutes for the September 23, 1993 meeting were in his child's educational records. In a letter to respondent's superintendent of schools dated December 22, 1993, petitioner requested that a "superintendent's hearing" be held for the purpose of removing the CSE minutes from the child's file because they were allegedly inaccurate and fraudulent. The Family Educational Rights and Privacy Act (FERPA), 20 USC 1232 g, accords parents the right to challenge the accuracy of their children's educational records. If the matter cannot be resolved informally, a parent has the right to a hearing (34 CFR 99.21). In a letter dated September 29, 1993 the superintendent acknowledged receipt of petitioner's request for a hearing, and asked petitioner to complete a form providing certain information about his complaint, in accordance with respondent's policy implementing FERPA.

There is no evidence in the record that petitioner complied with the superintendent's request. Instead, in a letter to the CSE chairperson, dated January 25, 1994, petitioner requested that an impartial hearing under the Individuals with Disabilities Education Act,(IDEA), 20 USC 1400 et seq, be held to address the alleged failure of the superintendent to conduct a FERPA hearing. Thereafter, petitioner and the superintendent of schools exchanged a series of letters with regard to petitioner's FERPA complaint and the superintendent's request that petitioner provide certain information. The superintendent conducted a FERPA hearing on February 15, 1994. He rendered his decision in the matter on March 2, 1994. The superintendent found that the minutes prepared by respondent's then attorney were an accurate summary of the CSE meeting, but directed that the last paragraph referring to the alleged conduct by petitioner's advocate should be deleted from the minutes. Although Federal regulation requires that a school district which has found that a challenged record is not misleading or inaccurate must afford the parent the right to place a statement in the child's record stating why he or she disagrees with the district's decision (34 CFR 99.21 [b][2]), petitioner acknowledged at the hearing that he had not done so.

With regard to petitioner's request of January 25, 1994 for an impartial hearing, the record reveals that petitioner and respondent agreed that the first person on respondent's list of hearing officers could not be appointed because he was an employee of the BOCES which had previously provided services to the child. The next hearing officer on respondent's list was appointed on February 8, 1994, and a hearing was scheduled to be held on February 18, 1994. On the date of the scheduled hearing, petitioner challenged the hearing officer's impartiality because he was a CSE chairperson of a neighboring school district. In response, the hearing officer recused himself. On March 8, 1994, respondent appointed another hearing officer. However, that hearing officer withdrew from the proceeding on March 14, 1994, the date set for the hearing to commence. On March 22, 1994, respondent appointed yet another hearing officer, and the hearing was scheduled to commence on March 28, 1994.

On or about March 24, 1994, petitioner commenced an appeal to the Commissioner of Education, pursuant to Section 310 of the Education Law, in which he asserted that respondent had failed to ensure that a hearing officer's decision be rendered within 45 days after his January 25, 1994 request for a hearing, as required by Federal and State regulations (45 CFR 300.512 [a]; 8 NYCRR 200.5 [c][1]). Although the Commissioner found that respondent had acted in good faith in attempting to schedule a hearing, he directed respondent to immediately provide petitioner with a copy of the hearing officer's decision (Application of a Child with a Disability, 33 Ed. Dept. Rep. 711). However, the record reveals that the Commissioner's Counsel was subsequently apprised that the hearing had not been concluded, as had been implicit in the Commissioner's decision. The Commissioner's Counsel advised petitioner and respondent that the Commissioner had not intended to require the hearing officer to render a decision before the hearing had ended.

Another disagreement arose between the parties before the hearing in this proceeding commenced. In a letter dated February 1, 1994 and received by the CSE on February 3, 1994, petitioner asked to meet with the CSE to discuss whether his child's IEP should be amended to provide for the child's use of a wheelchair. A CSE meeting which was to have been held on February 28, 1994, was canceled, because respondent's school physician could not attend the meeting. Thereafter, the meeting was scheduled to be held on March 10, 1994. However, that meeting was also canceled, because the physician was unable to attend due to a death in his family. The CSE did meet with petitioner on March 29, 1994.

On March 10, 1994, petitioner requested that an impartial hearing be held because of the CSE's alleged refusal to meet with him in a timely fashion. On March 21, 1994 the CSE chairperson acknowledged receipt of petitioner's hearing request. She advised petitioner that respondent would seek to have the hearing officer who had been appointed to consider petitioner's claim about the September 23, 1993 CSE minutes also consider petitioner's second claim about the alleged denial of his right to a timely CSE meeting.

