95-029

Petitioner appeals from the decision of an impartial hearing officer which denied petitioner's request for an order compelling respondent to hold a hearing pursuant to Section 504 of the Rehabilitation Act of 1973 (29 USC 794), and which denied a second request by petitioner for an order requiring respondent to reimburse petitioner for five hours of private tutoring which she obtained for her child. The appeal must be dismissed.

At the outset, I note that respondent, through its attorney, has chosen not to submit an answer to the petition in this appeal, but will rely upon the record and the hearing officer's decision. In accordance with the provisions of 8 NYCRR 279.3, the statements set forth in the petition will be deemed to be true.

Petitioner's son will be ten years old next month. The child has been classified as speech/language impaired by respondent's committee on special education (CSE). The child's classification as speech/language impaired is not in dispute. When the hearing in this proceeding began on October 13, 1994, the child had never been educated in respondent's schools, despite having been found by the CSE to be eligible to receive special education in 1992. In January, 1995, the child was enrolled in a self-contained special education class in respondent's Kinry Road Elementary School. His placement in that class is not in dispute in this proceeding.

This proceeding has its origin in a recommendation, in February, 1992, by respondent's CSE that the child be placed in a self-contained special education class in respondent's Oak Grove Elementary School, and that he receive individual and group speech/language therapy. Petitioner reportedly accepted the CSE's recommendation that her child be placed in a self-contained class and receive speech/language therapy, but challenged the appropriateness of the specific class in which the child was to be placed.

At petitioner's request, an impartial hearing was held on June 11, 1992. The hearing reconvened on July 23, 1992. Petitioner reportedly testified that she had been assured by the CSE that she would be afforded an opportunity to observe the proposed class for her child, and offered into evidence a tape recording of the CSE meeting at which such assurance was given. The tape recording was offered in lieu of testimony by a witness for petitioner who was unable to testify on July 23, 1992, because she became ill. At the hearing, petitioner reportedly asked the hearing officer to have the hearing reporter transcribe the tape recording of the CSE meeting. Respondent's attorney allegedly objected to petitioner's request, and petitioner reportedly agreed to transcribe the tape recording, and submit the transcript of the CSE's meeting to the hearing officer. However, she did not submit a transcription of the tape recording after the hearing in July, and was reportedly precluded from doing so in the Fall of 1992 because she was hospitalized.

In a decision dated November 2, 1992, the hearing officer noted that petitioner's tape recording had been admitted into evidence with the understanding that petitioner would submit a written transcript prepared from the recording, and that she had failed to do so. With regard to the issue of whether the petitioner had been promised an opportunity to observe the child's proposed class, the hearing officer found that petitioner had, in fact, been given the opportunity to see the class. He also upheld the CSE's recommendation for the child's placement in the proposed class.

In a letter to the Office of State Review, dated November 5, 1992, one of petitioner's other children sought, on behalf of his mother, to obtain an extension of the 40 day deadline for serving a petition to seek review of the hearing officer's decision (see 8 NYCRR 279.2 [b]), on the ground that petitioner was ill and could not meet the deadline. By letter of November 12, 1992, a representative of the Office of State Review advised petitioner's son that the State Review Officer could not waive the deadline prospectively. However, he informed petitioner's son that petitioner should indicate the reason why she could not comply with the deadline, and request that her delay be excused, in her petition for review of the hearing officer's decision.

In December, 1992, petitioner's son reportedly asked the hearing officer, the hearing reporter, and respondent's attorney for assistance in obtaining copies of the transcripts for the hearings held on June 11 and July 23, 1992. In a letter to respondent's attorney, dated January 4, 1993, petitioner's son asserted that the petitioner required the transcript in order to appeal from the hearing officer's decision. At the hearing in this proceeding, it was revealed that petitioner had in fact received the transcript of the June 11 hearing, and that a copy of the July 23 hearing transcript had been sent by the court reporter to petitioner at the address of her former lay advocate, who had attended the July 23 hearing as an observer. On January 22, 1993, respondent's attorney responded to the request for a copy of the hearing transcript by suggesting that petitioner obtain her copy from her former advocate. Although petitioner's son was apparently unsuccessful in his attempt to obtain the transcript from the former advocate, there is no evidence in the record that respondent was informed of that fact. In any event, petitioner was entitled to receive a written or electronic verbatim record of the proceedings before the hearing officer (34 CFR 300.508 [a][4]; 8 NYCRR 200.5 [c][2]). I note that at the conclusion of the hearing in this proceeding, petitioner thanked the hearing officer for helping her obtain a copy of the July, 1992 hearing transcript. However, the fact that petitioner apparently did not receive a copy of the transcript of the hearing in another proceeding until well after that proceeding had ended is not relevant to the resolution of the issues presented in this appeal.

