95-044

Petitioner appeals from a decision from an impartial hearing officer which dismissed petitioner's claim that he had been denied the right to be an equal participant at a meeting of respondent's committee on special education (CSE) which was held in July, 1994. He also appeals from the hearing officer's dismissal of petitioner's claim that respondent had failed to implement his son's individualized education program (IEP) by not holding a meeting between petitioner and his son's service providers on a regular basis. Petitioner challenges the hearing officer's decision on the grounds that there was an alleged appearance on impropriety in the manner in which the hearing officer was selected, and that the hearing officer allegedly exhibited bias against petitioner in conducting the hearing. He also challenges the hearing officer's decision on the ground that he was allegedly denied an opportunity to examine his child's records prior to the hearing, and that the hearing officer's decision was untimely. He further contends that the hearing officer exceeded her jurisdiction because the two issues upon which the hearing officer ruled were reportedly to be decided by another hearing officer in a separate proceeding. Upon review of the record, I find that there is no merit to petitioner's contentions. Therefore, the appeal must be dismissed.

Petitioner's son is 19 years old. In March, 1991, the child sustained multiple trauma, including a severe head injury, in an automobile accident. The child has a tracheostomy to assist him in breathing, and receives nutrition through a jejunostomy. A neurologist who examined the child in 1992, opined that the child was likely to remain in a persistent vegetative state, with little chance for meaningful recovery. In 1993, the child's physician reported that the child was unable to perform any meaningful movements or activities on command. The child was initially classified by the CSE as other health impaired. He is presently classified as traumatic brain injured. There is no dispute about the child's classification.

Respondent initially began to provide special education services to the child in 1992, at the Crouse-Irving Hospital. He has remained at the hospital for treatment. The provision of services to the child by respondent has been the subject of a number of impartial hearings and appeals to the State Review Officer (Application of a Child with a Disability, Appeal No. 93-34; Application of a Child with a Disability, Appeal No. 93-47; Application of a Child with a Disability, Appeal No. 94-28; Application of a Child with a Disability, Appeal No. 95-10).

This proceeding arises from two letters from petitioner to the chairperson of respondent's CSE, each dated April 5, 1995, in which petitioner requested that an impartial hearing be held. In the first letter, petitioner identified the issue to be determined as respondent's failure to implement his son's IEP "and associated agreement", by failing to schedule and hold meetings between petitioner and his son's service providers on a regular 6-8 week basis. In the second letter, petitioner identified the issue as respondent's failure to ensure petitioner's right as a parent to be an equal participant in developing, reviewing, and revising his son's IEP, because the CSE had reportedly placed primary emphasis upon the recommendations of the child's teachers and had not accorded equal weight to petitioner's recommendations.

In a letter to the chairperson of the CSE, dated April 9, 1995, petitioner stated that he was rescinding his consent for respondent to evaluate his child for educational purposes, or for any evaluations to be conducted upon his son, without petitioner's prior, written consent. Federal regulation provides that parental consent must be obtained before conducting a pre-placement evaluation and for the initial placement of a child with a disability in a special education program. However, prior consent by the parent is not required for subsequent evaluations or placements (34 CFR 300.504 [b]). In any event, respondent sought to have the issue of petitioner's withdrawal of consent determined by the hearing officer appointed to adjudicate the two issues raised by petitioner in his letters of April 5, 1995.

In a letter to petitioner, dated April 28, 1995, the hearing officer scheduled the hearing in this proceeding to be held on May 15, 1995. In a letter to the CSE chairperson dated May 2, 1995, petitioner requested an opportunity to review his child's records to obtain evidence for the scheduled hearing. The CSE chairperson responded to petitioner's letter on the next day, by informing him that he could review the child's records at stated times on May 8, and May 9, 1995. The CSE chairperson's response was sent to petitioner by certified mail, which was not claimed by petitioner. In a letter to the hearing officer, dated May 3, 1995 petitioner asserted that he had not been consulted about the convenience to him of the hearing date selected by the hearing officer, and emphasized that he was not waiving his right to obtain a written decision of the hearing officer within 45 days after respondent's receipt of his request for a hearing.

