96-060

        Petitioner appeals from an impartial hearing officer's decision which found that respondent's committee on preschool special education (CPSE) had not promptly considered petitioner's request that her son's individualized education program (IEP) be amended to increase the number of hours of the applied behavioral analysis (ABA) program services to be provided to her child during the remainder of the 1995-96 school year. The hearing officer remanded the matter to the CPSE to make a recommendation within 14 days after his decision. Petitioner challenged the hearing officer's authority to conduct the hearing, and withdrew from the hearing. She challenges the hearing officer's decision on the ground that he was not properly appointed to conduct the hearing. The appeal must be sustained.

        The petitioner's son, who is five years old, reportedly began having seizures when he was two years old. The child was subsequently diagnosed as having Autism. The child was enrolled in a center based preschool for approximately one year. Thereafter, he was enrolled on a twelve-month basis in the Helping Hands Preschool, where he reportedly began to receive some ABA as an adjunct to his educational program.

        On August 23, 1995, respondent's CPSE prepared the child's IEP for the 1995-96 school year. It recommended that he receive special education itinerant services (See Section 4410 [1][k] of the Education Law) in his home once per week for two hours, on a twelve-month basis. The CPSE also recommended that the child receive a total of 30 hours of individual speech/language therapy per week. It further recommended that the child receive 30 hours of "LOVAAS" (ABA) per week as a related service. In a note which was intended to refer to the child's ABA training, the IEP indicated that "follow-up as provided by Bancroft, services to be at their discretion". At the hearing in this proceeding, the CPSE chairperson testified that Bancroft was an organization in New Jersey, which provided ABA training and follow-up services to children who had been diagnosed as being autistic. Although the IEP indicated that services were to be provided on a twelve-month basis, I note that the IEP also indicated that the child's related services would be provided from September 7, 1995 until June 21, 1996. Petitioner did not challenge the IEP which was prepared on August 23, 1995.

        In a note dated March 6, 1996, and addressed to the CPSE chairperson, petitioner asked that an impartial hearing be held. Petitioner was reportedly concerned that Rensselaer County would not pay for Bancroft to provide follow-up services to the child. Pursuant to Section 4410 (5) of the Education Law, Rensselaer County was responsible for paying for those services which the CPSE had recommended. The CPSE chairperson testified that an arrangement was made with Rensselaer County and Bancroft that the County would pay for a three-day training workshop to be provided by Bancroft, and that respondent would pay for six follow-up visits by Bancroft. A CPSE meeting was held on March 29, 1996 to revise the child's IEP to reflect the arrangement which had been made. Although she was invited to attend the CPSE meeting, petitioner reportedly declined to attend the meeting because she was concerned that the CPSE might reduce the amount of services which her son would receive. As revised by the CPSE on March 29, 1996, the child's IEP no longer explicitly identified ABA as a related service to be provided to the child. However, the "Comments" portion of the IEP indicated that the child would " ... participate in LOVAAS training as offered by the Bancroft agency". The IEP also indicated that Bancroft had been authorized to provide six follow-up visits between January, 1996 and August, 1996.

        In a note to the CPSE chairperson, which was dated April 12, 1996, petitioner expressed her gratitude that the services to be provided by Bancroft had not been reduced, but indicated that she could not drop her request for a hearing " ... until we meet [with the] CPSE/CSE to determine his [the child's] teacher services over the summer" (Exhibit 14). In another note which she sent to the CPSE chairperson three days later, petitioner indicated that a physician had recently recommended that the child receive a minimum of 40 hours of service per week. Petitioner requested that a new IEP be prepared to provide the child with 40 hours of service per week, as soon as possible. However, respondent's CPSE did not reconvene to review the child's IEP.

        On May 14, 1996, respondent's committee on special education (CSE), which was responsible for recommending the educational program to be provided to the child during the 1996-97 school year, recommended that the child be classified as autistic, and that he be educated in "Wildwood, or similar BOCES program," on a twelve-month basis. It further recommended that the child receive individual and group speech/language therapy, group physical therapy and individual and group occupational therapy, as related services.

        In a letter to petitioner, which was dated May 17, 1996, the CPSE chairperson asserted that the issue involved in petitioner's initial request for a hearing, i.e., the provision of services to the child during the Summer of 1996, was moot as a result of the school district's agreement to continue to provide services to the child during the Summer of 1996. The CPSE chairperson noted that the CSE had recently prepared the child's IEP for the 1996-97 school year, and advised petitioner that she could request an impartial hearing to review the provisions of that IEP. The CPSE chairperson asserted in her letter that the child was receiving 32 hours of services per week, pursuant to his IEP for the 1995-96 school year. However, she did not otherwise address the request which was made by petitioner on April 15, 1996 that the amount of services be increased to 40 hours per week.