In a letter to respondent's superintendent of schools, dated June 13, 1993, petitioner asked for "a `504' Hearing as to the alleged offense and violation ... under 104.36[34 CFR 104.36]." Respondent's attorney replied to petitioner's letter to the superintendent, on July 15, 1993. The attorney asked petitioner to provide him with information about the nature of the problem to be addressed at the requested hearing. The record does not reveal whether petitioner responded to the attorney's request for information. Petitioner testified that she re-submitted her request for a 504 hearing to respondent on August 4, 1994. Respondent's 504 coordinator met with petitioner to discuss her request. In a letter to petitioner, dated August 26, 1994, the coordinator told her that a 504 hearing would not be held because the issues which petitioner wished to present at the 504 hearing were raised at the hearing held in June and July of 1992.

In a letter to respondent, dated September 1, 1992, petitioner asked for an "impartial hearing " ... in regards to the denial by your administrative staff [of] the right to due process." On September 27, 1994, respondent appointed a hearing officer to conduct a hearing pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq. [IDEA]), and Article 89 of the New York State Education Law. When the hearing convened on October 13, 1994, the hearing officer asked the parties to identify the issues which they wished to place before him. Petitioner initially acknowledged that she wanted the hearing officer in this proceeding to consider whether the hearing officer in the 1992 hearing had erred procedurally and substantively. The hearing officer advised petitioner that he lacked jurisdiction to review the first hearing officer's decision. Thereafter, petitioner asserted that the issue to be decided in this proceeding was whether respondent had violated section 504, when its 504 coordinator denied her June 13, 1993 request for a Section 504 hearing, in the coordinator's letter of August 26, 1994.

Upon ascertaining that petitioner's child had never entered respondent's schools, but was being privately tutored at home, the hearing officer directed the CSE to evaluate the child to ascertain his current educational needs, and to meet with petitioner to design an appropriate educational program and placement for the child. The hearing officer retained jurisdiction over the matter, and directed that the hearing would reconvene on November 17, 1994, if the parties were unable to reach agreement upon a new program and placement for the child. He denied petitioner's request that the hearing officer recuse himself because he would not permit petitioner to go forward with her claim about the denial of her request for a section 504 hearing in this proceeding.

The CSE met on December 14, 1994, to prepare the child's individualized education program (IEP) for the remainder of the 1994-95 school year. The CSE recommended that the child remain classified as speech impaired, and that he be instructed in all subjects, except art, music, and physical education, in a special education class with a 12:1 +1 child to adult ratio. The CSE also recommended that the child receive speech/language therapy three times per week, and that he receive an occupational therapy evaluation. The child's IEP also made provision for various testing modifications.

The parties appeared before the hearing officer on December 16, 1994. Shortly before the hearing was to resume on that day, the parties agreed to the implementation of the child's IEP. They acknowledged on the record before the hearing officer that the only matter which had not been determined was the placement, or the specific school, in which the IEP services were to be provided. The parties agreed that petitioner would observe self- contained classes in two of respondent's elementary schools, and on December 21, 1994, petitioner would advise respondent of her choice of a class for the child. In a letter, dated December 22, 1994, petitioner selected the class in the Kinry Elementary School. The child entered the class on January 9, 1995.

At the hearing held on December 16, 1994, the parties agreed that they would submit written evidence to support their respective legal arguments about the central issue in this proceeding, i.e. whether respondent violated petitioner's rights under Section 504 by denying her request for a hearing under that statute. They further agreed that the hearing would not reconvene, unless there was a disagreement about the child's placement in either of respondent's two elementary schools.

The parties appeared before the hearing officer again, on February 9, 1995, ostensibly because petitioner wished to resolve certain inconsistencies in the transcripts of prior hearings in this proceeding. Petitioner also sought to have the hearing officer determine whether respondent had violated his alleged order that petitioner's child be placed in class by no later than January 3, 1995. With regard to that matter, the record reveals that petitioner notified respondent's coordinator of special education, on December 22, 1994, that the child would begin to attend class at the Kinry Road School on January 3, 1995. By letter, dated December 23, 1995, the coordinator informed petitioner that the child would start at the Kinry Road School on January 9, 1995. Petitioner wrote a letter to the hearing officer, dated December 27, 1994, in which she asserted that there appeared to be " ... an unintentional delay in [the child] ... receiving education on January 3, 1995." She asked the hearing officer to intervene to place the child, and indicated that if he were not placed in school by that date, she would seek reimbursement for tutoring of the child. At the February 9, 1995 hearing, the hearing officer, who was informed that the child had entered school on January 9, 1995, ruled that he would not deal with petitioner's claim about the alleged delay in the child's placement.