At the hearing in this proceeding on May 15, 1995, petitioner was asked by the hearing officer for certain information about the issues which he had raised in his letters of April 5, 1995 requesting impartial hearings. He was asked by the hearing officer to specify the meeting of the CSE at which he was allegedly denied his right to be an equal participant in preparing his child's IEP. Petitioner indicated that the CSE meeting had been held in July, 1994. Under further questioning by the hearing officer, petitioner conceded that the IEP which had been prepared at the July, 1994 CSE meeting was in fact null and void because it had been superseded by the IEP which was prepared by the CSE at a meeting held in September, 1994. With regard to petitioner's claim that the respondent had failed to implement the child's IEP by not having the child's service providers meet with petitioner on a regular basis, the hearing officer asked petitioner to identify the IEP which explicitly provided that such meetings would be held. Petitioner conceded that none of the child's IEPs explicitly provided that such meetings would be held, but suggested that it had nevertheless been agreed to at a CSE meeting held in September, 1993. Respondent moved to dismiss both of petitioner's claims on the grounds that there was not legal basis for either claim, and that petitioner had waived any right to raise the issues by not raising them in the prior hearings and appeals involving the child's IEPs for the 1993-94 and the 1994-95 school years. The hearing officer granted respondent's motion.

With regard to the issue of petitioner's withdrawal of consent to his son's evaluation by respondent, petitioner, respondent's attorney and the hearing officer discussed the intended meaning of petitioner's letter as well as petitioner's assertion that he was unaware that the issue would be raised at this hearing and was unprepared to address it. Petitioner asserted that he was not withdrawing his consent completely, but was merely seeking to obtain prior notice from respondent of any proposed evaluation. However, he indicated that he might not agree to have a specific evaluation conducted. His right to receive prior notice of an evaluation is assured by Federal regulation (34 CFR 300.504 [a][1]), as was brought to the attention of these two parties in a prior appeal (Application of a Child with a Disability, Appeal No. 93-47). In any event, the hearing officer agreed to sever the issue from this proceeding, and to hold a separate hearing about it. Respondent has submitted with its answer a copy of the hearing officer's decision in the separate hearing which was held on May 31, 1995, concerning the issue of petitioner's withdrawal of consent to his son's evaluation. The hearing officer held that the board of education did not have to obtain petitioner's consent before conducting an evaluation. However, that decision is a separate matter, and I will not review the hearing officer's decision, which has not been appealed.

The hearing officer in this proceeding rendered a written decision on June 1, 1995. In her decision, the hearing officer found that petitioner had not produced any evidence at the hearing of the alleged agreement for the child's service providers to hold meetings with petitioner on a regular basis, and noted that in a prior hearing about the child's IEP, petitioner had failed to raise the issue. She held that petitioner's claim should be dismissed. With regard to petitioner's claim that he had not been accorded the status of an equal participant at the July, 1994 CSE meeting, the hearing officer found that the IEP which had been created at meeting was superseded by the IEP developed at the September, 1994 CSE meeting, at which petitioner had been active participant. The hearing officer dismissed petitioner's claim. The hearing officer noted that the issue of petitioner's withdrawal of consent had been severed from the proceeding, by mutual agreement.

In this appeal, petitioner contends that the hearing officer's appointment to serve as the hearing officer was tainted by the participation of the CSE chairperson, who is also respondent's Director of Pupil Personnel Services, in the selection of the hearing officer. In a memorandum to respondent's president, dated April 13, 1995, Ms. Romano, the Director of Pupil Personnel Services indicated that one hearing officer was unavailable, and that Ms. Mitchell (another school administrator) had contacted another hearing officer, who was available. Ms. Romano asked respondent's president to appoint the second hearing officer, and have the respondent's clerk notify the hearing officer of her appointment. She also noted that respondent should ratify the hearing officer's appointment at its next regular meeting.

