96-038

         Petitioner appeals from the decision of an impartial hearing officer in a proceeding initiated by respondent for the purpose of obtaining an order compelling petitioner to allow respondent's committee on special education (CSE) to proceed with a triennial evaluation of petitioner's son, in September, 1995. The hearing officer denied petitioner's request that he recuse himself from serving as the hearing officer, and he directed petitioner to cooperate with the CSE in having the child evaluated. The appeal must be sustained.

        Petitioner's son is 21 years old. Although the record before me provides scant information about the student, I note that he was the subject of two prior appeals to the State Review Officer (Application of a Child with a Handicapping Condition, Appeal No. 92-18; Application of a Child with a Disability, Appeal No. 94-39). In those two decisions, it was noted that the student's persistent health problems reportedly precluded him from attending classes on a regular basis while in elementary and junior high school. While in the ninth grade during the 1989-90 school year, the boy was classified by respondent's committee on special education (CSE) as other health impaired. Respondent reportedly provided him with instruction at home. Thereafter, the parties were embroiled in a series of disputes with regard to the student's educational program, and a subsequent recommendation by the CSE in 1992, that the child be declassified. Respondent reportedly provided the boy with instructional services at home, through the 1991-92 school year. The child has reportedly remained classified as other health impaired.

        The child reportedly did not attend respondent's schools during the 1992-93 or 1993-94 school years, and the parties could not agree upon an alternative program of instruction. In July, 1993, petitioner and her son commenced an action against respondent, in the United States District Court for the Southern District of New York, involving respondent's reported unilateral termination of the child's instructional program in his home. In January and May, 1994, portions of the Federal Court complaint were dismissed.

        During the 1993-94 school year, the board of education initiated a proceeding to compel petitioner to authorize the child's private neurologist to provide the CSE with the data upon which the neurologist had opined that the child needed to receive instruction at home because of a seizure disorder, and/or to have the child examined by a neurologist selected by the CSE. The hearing officer in that proceeding ultimately found that the parties appeared to resolve their disagreement about obtaining information from the child's neurologist, and directed the CSE to meet to consider the child's educational needs. Petitioner appealed from the hearing officer's decision. Her appeal was sustained on the grounds that there was no jurisdictional basis for holding the hearing, and that the hearing officer had not been validly appointed. Petitioner was nevertheless cautioned to cooperate with the CSE so that the latter could obtain adequate information about the child's needs to prepare an appropriate individualized education program (IEP) for him (Application of a Child with a Disability, supra).

        The Federal Court action was reportedly settled, at least with respect to the claims of petitioner's son, on or about July 26, 1995. At the hearing in this proceeding, petitioner adopted the position that she was precluded from revealing the terms of the stipulation of settlement, but that the stipulation had a direct bearing upon the subject of the hearing in this proceeding, i.e., her son's triennial evaluation. In any event, this proceeding was initiated by respondent's coordinator of special education, who wrote a memorandum to respondent's clerk on October 5, 1995, requesting that an impartial hearing be conducted because of petitioner's alleged lack of cooperation in scheduling her son's triennial evaluation in a timely manner.

        The hearing officer was notified of his selection by respondent's president, in a letter dated October 6, 1995. Respondent confirmed the hearing officer's selection on October 23, 1995. The hearing commenced on November 14, 1995, at which time petitioner asked the hearing officer to recuse himself on the ground that he was allegedly not impartial, because he had reportedly been observed having lunch with the school district attorneys in two other hearings. The hearing officer denied that he had lunch with either school attorney, neither of whom was involved in this proceeding, and denied petitioner's recusal motion. Petitioner also challenged the validity of the manner in which the hearing officer had been appointed, because of the alleged involvement of respondent's Coordinator of Special Education in the hearing officer's selection. The hearing officer denied her challenge to the selection process, but he directed respondent to have additional information about the selection process available when the hearing reconvened. Following his questioning of petitioner, the hearing officer was able to ascertain that the stipulation ending the Federal Court action allegedly provided that the student would be evaluated again when he entered the twelfth grade, and that the parties did not agree about whether petitioner's son had entered the twelfth grade in September, 1995. Although neither party submitted a copy of the relevant portion of the stipulation into evidence in this proceeding, I note that in its answer to the petition in this appeal respondent indicated that the stipulation provided that: "The School District shall provide a Triennial Evaluation of [the child] after the commencement of his twelfth grade curriculum."