On February 9, 1995, the hearing officer again questioned petitioner about the purpose for the hearing, and the specific relief which she sought from the hearing officer. Petitioner asserted that she sought a determination by the hearing officer that respondent had violated Section 504 by denying her request for a 504 hearing. The relief which she requested for the alleged violation was an order directing respondent to hold a 504 hearing. In response to the hearing officer's question about the purpose of the 504 hearing, petitioner asserted that the 504 hearing would afford her an opportunity to show that her child had been deprived of speech/language therapy services, previously approved by respondent, as of the date of her request for the 504 hearing in June, 1993. The relief to be obtained in the 504 hearing was an order requiring respondent to provide the child with compensatory educational services.

The hearing officer rendered his decision on April 12, 1995. In his decision, the hearing officer discussed the relationship between Section 504 and the Individuals with Disabilities Education At (IDEA). IDEA, and its State counterpart, Article 89 of the Education Law, accord the parents of children with disabilities significant procedural and substantive rights in designing the educational programs of their children. The hearing officer found that the issues which petitioner wished to litigate in the 504 hearing in 1993 were identical to the issues involved in the earlier IDEA hearing of 1992. He held that petitioner could not instigate a second, parallel, proceeding under Section 504 to relitigate the issues raised in, or by, the earlier IDEA hearing, about which petitioner should have appealed to the State Review Officer. The hearing officer denied petitioner's claim for reimbursement for tutoring services provided to her child from January 3, 1995 through January 6, 1995, on the grounds that there was no evidence that the one week delay in the child's placement had occurred because of any purposeful action by respondent, and that petitioner had failed to offer any documentary evidence to establish that she had paid the sum of money for which she asked to be reimbursed.

Petitioner argues that the hearing officer's decision should be annulled because respondent failed to prove that the hearing officer was appointed in accordance with the provisions of Section 4401 (1) of the Education Law, and because he displayed actual bias against petitioner during the hearing. On the first day of the hearing, petitioner questioned whether the hearing officer had been validly appointed. A copy of respondent's minutes of its meeting which was held on September 27, 1994 was introduced into evidence. Although petitioner now offers a copy of a letter written to her by the hearing officer on September 22, 1994, five days before he was appointed as the hearing officer, I find that such letter does not refute respondent's evidence that the hearing officer was duly appointed on September 27, 1994.

In July, 1993, Section 4404 (1) of the Education Law was amended to require that boards of education use a rotational selection system to be prescribed in the Regulations of the Commissioner of Education to appoint hearing officers (see 8 NYCRR 200.2 [e][1]). When petitioner questioned whether the hearing officer in this proceeding had been selected in accordance with the rotational selection requirement, the hearing officer directed respondent's attorney to obtain an affidavit by the District Clerk of the Wappingers Central School District explaining how the hearing officer was selected. The affidavit in question, which was introduced into evidence on the second day of the hearing, detailed the selection of the five hearing officers on respondent's list of hearing officers. The hearing officer in this proceeding ruled that the District Clerk's affidavit established that he had been appointed in accordance with the requirements of the Education Law. I concur with the hearing officer's ruling.

On the second day of the hearing, petitioner asked the hearing officer to recuse himself, on the ground that certain remarks which he had made at the hearing held on October 13, 1994 were prejudicial against petitioner. The hearing officer reviewed the remarks cited by petitioner, and then denied her request that he recuse himself.

A hearing officer must avoid even the appearance of impropriety (Application of a Child with a Handicapping Condition, Appeal No. 91-10; Application of a Child with a Disability, Appeal No. 94-8; Application of a Child with a Disability, Appeal No. 94-32). Inappropriate remarks by a hearing officer could afford a basis for finding that the hearing officer was biased. However, I find after careful review of the hearing officer's remarks mentioned by petitioner in her petition, as well as the entire record, that there is no basis for finding that the hearing officer was biased against petitioner. I expressly reject the suggestion in her petition that the hearing officer's desire to bring the issue of her child's non-attendance in school into the hearing as an issue he would address supports her allegation of bias against her. In a colloquy with the parties about the fact that the child had not attended school, despite having identified special education needs, the hearing officer remarked that:

"This is madness. We have a child here who belongs in school. We have a child here who has a right to education. We have a parent who has an obligation ... to make certain that her child receives an education, and we have a child, by anybody's reasonable measure, who is not receiving an appropriate education, correct? [Petitioner]: Correct." (Transcript, page 60)

I accept the hearing officer's explanation, which he made during the second day of the hearing, that his reference to "madness" related to the fact that the extensive procedure for ensuring that children with disabilities receive the services they need was not working in this instance. As a result of the hearing officer's intervention, the parties were able to reach agreement about an educational program and placement for the child.

