94-039

        This proceeding is the latest chapter in a long and fractious disagreement between petitioner and respondent concerning the child's education, about which petitioner and her child have filed an action in the United States District Court for the Southern District of New York against various school district officers and the Commissioner of Education. Although the issues presented in this appeal are fairly narrow, a brief review of the tangled history of the parties is necessary in order to understand the context in which the hearing in this proceeding was initiated.

        Petitioner's son is 19 years old. He was initially identified by the CSE as a child with an educational disability in 1990, when he was in the ninth grade. The child was classified as other health impaired. He has been diagnosed as having a form of epilepsy, which reportedly affects his personality and behavior more than his motor functioning. The child's persistent health problems reportedly precluded him from attending classes on a regular basis while in elementary and junior high school. In any event, the child's classification as other health impaired is not in dispute in this proceeding.

        The child had received instruction at home because of health concerns from sometime in 1986 through the 1988-89 school year. He returned to school for the 1989-90 school year. When it recommended that the child be classified as other health impaired in May, 1990, the CSE also recommended that the child receive two periods per day of resource room services and three hours per day of instruction at home. The parties thereafter entered into a stipulation concerning the service which respondent would provide for the child during the Summer of 1990.

        In September, 1990, an impartial hearing was begun at petitioner's request to review respondent's alleged breach of the stipulation. Thereafter, the parties agreed that the child would be further evaluated and that the CSE would prepare the child's individualized education program (IEP) for the 1990-91 school year. In November, 1990, the CSE recommended that the child receive instruction at home for one period per day and that the remainder of his instruction be provided in respondent's high school.

        The hearing was resumed in November, 1990, and continued through November, 1991. In a decision dated February 4, 1992, the hearing officer denied respondent's request for an order that the child be declassified because respondent could not disavow the recommendation of its CSE that the child be classified as other health impaired. The hearing officer found that the child's IEP for the 1990-91 school year was appropriate, but he directed that the child attend a different high school than that which the CSE had recommended.

        In March, 1992, petitioner appealed from the hearing officer's decision to the State Review Officer, who found that the child's IEP for the 1990-91 school year was fatally flawed because none of the child's teachers attended the CSE meeting, as required by Federal and State regulation (Application of a Child with a Handicapping Condition, Appeal No. 92-18). The State Review Officer declined to remand the matter to the CSE for the purpose of preparing a new IEP for the 1990-91 school year, which had ended approximately nine months before his decision. Petitioner's assertions about the manner in which the hearing officer had conducted the lengthy hearing were found to be without merit by the State Review Officer. Petitioner did not seek judicial review of the State Review Officer's decision.

        At petitioner's request, another impartial hearing was commenced in February, 1992 and concluded in March, 1992. The subject of that hearing was the CSE's recommendation, made on January 14, 1992, that the child be declassified. In his decision dated April 24, 1992, the hearing officer held that the CSE's recommendation was invalid because the child's teacher did not attend the CSE meeting of January 14, 1992; complete academic reports and current medical reports were not present for the CSE to consider; the child had not been observed in class; and there was no record of the extent of parental participation in the process used by the CSE to make its recommendation. The hearing officer remanded the matter to the CSE, with the direction that it reconvene to consider the child and review his IEP for 1991-92 school year. Respondent did not appeal from the hearing officer's decision.

        The record does not reveal whether the CSE reconvened pursuant to the hearing officer's decision. Although there was no testimony taken at the hearing in this proceeding, petitioner and respondent informed the hearing officer that the child had not received any educational services from respondent since August, 1992. Respondent's attorney represented that respondent had offered to educate the child in its high school, but the parties have apparently not been able to agree upon the provisions of the child's IEP.

        In July, 1993, petitioner and the child commenced their Federal Court civil rights action for compensatory and punitive damages, as well as declaratory and injunctive relief. The gravamen of their complaint is that school district officials "unilaterally terminated" the child's instructional program at home thereby excluding him from receiving the educational program to which he was entitled under Federal law. They asserted that the defendants had violated their rights under Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. ' 794), as well as their right of freedom of speech and association under the First and Fourteenth Amendments to the U.S. Constitution. In their complaint in the Federal Court action, petitioner and her son alleged that respondent had refused to comply with the hearing officer's order that the CSE reconvene to review the child's IEP.