        The hearing in this proceeding resumed on February 7, 1996. Petitioner, who was not represented by an attorney on the first day of the hearing, had an attorney at the second day of the hearing. After hearing the testimony of the school district clerk about the manner in which he had been appointed, the hearing officer again dismissed petitioner's challenge to his appointment. With regard to the issue of the student's grade level, respondent offered the testimony of the student's guidance counselor, and a copy of the student's high school transcript. The guidance counselor testified that the student had received 14 high school credits as of September 1, 1995, and that he needed 18 2 credits to graduate. The counselor opined that the student was a senior, i.e., twelfth grader, during the 1995-96 school year. One of the courses for which the student had received credit was the Mathematics 3 course which he reportedly completed in 1992. The child's transcript indicated that he had received a final grade of 80 for the course. However, petitioner challenged the validity of that grade.

        On April 16, 1996, the hearing resumed. Petitioner's attorney was absent because of illness. Petitioner asked to be allowed to proceed without her attorney. The hearing officer agreed to her request. At the hearing, the child's mathematics teacher testified that the child had received the grade of 80 in Mathematics 3 for the first two quarters of the 1991-92 school year, and an "incomplete" for the third and fourth quarters of the 1991-92 school year. However, he apparently made up the incomplete work, and subsequently took the Regents exam in August, 1992. His grade on that exam was reportedly expunged because of the stipulation in the lawsuit which petitioner and her son had brought. The teacher did not recall having assigned the final grade of 80 which appeared on the child's transcript. The teacher further testified that she had reviewed the Mathematics 3 curriculum with the child in the Fall of 1995 to prepare him for the January, 1996 Regents exam, which the child elected not to take. However, she opined that he had completed the coursework by January, 1996. The child's guidance counselor opined that even if the child were not credited with having completed Mathematics 3 by September, 1995, he was nevertheless in the twelfth grade because of the 13 credits he had obtained, and the course sequences which he had completed.

        In his decision which was rendered on May 6, 1996, the hearing officer rejected petitioner's contention that her son could not be considered to have entered the twelfth grade in September, 1995 because he had, reportedly, not completed his Mathematics 3 or Latin 3 courses. Although the hearing officer noted that the testimony of the child's mathematics teacher was confusing, he found that the child's completion of, or failure to complete, the Mathematics 3 course was not determinative of the child's status as a twelfth-grade student. He observed that petitioner's son lacked only 4 2 credits in order to obtain a high school diploma, and found that respondent had met its burden of establishing that the student had entered the twelfth grade. He directed the student's parents to allow the CSE to conduct a triennial evaluation of the child.

        Respondent argues that the appeal should be dismissed because petitioner allegedly failed to serve it with a copy of a notice of intention to seek review in the form prescribed by 8 NYCRR 279.2 (a), within the prescribed time limit. While I agree with respondent that petitioner's notice of intention to seek review did not follow all of the prescribed language, e.g., the directive to file copies of the hearing transcript, exhibits and hearing officer's decision with the Office of Counsel of the State Education Department, I do not find that petitioner's error affords a basis for dismissing her appeal.

        Petitioner contends that the hearing officer's decision should be annulled because the hearing officer's appointment was tainted by the fact that respondent's Coordinator of Special Education allegedly recommended that the five individuals whose names appear on respondent's list of hearing officers be appointed by respondent. She relies upon a memorandum dated June 23, 1995, from the Coordinator of Special Education to the Director of Instruction which sets forth the CSE's recommendation for individuals to be appointed to the CSE. In its reference to the hearing officers, the memorandum indicates that: "Those approved by the Board of Education are ... " The record reveals that at its annual organizational meeting in July, 1995, respondent appointed the five individuals, at least four of whom had appeared on respondent's rotational list of hearing officers during the 1994-95 school year, to be on its list for the 1995-96 school year. There is nothing in the record to support an inference that the Coordinator of Special Education had any discussion with a hearing officer about any hearing which could create the appearance of impropriety (Application of a Child with a Disability, Appeal No. 93-47). I find that petitioner's contention is without merit (Application of a Child with a Disability, Appeal No. 96-2).