Petitioner challenges the hearing officer's decision on the ground that he allegedly did not address the two issues which she had presented. The first issue involved the denial by respondent's 504 coordinator of petitioner's request for reimbursement for the tutoring which she obtained for the child during the first week of January, 1995.

In essence, petitioner argues that the hearing officer clouded the issue of her request for a 504 hearing by referring to the 1992 IDEA hearing. However, when the hearing officer asked petitioner, at the beginning of the hearing, to specify the nature of her due process complaint, and what kind of hearing had been denied to her, petitioner replied as follows:

"A 504 hearing because of an I.D.E.A. hearing that had occurred, which rights were denied during that due process." (Transcript, page 9)

Petitioner reiterated the basis for her 504 hearing request in the following colloquy with the hearing officer:

[Petitioner] "Now, I requested in June 13th, 1993 for a 504 hearing on the denial of due process under 104.36 ... Arising from not being able to go forward and have a prima facie case."

[Hearing Officer] "Arising from the same events that precipitated the Kaufman [IDEA] hearing?"

[Petitioner] "Correct ... " (Transcript, page 20)

Notwithstanding petitioner's contention at the hearing that the narrow question to be addressed was whether any of respondent's employees had the legal authority to deny her request for a 504 hearing, I agree with the hearing officer that the question should not be addressed as an abstract proposition, and that the issues to be addressed in the proposed hearing must be considered. I find that there is a rational basis in the record for the hearing officer's finding that petitioner requested a 504 hearing to re-litigate the issues raised in the 1992 IDEA hearing.

The decision of a hearing officer in a hearing conducted pursuant to IDEA and Article 89 of the Education Law is final, unless appealed to the State Review Officer (20 USC 1415 [e][1]; Section 4404 [1] of the Education Law). Petitioner did not appeal from the November 2, 1992 decision by the hearing officer in the IDEA hearing. Although she asserted at the 1994 IDEA hearing that she was precluded from appealing from the 1992 hearing officer's decision by respondent's failure to provide her with a copy of the July 23, 1992 hearing transcript, I find that there is no merit to her argument. Her alleged ground for an appeal was that the hearing officer in the 1992 IDEA hearing had violated her due process rights by denying her request for an adjournment, on July 23, 1992, and rendering a decision without affording her an opportunity to present a prima facie case. Those arguments could have been made by petitioner without a copy of the transcript, which would in any event have been filed with the State Education Department if petitioner had instituted an appeal (8 NYCRR 279.7). Having failed to appeal from the 1992 hearing officer's decision, petitioner cannot now collaterally attack that decision, under the guise of a 504 hearing. Accordingly, I find that the hearing officer did address the issue of the denial of petitioner's request for a 504 hearing, and that he correctly concluded that there was no basis in law for conducting a 504 hearing to re-litigate issues from the 1992 IDEA hearing.

With regard to petitioner's request for an order requiring respondent to reimburse her for the cost she incurred for tutoring the child on January 3, 1995 through January 6, 1995, I find that the hearing officer did address the merits of her request in his decision, notwithstanding his oral ruling at the hearing on February 9, 1995 that he would not deal with the issue. Although I agree with petitioner that the hearing officer's finding that she had failed to submit evidence of her expenditures for the tutor ignores the fact that the hearing officer had precluded further discussion of the issue at the hearing, I nevertheless find there is no merit to her claim for reimbursement. Petitioner appears to have premised her claim upon respondent's violation of an alleged order of the hearing officer to have the child placed in a classroom by no later than the first school day of 1995, which in this instance was Tuesday, January 3, 1995. However, there is no evidence in the record of any order by the hearing officer requiring the child's placement by a specific date. Indeed, the hearing officer denied petitioner's request for an interim order placing the child in school (Transcript, page 80). Agreement about the child's educational program was reached in mid-December 1994, while agreement as to the specific class in which the child would be placed was reached shortly before the Christmas-New Year's Day school vacation. The child was placed on the fifth school day after the vacation. I agree with the hearing officer that there is no basis for a reimbursement award, based upon any conduct by respondent.

I have considered petitioner's other assertions in this appeal, and find them to be without merit.

THE APPEAL IS DISMISSED.