When the hearing in this proceeding began on March 28, 1994, respondent's attorney asked the hearing officer to accept jurisdiction for the two issues separately raised by petitioner in his two requests for hearings. Petitioner objected to the request, on the ground that he had not had an adequate opportunity to examine his child's records, and to prepare for a hearing on the second issue. He also alluded to his inability to have had certain witnesses subpoenaed. The hearing officer offered to adjourn the hearing and to issue a subpoena for any witness who did not voluntarily appear, if requested by petitioner, but ruled that he would take jurisdiction over both issues.

In response to questions by petitioner and his lay advocate, the hearing officer disclosed that he was an attorney who represented the Vestal Central School District on a monthly retainer basis, and that he was a member of the New York State Association of School Attorneys Association. He also revealed that he had conducted two other impartial hearings in which respondent's attorney had represented other school districts. Petitioner requested that the hearing officer recuse himself on the ground that he represented a school district. The hearing officer declined to do so.

The hearing continued on April 13, 1994, April 26, 1994 and July 30, 1994. In his decision of August 19, 1994, the hearing officer held that petitioner was barred from pursuing the issue of the accuracy of the minutes of the CSE meeting of September 23, 1993 in that proceeding because petititioner had previously exercised his right to challenge the accuracy of the minutes in the FERPA proceeding. He premised his decision upon the legal doctrine of election of remedies, which generally precludes a litigant from pursuing two different forms of proceeding to vindicate the same right, when the remedies are inconsistent or mutually exclusive (Siderpali, S.P.A. v. Judal Industries, Inc., 833 F. Supp. 1023 [S.D.N.Y., 1993]). In addition, the hearing officer held that an impartial hearing was not the appropriate forum in which to challenge the accuracy of the CSE minutes. The hearing also held that respondent's then attorney could lawfully attend the September 23, 1993 CSE meeting.

With regard to the issue of the timeliness of the CSE's meeting of March 29, 1994 in response to petitioner's request for a meeting made on February 1, 1994, the hearing officer rejected petitioner's contention that 34 CFR 300.343 (c) required that the CSE hold its meeting within 30 days after petitioner's request, or that any State regulation mandated that result. The hearing officer found that respondent had offered a reasonable explanation for the cancellation of the meetings scheduled to be held on February 28 and March 10, 1994, i.e., the school physician could not attend such meetings.

Petitioner challenges the hearing officer's refusal to recuse himself in this proceeding. He asserts that the hearing officer, as a school attorney, has a professional interest in any decision which could also be applied against the interests of his school district client.

In relevant part, State regulation provides 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 279.1 [s][1]).

Petitioner does not assert that the hearing officer was an employee of respondent, or of the BOCES of which respondent is a component. In essence, petitioner asks that I find, as a matter of law, that attorneys who have school district clients are precluded from serving as impartial hearing officers. The State Review Officer has previously declined to do so (Application of a Child with Handicapping Condition, Appeal 91-1; Application of a Child with Handicapping Condition, Appeal No. 91-46; Application of a Child with a Disability, Appeal No. 94-12). 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.

Petitioner asserts that the hearing officer unfairly granted respondent's request to consider both of petitioner's claims with regard to the minutes of the September 23, 1993 CSE meeting and the timeliness of the March 29, 1994 CSE meeting in this proceeding. He further asserts that he was deprived of his choice of counsel by the hearing officer's failure to issue a subpoena for the attendance of petitioner's lay advocate for the first day of the hearing, and that he was denied an opportunity to secure evidence from a key witness. I find that each of petitioner's assertion is without merit. Petitioner's two claims, while not arising out of the same set of facts should nevertheless have been easily considered in a single proceeding without undue delay. At the hearing held on March 28, 1994, evidence was taken only with regard to the first issue, and the hearing was then adjourned until April 13, 1994. The adjournment provided petitioner with adequate time to prepare for the presentation of the second issue when the hearing resumed. In the absence of any showing of harm to petitioner as a result of combining the two issues in a single hearing, I find that the hearing officer acted well within his authority by granting respondent's request to consolidate the two matters.

State regulation permits the parties to be represented at a hearing by attorneys or individuals with special knowledge or training regarding students with disabilities (8 NYCRR 200.5 [c][5]). State regulation also authorizes a hearing officer to issue subpoenas in connection with the administrative proceedings before him or her (8 NYCRR 200.5 [c][1]). However, subpoenas are to be issued to compel the attendance of witnesses at hearings. Petitioner's lay advocate did not testify until the last day of the hearing, approximately four months after March 28, 1994, the day for which the advocate did not receive a subpoena. As petitioner and his lay advocate candidly admit in the petition, they sought a subpoena for the lay advocate to attend the hearing as his advocate, because the advocate's employer would not let her attend the hearing without a subpoena. Under the circumstances, I find that petitioner was not entitled to receive a subpoena for such purpose.