The Commissioner of Education and the State Review Officer have cautioned boards of education to avoid even the appearance of impropriety in the selection of hearing officers by not permitting school employees who will testify as witnesses or who may have otherwise been involved in the decision or action to be reviewed by the hearing officer to participate in the selection of the hearing officer (Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 195; Application of a Child with a Handicapping Condition, Appeal No. 92-25; Application of a Child with a Handicapping Condition, Appeal No. 92-46; Application of a Child with a Disability, Appeal No. 94-47; Application of a Child with a Disability, Appeal No. 94-37). The appearance of impropriety would not be eliminated by the statutory requirement that prospective hearing officers be selected on a rotational basis from lists maintained by each board of education, because there is at least a possibility that the school employee and the hearing officer could discuss substantive issues about the hearing in their ex parte conversation (Application of the Board of Education of the Ellenville Central School District, Appeal No. 94-43). In this instance, respondent has submitted a copy of its policy with regard to the appointment of hearing officers, which provides that requests for impartial hearings are to be forwarded to respondent's president, and that:

"Within five (5) days, the Board of Education President will notify the Pupil Personnel Services Director. The PPS Director will provide the next name on the rotational list and a person from the school who is unfamiliar with the case will check the availability of the individual selected." (Exhibit 1 to Answer)

Respondent asserts that its employees complied with its policy in canvassing prospective hearing officers, i.e., that an employee other than Ms. Romano, who is the Director of Pupil Personnel Services and CSE chairperson, contacted the hearing officers. In the absence of any evidence to the contrary, and in view of the fact that Ms. Romano did not testify at the hearing in this proceeding, I find that Ms. Romano's memorandum to respondent's president about the appointment of the hearing officer does not afford a basis for annulling the hearing officer's decision. However, I recommend that respondent have the administrator who contacts prospective hearing officers report to respondent's president when an available hearing officer has been located.

I have carefully reviewed the brief transcript in this proceeding, and find that there is no evidence of the hearing officer's alleged bias against petitioner. Petitioner asserts that the hearing officer evidenced her bias against him by questioning him about the particulars of the issues which he wished to have determined, rather than directing respondent to present its case. His assertion is transparently without merit. The general statements in each of his April 5, 1995 letters requesting hearings were insufficient to frame the issues for respondent to present relevant evidence, or the hearing officer to determine the relevance of petitioner's and respondent's evidence. The hearing officer afforded petitioner an opportunity to make an opening statement, in which he could have provided the specificity needed for the hearing to proceed. Petitioner chose not to make an opening statement, as was his right. At that point, the hearing officer asked relevant questions to identify the CSE meeting at which he was allegedly denied the right to be an equal participant in developing his child's IEP, and the basis for his contention that the CSE was not implementing the child's IEP by not having the child's service providers meet with petitioner. I find that the hearing officer's questions were appropriate.

Petitioner further contends that the hearing officer evidenced her bias against him by denying him the right to present evidence, confront, cross-examine, and compel the attendance of witnesses, in violation of 34 CFR 300.508. However, the issues which the hearing officer was eventually able to frame, after questioning petitioner, presented questions which could be determined as a matter of law. The extent to which petitioner was permitted to be an active participant at the July, 1994 CSE meeting was clearly a moot question. The IEP which was developed at that meeting was not implemented since the child's previous IEP was in effect as a result of prior due process proceedings (See Application of a Child with a Disability, Appeal No. 93-34 which directed respondent to continue to provide services under the child's 1992-93 IEP until superseded by the implementation of an IEP for the 1993-94 school year, and Application of a Child with a Disability, Appeal No. 94-28, which arose out of a September, 1993 CSE meeting at which the parties agreed to continue providing services under the 1992-93 IEP with updated annual goals, pending the child's evaluation). The July, 1994 IEP was replaced by the IEP drafted at the September, 1994 CSE meeting. The latter IEP was the subject of another due process proceeding, in which the issue of petitioner's participation in the July, 1994 meeting was not raised (Application of a Child with a Disability, Appeal No. 95-10).