        In January, 1994, portions of petitioner's voluminous complaint in the Federal Court action were dismissed. However, the court declined to dismiss the complaint because of petitioner's alleged failure to exhaust her administrative remedies under Federal and State education statutes. In a memorandum decision dated May 3, 1994, the court dismissed with prejudice petitioner's First Amendment claim as against the Commissioner of Education, and dismissed her personal cause of action under Section 504 against the school district defendants, with leave to replead that cause of action.

        Petitioner's son remained without education services during the 1993-94 school year. In a note dated November 24, 1993, the child's neurologist stated that the child was under his care for an underlying seizure disorder. The neurologist opined that the child required instruction at home because of his seizure disorder. He further opined that the child should be given twenty-four hours to complete school tests because the child needed time to recuperate after having a seizure. In November, 1993, petitioner requested that another impartial hearing be held. However, the attorneys for the parties in the Federal Court action reportedly agreed that a CSE meeting should be held, in lieu of a hearing. Although the CSE reportedly met on December 14, 1993, petitioner asserted at the hearing in this proceeding that the CSE was invalidly constituted because the child's teacher was absent. There is no evidence in the record before me of any action taken by the CSE at the reported meeting.

        In a letter dated December 23, 1993, respondent's Coordinator of Special Education informed the child's parents that she would ask respondent to appoint an impartial hearing officer to conduct a hearing. The purpose of the hearing was to obtain an order directing the parents to authorize the child's neurologist to provide the district with copies of all test results upon which he had relied in reaching the opinions set forth in his note of November 24, 1993, and to discuss his opinions with respondent's school physician. The coordinator indicated that she would also request that the hearing officer order the child to submit to an examination by a neurologist selected by respondent.

        The hearing began on February 25, 1994. In colloquy with the hearing officer and respondent's attorney, petitioner questioned the procedure by which the hearing officer was selected, and asserted that the relief sought by respondent was precluded by the pendency of the Federal Court action. The hearing officer adjourned the hearing to afford the parties an opportunity to submit information in support of their respective positions. The hearing reconvened on March 29, 1994, but no resolution of the issues was reached, because the parties agreed to confer with their respective attorneys in the Federal Court action about the relationship, if any, between the relief sought by respondent in this proceeding and the Federal Court action. The hearing was resumed on July 1, 1994. The hearing officer denied petitioner's motion that he recuse himself. He stated that he would not order that the child be examined by respondent's neurologist, but that he would direct petitioner to ask the child's neurologist to make his relevant records available to respondent, and would direct the CSE to meet as soon as practicable after receipt of the neurologist's records. The parties then agreed that petitioner would ask the neurologist to confirm that he had based his opinion upon the information set forth in certain documents which were identified at the hearing as petitioner's exhibit 6.

        In his decision dated October 6, 1994, the hearing officer found that the pending Federal Court action did not preclude his consideration of the issues raised by respondent. He noted that the parties had appeared to have resolved their disagreement about respondent's request for information from the child's neurologist, and directed the CSE to meet for the purpose of making an appropriate determination about the child's educational needs.