        On May 19, 1996, petitioner wrote a letter to the CPSE/CSE chairperson, in which she reiterated her request for an impartial hearing with regard to the 1995-96 school year, and she requested an impartial hearing for the Summer of 1996. She further indicated that one of the issues to be addressed at the hearing was the CPSE's failure to determine the number of hours per week of special education programming her son was to receive during the summer. Ms. Karen O'Brien, who is chairperson of respondent's CPSE and its CSE, responded to petitioner's request by indicating that respondent would provide services to the child pursuant to his IEP for the 1995-96 school year until August 30, 1996, and that an impartial hearing would be scheduled.

        At its meeting on June 5, 1996, respondent unanimously approved a resolution which provided that it:

" ... hereby adopts as its approved list of Impartial Hearing Officers on the attached list which has been approved by the New York State Education Department. The district shall select from this list of Impartial Hearing Officers whenever the need for the use of the same arises for the Committee on Special Education impartial hearings, and

WHEREAS, the Board of Education has received a request for an Impartial Hearing by a parent of a Special Education student, individualized special education program (sic),

BE IT RESOLVED, that the Board of Education authorizes the Superintendent to hire an Impartial Hearing Officer to conduct that hearing from the approved list which was officially adopted." (Exhibit 2)

        The individual who served as the hearing officer in this proceeding was asked about his availability to serve by respondent's clerk, who wrote to the hearing officer at the direction of the Superintendent of Schools, on June 6, 1996. The same day, the hearing officer notified the parties that he had scheduled a pre-hearing conference to be held on June 13, 1996. Shortly thereafter, petitioner's lay advocate asked that the pre-hearing conference be conducted by telephone, and that the hearing officer recuse himself because he was allegedly biased in another proceeding involving the advocate's child. The hearing officer denied both requests.

        The hearing in this proceeding was held on June 20, 1996. At the outset, the petitioner's lay advocate challenged the authority of the hearing officer to perform his duties, on the ground that respondent had allegedly not appointed him to serve as the hearing officer in this proceeding. After a colloquy with the advocate and respondent's attorney about whether respondent had approved all of the individuals who had been certified by the State Education Department as hearing officers, or only the six individuals whose names appeared on a separate list which was entered into evidence, the hearing officer rejected the lay advocate's contention. However, he suggested that respondent could explicitly appoint him to serve as the hearing officer nunc pro tunc, i.e., retroactively. Petitioner and her lay advocate withdrew from the hearing. At the direction of the hearing officer, the hearing proceeded without them.

        In his decision which was rendered on June 28, 1996, the hearing officer noted that respondent had ratified the action of its Superintendent of Schools in appointing him to serve as the hearing officer (Exhibit 29). In its answer to the petition in this appeal, respondent asserts that it ratified the hearing officer's appointment, on June 24, 1996. The hearing officer further noted that much of the evidence that respondent had presented related to the child's IEP for the 1996-97 school year, and that respondent had urged him to decide whether the child's IEP for the 1996-97 school year was appropriate. However, the hearing officer held that his jurisdiction was limited to resolving the dispute between the parties about the appropriateness of the services offered to the child during the 1995-96 school year. He framed the issue as whether respondent should be required to provide the child with 40 hours of educational services per week for the remainder of the 1995-96 school year, which the hearing officer found to include the Summer of 1996. The hearing officer found that the CPSE should have reconvened after it received petitioner's request of April 15, 1996 that a new IEP be prepared to provide the child with 40 hours of service per week. He declined to substitute his judgment for that of the CPSE with regard to the appropriateness of providing that much service to the child, but he directed the CPSE to meet within 14 days to make a recommendation. He also retained jurisdiction in the proceeding, in the event that petitioner disagreed with the recommendation which the CPSE was to make.

        Petitioner argues that the hearing officer's decision should be annulled because respondent did not comply with the provisions of Section 4404 (1) of the Education Law, in creating a rotational list of hearing officers, and in purporting to delegate its authority to appoint hearing officers for specific hearings to the Superintendent of Schools. In the alternative, petitioner requests that I order that the record be reopened in this proceeding to afford her the opportunity to cross-examine the witnesses presented by respondent at the hearing and to present her own case in this proceeding. Even if that relief is not given to her, petitioner argues that I must nevertheless find that respondent failed to meet its burden of proof regarding the appropriateness of the child's educational program during the 1995-96 school year.