Petitioner also sought a subpoena for the secretary of the CSE. On April 26, 1994 the hearing officer read into the record a letter which he had received from the CSE secretary's attending physician, who indicated that the secretary was being treated for a significant illness and was unable to attend the hearing. Petitioner sought to have the secretary testify about the minutes of the September 23, 1993 CSE meeting. However, I find that the secretary's testimony was not necessary, because the issue which petitioner wished to present was not properly before the hearing officer, as will be discussed below.

Petitioner asserts that the hearing in this proceeding was delayed because of respondent's policies with regard to the selection of hearing officers and the scheduling of hearings. He refers to a previous decision of the State Review Officer in which respondent was directed to ensure that hearing officers are promptly appointed by respondent (Application of a Child with a Disability, Appeal No. 93-47). I find that petitioner is precluded from raising the issue because it was the subject of his appeal to the Commissioner of Education, in which a decision has been rendered. He may not re-litigate the issue in this proceeding.

At the hearing in this proceeding, petitioner sought to persuade the hearing officer that the CSE minutes which had been prepared by respondent's former attorney should be removed from the child's records because the document was inaccurate, inadequate and reflected a biased viewpoint of what had occurred at the September 23, 1993 meeting, and because the attorney was not authorized to prepare the minutes. However, the hearing officer found the petitioner could not raise these issues because he had elected his remedy of proceeding with the FERPA hearing before the superintendent of schools. An election of remedies presupposes the petitioner could have his claims determined in either a hearing held pursuant to FERPA or a hearing held pursuant to IDEA. I find that petitioner was limited to his FERPA remedy.

IDEA provides for impartial hearings and State-level reviews in matters relating to the identification, evaluation or educational placement of children, or the provision of a free appropriate public education (20 USC 1415 [b][c]). However, a separate portion of the statute, 20 USC 1417 (c), requires the United States Secretary of Education to promulgate regulations for the protection of the rights and privacy of parents and students in accordance with the provisions of FERPA. The relevant Federal regulations under IDEA (34 CFR 560-575) prescribe a specific procedure for challenging student records which are considered by their parents to be inaccurate or misleading. That procedure parallels the procedure to be followed under FERPA. Indeed, the relevant IDEA regulation (34 CFR 300.570) expressly provides that hearings for this purpose are to be conducted according to the procedures set forth in 34 CFR 99.22, i.e., the FERPA regulation. Therefore such hearings are not conducted under the regulations governing IDEA hearings (34 CFR 300.506-508). If, after a hearing, a board of education declines to amend a child's records, the child's parents have the right to place in the child's records a statement disagreeing with the decision (34 CFR 300.569 [b]). However, there is no State-level review of a decision made after such a hearing. A party may file a complaint with the Family Policy Compliance Office of the U.S. Department of Education, pursuant to 34 CFR 99.63.

Whether petitioner challenges the CSE minutes as inaccurate or invalid because the attorney prepared them, he does so because he wishes to have the document removed from his child's record. Neither the hearing officer nor I could grant the relief which petitioner seeks (Matter of Reninger, 23 Ed. Dept. Rep. 27; Application of the Bd. of Ed. City School District of the City of New York, 25 id. 214; Application of a Child with a Handicapping Condition, 28 id. 19; Application of a Child with a Disability, Appeal No. 94-9).

The last issue to be addressed is whether the hearing officer erred in finding that respondent had not violated Federal or State regulations when it did not hold a CSE meeting within 30 days after petitioner requested a meeting. Federal regulation does not impose an explicit time limit for convening a CSE meeting for a child who has previously been classified as having a disability, but does require that a school district grant any reasonable request for such a meeting (34 CFR Part 300, Appendix C, Question 11). However, State regulation requires that when a child with a disability has been referred to a CSE, the latter shall make its recommendation within 30 days (8 NYCRR 200.4 [c]). The term "days" means school work days (8 NYCRR 200.1 [m]). The record is inadequate to permit me to determine when the thirtieth school work day after respondent received petitioner's request occurred. However, I concur with the hearing officer's finding that respondent offered a reasonable explanation for its delay in not holding the CSE meeting until its physician could attend.

I have considered petitioner's other assertions, which I find to be without merit.

THE APPEAL IS DISMISSED.