        Petitioner contends that the hearing officer had no jurisdiction to consider respondent's request for orders because the conditions under which a hearing can be initiated did not exist. She relies upon the provisions of 8 NYCRR 200.5 (c), which provide that a child's parent or legal guardian may request that an impartial hearing be held to review a CSE's recommendation, a CSE's failure to make a recommendation, or a board of education's failure to effectuate a CSE's recommendation. Petitioner points out that she did not request that the hearing be held, and that there was no CSE recommendation to be reviewed. Although State regulation does authorize a board of education to initiate a hearing to obtain authorization to initially evaluate a child without parental consent (8 NYCRR 220.5 [b][2]), or to initially place a child in a special education class without parental consent (8 NYCRR 200.5 [b] [3]), I find that neither provision applies in this case because this does not involve an initial evaluation or placement. However, the State regulatory provisions are not dispositive of the matter. The relevant Federal regulation, 34 CFR 300.506 (a), provides that either a parent or a public educational agency may initiate a hearing with regard to the initiation or change in the identification, evaluation or educational placement of the child, or the provision of a free appropriate public education to the child. Nevertheless, I must find that respondent has failed to demonstrate that its Coordinator of Special Education's request for a hearing comes within the terms of the Federal regulation. Any change in the identification, evaluation or educational placement of a child with a disability in New York State would have to be initiated by a CSE (Section 4402 [2][b][2] of the Education Law). There is no evidence of any action by respondent's CSE in the record before me which would afford a basis for the Coordinator's request. Accordingly, I find that there was no basis for the hearing to be initiated.

        Although my finding that there was no jurisdictional basis for the hearing is dispositive of this appeal, I must also find that respondent did not comply with the State statutory requirement that it appoint a hearing officer for the hearing in this proceeding from a list of State certified hearing officers which it must maintain. Section 4404(1) of the Education Law provides, in material part, that:

"If the recommendation of the committee on special education is not acceptable to the parent or person in parental relationship of a child, or if the committee or board of education or trustees fails to make or effectuate such a recommendation within such periods of time as may be required by regulations of the commissioner, such parents or persons in parental relationship shall notify the board of education of this situation and 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. Individuals so appointed by a board of education shall be selected from a list of available hearing officers who have successfully completed a hearing officer training program conducted by the department according to a rotation selection process prescribed in regulations of the commissioner..."

        The Regulations of the Commissioner of Education require that each board of education maintain a list of hearing officers available to serve in the district "... from which the district shall select the first available hearing officer" (8 NYCRR 200.2[e][1]).

        At the hearing in this proceeding, respondent submitted a copy of the minutes of its meeting on December 20, 1993, at which respondent appointed three individuals to serve as hearing officers "... in District Special Education hearings." The resolution which respondent adopted did not purport to appoint any hearing officer to conduct a specific hearing. Respondent's attorney represented that the hearing officer in this proceeding had been selected by the Superintendent of School's office. I find that such practice did not comply with the statutory requirement that the board of education "appoint an impartial hearing officer to hear the appeal". Respondent's attorney subsequently offered a copy of the minutes of respondent's executive session of February 28, 1994, at which respondent appointed the hearing officer for this proceeding. Respondent's action occurred three days after the hearing had commenced. Moreover, respondent offers no authority for the proposition that such appointments can be made in executive session (cf. Section 1708[3] of the Education Law; Section 105 of the Public Officers Law). Therefore, I find that the hearing officer in this proceeding was not validly appointed.

        In view of my findings that there was no basis for holding the hearing in this proceeding and that the hearing officer was not validly appointed, I do not reach the other issues which petitioner raises in this appeal. However, I share the hearing officer's concern about the fact that the child has not received instructional services from respondent since August, 1992. Although the Federal Court will determine whether the rights of petitioner and the child have been violated, and the appropriate remedies, if any, respondent has the obligation to prepare child's IEP for the 1994-95 school year (Town of Burlington v. Department of Education, Massachusetts, 736 F. 2d 733 [1st Cir., 1984], aff'd 471 U.S. 359 [1985]; Norma P. v. Pelham Sch. Dist., 19 IDELR 938 [U.S. D.C. N.H., 1993]). Respondent must have current evaluative date to prepare the child's IEP (34 CFR 300.534 [b]; 8 NYCRR 200.4 [e][4]). Petitioner and her son must cooperate with the CSE, so that the latter can obtain sufficient information about the child's present needs to prepare an appropriate IEP (Tucker v. Bayshore UFSD, 873 F. 2d 563 [2nd Cir, 1989]).

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the decision of the hearing officer is annulled.