        In its answer, respondent concedes that it had not created a rotational list of individuals to be appointed as hearing officers before it received petitioner's request for an impartial hearing on or about May 19, 1996. The board of education asserts that the individuals whose names appear on its list of hearing officers were selected by the clerk " ... from the list as adopted by the board of education on a random basis based upon proximity to the location of the District." Respondent has submitted an affidavit by its clerk, Mrs. Eva DeFiglio, who asserts that the list of hearing officers which respondent approved on June 5, 1996, was the list which was approved by the State Education Department. Ms. DeFiglio asserts that she was thereafter advised by respondent's attorney of the need for the district to maintain a rotational list of hearing officers. Ms. DeFiglio asserts that after receiving that advice, she reviewed the list of hearing officers to ascertain who was geographically closest to Troy, New York. Ms. DeFiglio alleges that the name of the person who was selected to conduct the hearing in this proceeding was placed at the top of the District's list of hearing officers because his office was closer to Troy than those of other hearing officers.

        Subdivision 1 of Section 4404 of the Education Law was amended in July, 1993 to provide in part that:

"Individuals so appointed by a board of education [to serve as hearing officers] 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 ... "

        Section 200.2 (e)(1) of the Regulations of the Commissioner of Education provides that a board of education must establish a list of:

"the names and resumes of impartial hearing officers certified by the Commissioner of Education pursuant to section 221 (s)(2) [should be 200.1 (s)] of this Part, from which the district shall select the first available hearing officer. Such list shall be maintained on a rotational basis and shall be compiled from a list of all certified impartial hearing officers available to serve in the district. Those hearing officers who have conducted impartial hearings on behalf of the school on or after July 1, 1993, shall be placed on the bottom of the list in the order of the date of their appointment; ... "

        Although respondent reportedly approved a more extensive list of potential hearing officers at its meeting on June 5, 1996, a smaller list of six hearing officers was prepared by respondent's clerk on June 6, 1996. Respondent has not offered any proof that it has approved the use of the small list prepared by the clerk. I find that respondent should have approved the specific list which was used to select the hearing officer. Respondent did retroactively approve the appointment of the hearing officer who conducted the hearing in this proceeding. However, respondent's attorney acknowledged in a letter dated June 12, 1996 to petitioner's lay advocate, that the hearing officer in this proceeding had previously been appointed to serve as a hearing officer on July 16, 1993, in the last impartial hearing which had been conducted in the school district (Exhibit 6). Pursuant to 8 NYCRR 200.2 (e)(1), the hearing officer's name should have been placed at the bottom of respondent's list of hearing officers. I find that the list of six names was not prepared in accordance with the regulatory requirement. Although the individual would have been eligible to serve as the hearing officer in this proceeding if the other individuals on the list were unavailable, respondent makes no such claim. Respondent's clerk has alleged that the hearing officer in this proceeding was selected because his office was closest to the school district. Therefore, I find that the hearing officer was not selected by the rotational process required by statute and regulation.

        A board of education may not delegate its responsibility to appoint a hearing officer to its superintendent of schools (Application of a Child with a Handicapping Condition, Appeal No. 92-19; Application of a Child with a Handicapping Condition, Appeal No. 92-32; Application of a Child with a Handicapping Condition, Appeal No. 92-46). I find that respondent's resolution of June 5, 1996, by which it delegated its responsibility to its superintendent of schools, was invalid. However, respondent retroactively appointed the hearing officer in this proceeding. I also note that there is no evidence of any ex parte conversation between the hearing officer, the superintendent of schools, or any school employee involved with the education of this child. Nevertheless, I caution respondent to avoid even the appearance of any impropriety in the selection of its hearing officers by removing the superintendent of schools from the selection process (Application of a Child with a Disability, Appeal No. 96-35).

        Although I have found that respondent failed to demonstrate that the hearing officer in this proceeding was appointed in the manner prescribed by statute and regulation, the question of what would be an appropriate remedy remains to be decided. The limited record which is before me does not afford a basis for determining whether the child's educational program for the 1995-96 school year was appropriate. The 1995-96 school year has ended. The child remained under the jurisdiction of the CPSE through the Summer of 1996 (Section 4410 [1][i] of the Education Law). However, he is now of school age, and is under the jurisdiction of respondent's CSE. I note that on June 7, 1996, petitioner asked respondent to provide an independent evaluation of the child. The results of that evaluation, which are not part of the record before me, should provide adequate information about the child's current educational needs. I will remand the matter to respondent's CSE with the direction that it consider the results of that evaluation in recommending a specific educational program and placement for the child for the 1996-97 school year.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the decision of the hearing officer is hereby annulled, and;

IT IS FURTHER ORDERED that respondent's CSE shall reconvene to make an appropriate recommendation for the child's educational program and placement in accordance with the tenor of this decision.