The other issue raised by petitioner at the hearing was the alleged failure to implement the child's IEP as developed at a meeting of the CSE on September 23, 1993, because the child's service providers were not meeting with petitioner on a regular basis. However, petitioner conceded to the hearing officer that the child's IEP did not provide that there be meetings between petitioners and the service providers, but asserted that the minutes of the September 23, 1993 might reflect the alleged agreement. In this appeal, petitioner asserts that he intended to present evidence of the alleged agreement through the testimony of the lay advocate who was present at the CSE meetings. He has submitted an affirmation by the advocate, who asserts that the alleged agreement was to be put in the child's IEP and in the CSE meeting minutes. The advocate further asserts that the minutes of the CSE meeting taken by the CSE's secretary have disappeared, and that the personal notes of respondent's former attorney have been substituted for the missing minutes. Petitioner challenged the accuracy of the September 23, 1993 CSE meeting minutes in another due process proceeding. Petitioner's appeal in that proceeding was dismissed (Application of a Child with a Disability, Appeal No. 94-28). In essence, the advocate's assertions are a collateral attack on the decision in the prior appeal, which was not appealed. Petitioner also offers copies of correspondence from respondent's former education coordinator and one of the child's service providers regarding meetings which were held in January and March, 1994. However, those documents do not establish that there was a formal agreement to hold such meetings. More importantly, any such agreement should have been part of the child's IEP, which is " ... a written record of the decision reached at the [CSE] meeting." (34 CFR Part 300, Appendix C, I Purpose of the IEP). I find that the hearing officer correctly determined that the hearing should be terminated, without adducing any further evidence, because of the absence of a legal basis for either of the two issues raised by petitioner.

Petitioner's assertion that the hearing officer should not have ruled upon either issue because they were the subject of a hearing being held before another hearing officer is untenable. Respondent has annexed the decision of the hearing officer in the other proceeding to its answer in this appeal. That decision reveals that petitioner made five separate requests for hearings in March, 1995, and two more requests in April, 1995. Six of the requests involved alleged withholding of educational services from the child, and the seventh involved petitioner's access to his son's educational records. The seven matters raised in petitioner's hearing requests, which did not involve the matters presented in the instant proceeding, were heard and determined by the hearing officer in the other proceeding. The other hearing officer did not address the two issues raised by petitioner in this proceeding because they were not included in the other proceeding.

With regard to petitioner's assertion that he was denied an opportunity to examine his child's records prior to the hearing, I find that respondent replied promptly to his request to examine the records, and afforded him the opportunity to examine the records on either May 8 or 9, 1995. Petitioner failed to claim Ms. Romano's letter of May 3, 1995 offering him those times to inspect his son's records. He advised the hearing officer that he was unprepared to deal with the issue raised by respondent about his withdrawal of consent to the child's evaluation, and the hearing officer severed that issue from the proceeding. However, he did not seek an adjournment of the hearing with regard to the other two issues.

Petitioner also challenges the hearing officer's decision on the ground that it was not rendered with 45 days after respondent received his requests for hearings, in violation of Federal and State regulations (34 CFR 300.512 [a][1]; 8 NYCRR 200.5 [c][11]). The record does not reveal the date on which respondent received petitioner's two letters requesting hearings. Ms. Romano's memo to respondent's president referred to an earlier memo, dated April 10, 1995, about the requests for hearings. Respondent assets that there was compliance with the 45 day rule, "under the facts and circumstances of the hearing," but it has not revealed when it received petitioner's requests. It also asserts that the Federal regulation authorizes a hearing officer to grant extensions of time beyond the 45 day limit, at the request of either party to the hearing. However, there is no evidence in the record that a request for an extension was made, or granted by the hearing officer. Assuming that respondent received petitioner's hearing requests on April 10, 1995, the hearing officer's written decision should have been rendered by no later than May 15, 1995, the day the hearing was held. The written decision was rendered on June 1, 1995. Although the decision was approximately two weeks late, that does not afford a basis for annulling the decision (Application of a Child with a Disability, Appeal No. 93-28).

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

THE APPEAL IS DISMISSED.