        Petitioner also contends that respondent failed to demonstrate that the hearing officer in this proceeding was the next available individual whose name appeared on respondent's rotational list of hearing officers. Section 4404 (1) of the Education Law provides that individuals appointed as hearing officers shall be selected from a list of available hearing officers " ... according to a rotation selection process prescribed in regulations of the commissioner [of education] ... " When this issue was raised at the hearing, respondent's then counsel read from documents in a file maintained by respondent's clerk with regard to the appointment of various individuals to serve as hearing officers in hearings over the period from May, 1994 to October, 1995. Those documents were subsequently entered into evidence as petitioner's exhibit P. Although those documents demonstrate that various hearing officers were appointed to serve during that period of time, I find that they do not answer the question which petitioner asked, i.e., whether this hearing officer was the next available individual on respondent's list to serve as the hearing officer in this proceeding. On February 7, 1996, respondent's clerk testified that:

" ... when I get a request for a hearing, I take the next person on that list. And if that person can do the hearing, then I ask him to do so. If not, then I go to the next person on the list" (Transcript, page 91).

        The clerk was cross-examined by petitioner's attorney. However, his examination of the witness did not reveal a basis for finding that the clerk had not arranged for the first available individual on respondent's list to be appointed as the hearing officer in this proceeding. Although I recommend that respondent direct its clerk to more completely document the steps which she takes to identify the next available hearing officer, I find that there is no basis for annulling the hearing officer's decision on the ground that he was allegedly not the next available hearing officer. In doing so, I disagree with the hearing officer's oral ruling on April 16, 1996 that the issue of his selection was not an appropriate one for him to determine.

        Petitioner alleges that there was at least an appearance of impropriety as a result of the hearing officer writing to her about scheduling the hearing, on October 6, 1995, the same day that responden's president appointed him to serve as the hearing officer. She also alleges that it was improper for the hearing officer to attempt to schedule the hearing, before respondent formally voted to appoint him on October 23, 1995. I find that petitioner's allegations are without merit. The first is clearly speculative, while the second reflects a misunderstanding of the fact that boards of education typically meet only once or twice per month, and may authorize their presidents to act on their behalf in the periods of time between meetings (Application of a Child with a Disability, Appeal No. 96-2).

        I have considered petitioner's contentions that the hearing officer had previously evidenced the appearance of bias by allegedly having lunch with school attorneys during other hearings one of which was held in 1992, and that he evidenced actual bias in the manner in which he handled her requests for adjournment of the hearing. However, I find that the first contention has not been established, and would be too remote, in any event, to require the hearing officer to disqualify himself in this proceeding. With regard to the matter of adjournments, the record reveals that petitioner requested, and the hearing officer granted, several adjournments prior to his letter of March 7, 1996 to petitioner's attorney, in which the hearing officer indicated that no more adjournments would be granted.

        Petitioner also argues that the hearing officer lacked jurisdiction because the conditions under which a hearing may be initiated allegedly did not exist. She contends that the CSE had not met with regard to her son since March 24, 1995, and that the CSE's recommendations had been superseded by the Federal Court stipulation and order of July 26, 1995. Petitioner's argument is premised in part upon the fact that State regulation, 8 NYCRR 200.5 (c), provides that a parent may request that an impartial hearing be held under certain circumstances, none of which were present in this proceeding. However, 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 a child, or the provision of a free appropriate public education to the child. In Application of a Child with a Disability, Appeal No. 94-39, which also involved this child, the State Review Officer found that the Coordinator of Special Education's request for a hearing for the purpose of obtaining an order requiring petitioner to authorize the child's private neurologist to release certain information to the CSE, and/or to have the child submit to an evaluation by a CSE neurologist, did not come within the terms of 34 CFR 300.506 (a). The State Review Officer reasoned that any change in the identification, evaluation or educational placement of the child would have to be initiated by respondent's CSE, and there was no evidence in the record that the CSE had done so.

        Respondent argues that it was required by Federal and State regulations to perform a triennial evaluation of the child (34 CFR 300.534 [b]; 8 NYCRR 200.4 [e][4]), which afforded it an adequate basis for initiating a hearing. However, I find that there is no evidence in the record before me that the CSE had requested that an evaluation be performed. In addition, I must note that notwithstanding the generic Federal and State requirement for a triennial evaluation, both parties agreed that the timing of the child's next triennial evaluation was to be determined by the terms of the Federal Court stipulation and order. In effect, the parties disagreed about the meaning, or the implementation, of the stipulation and order. Under the circumstances presented, I find that the hearing officer lacked subject matter jurisdiction, and that respondent's remedy was to seek relief from the Federal Court.

THE APPEAL IS SUSTAINED.

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