96-075

         Petitioner appeals from the decision of an impartial hearing officer which rejected petitioner's challenge to her impartiality, and which dismissed petitioner's claim that respondent had failed to provide his son with each of the services specified in his individualized education program (IEP) on certain days in November, 1995 and March, 1996. The hearing officer also dismissed petitioner's claim that respondent had allegedly evaluated petitioner's son without providing proper notice to petitioner, on the ground that petitioner failed to provide sufficient information about the alleged evaluation to enable respondent to present its case on the issue. The appeal must be dismissed.

        Petitioner's extensive involvement with the CSE has been detailed in prior decisions of the State Review Officer (see e.g., Application of a Child with a Disability, Appeal No. 95-10), and will not be repeated in this decision. His son, who is 20 years old, sustained multiple trauma, including a severe head injury, in an automobile accident in March, 1991. Except for two relatively brief stays in rehabilitation facilities, the child has been hospitalized since his accident. In 1993, the child's physician reported that the child was unable to perform any meaningful movements or activities on command. The child's classification as a child with a traumatic brain injury is not in dispute in this proceeding.

        In 1992, the CSE recommended that the child receive a total of two hours per day of services, including special education, speech/language therapy, physical therapy, and occupational therapy, except when the provision of those services would interfere with the child's medical care. Petitioner subsequently challenged respondent's alleged failure to provide the child with each of the services specified in the child's IEP during the 1992-93 school year. His appeal from a hearing officer's decision which had directed the CSE to prepare a new IEP for the 1993-94 school year was sustained in part, and the CSE was ordered to review the child's educational program (Application of a Child with a Disability, Appeal No. 93-34).

        In September, 1993, the CSE recommended that the child receive a neuropsychological evaluation, and that pending the completion of that evaluation, the child receive two hours per day of special education, plus 30 minutes each of speech/language therapy, physical therapy, and occupational therapy, five times per week. Respondent approved the CSE's recommendation. As a result of the numerous due process proceedings which petitioner has instituted since then, respondent has been required to maintain the level of services which the CSE recommended in September, 1993 (see 20 USC 1415 [e][3][A] and Section 4404 [4] of the Education Law). Respondent provides petitioner with copies of the logs which the child's special education service providers fill out to indicate the dates on which they worked with the child.

        This proceeding was initiated by petitioner in three letters which he addressed to the chairperson of respondent's committee on special education, and in which he demanded that an impartial hearing be held. In the first letter, which was dated April 29, 1996, petitioner asserted that respondent had violated his rights by failing to notify him that his child would be evaluated, to provide him with a copy of the report of the evaluation, or to hold a CSE meeting to discuss the results of the alleged evaluation. Petitioner did not specify either the nature of the evaluation, or the date on which it had reportedly been performed. In his second letter, which was dated April 30, 1996, petitioner asserted that respondent had failed or refused to provide his son with the services which were mandated by his IEP on at least three occasions during the week of March 17-23, 1996. In his third letter, which was dated May 1, 1996, petitioner asserted that respondent had failed or refused to provide his son with the services which were mandated by his IEP on at least ten occasions during the week of November 19-25, 1995. He indicated that his claim was based upon the service provider logs which had been mailed to him almost five months before he requested a hearing.

        On May 6, 1996, Dr. G. Susan Gray was appointed by respondent's president to serve as the hearing officer with respect to all three of petitioner's hearing requests. Respondent ratified Dr. Gray's appointment, at its next regularly scheduled meeting on May 7, 1996. In a letter to Dr. Gray, which was dated May 9, 1996, the CSE chairperson alluded to the fact that at the close of another hearing between the parties, the hearing officer in that proceeding had granted respondent's request to retain jurisdiction over certain matters. By implication, the CSE chairperson appeared to be suggesting that the other hearing officer was retaining jurisdiction over one or more of the issues which were to be considered by Dr. Gray. However, the CSE chairperson thereafter advised Dr. Gray on May 17, 1996 that she should proceed with the hearing. In passing, I note that in Application of a Child with a Disability, Appeal No. 96-45, I sustained petitioner's appeal from the other hearing officer's decision to retain jurisdiction over any future claims by petitioner that his son had been deprived of his IEP services.

        The hearing began on June 14, 1996. At the commencement of the hearing, respondent's attorney, Edward Sarzynski, informed the hearing officer that respondent was unaware of the specific issues involved in petitioner's April 29, 1996 hearing request relating to the alleged evaluation of his son. The attorney indicated that he and respondent's Director of Pupil Personnel had asked petitioner to clarify the issues with regard to that hearing request, but that petitioner had not done so. The following colloquy then took place between Mr. Sarzynski and the hearing officer:

[MR. SARZYNSKI]: So, that one we're not ready to proceed on because we don't know what the issue is. The other two we are ready to proceed on.

[HEARING OFFICER]: So, the scope of the hearing today is the lack of provision of services for those two weeks?

[MR. SARZYNSKI]: As I understand it, yes. (Transcript, page 5)

        The scope of the hearing was raised again during Mr. Sarzynski's examination of Ms. Sally Romano, respondent's Director of Pupil Personnel, with regard to her attempt to have petitioner clarify the issues involved in his April 29, 1996 hearing request. Petitioner objected to Mr. Sarzynski's question, on the ground that it dealt with a matter outside the scope of the hearing. The hearing officer indicated that she saw no reason why the subject matter of the April 29, 1996 hearing request could not be included in the scope of the hearing. She asked petitioner to explain the basis for his request for a hearing with regard to the alleged evaluation. Petitioner refused to provide an explanation on the ground that he believed that the matter should be the subject of another hearing. Respondent moved to dismiss the complaint underlying petitioner's April 29, 1996 hearing request, on the ground that petitioner had failed to define the issues involved with it. The hearing officer ruled that she would include the April 29, 1996 hearing request in this proceeding, but that she would give petitioner additional time to prepare his case with respect to that hearing request.

        Ms. Romano testified with regard to the alleged denial of IEP services to petitioner's son during the weeks of November 19-25, 1995, and March 17-23, 1996. She testified that petitioner's son had received each of his IEP services on November 20 and 21, 1995 (Monday and Tuesday, and no services on November 22, 23 or 24 (Wednesday, Thursday and Friday) because respondent's schools were closed for the Thanksgiving holiday. Ms. Romano further testified that petitioner's son received each of his IEP services on March 18, 19, 20, 21, 1996 (Monday - Thursday), except the services of the speech/language therapist on March 20, 1996, which were made-up on Saturday, March 23, 1996. The child's special education teacher, and his occupational therapist did not provide their services on March 22, 1996 (Friday) because a Superintendent's conference day was held on March 22, 1996, i.e., respondent's schools were closed. The child's physical therapist and his speech/language therapist did provide their respective services to the child on March 22, 1996, the former because she was making up for a day when she had been unable to provide therapy, and the latter because she was unaware that March 22 was a conference day. Respondent introduced the service providers' daily logs (Exhibits D-9 and 10) to support Ms. Romano's testimony.

        Following Ms. Romano's direct examination, the hearing was adjourned to June 26, 1996, with the expectation that the parties would receive the first day's hearing transcript by no later than June 21, 1996. However, the transcript was reportedly unavailable until June 25, 1996. With petitioner's agreement, the hearing was adjourned until July 15, 1996.

        On July 15, 1996, petitioner asked the hearing officer to recuse herself from the hearing because the hearing officer was employed as the Superintendent of Schools of the City School District of the City of Hornell. Petitioner based his request upon the fact that Section 4404 (1) of the Education Law was amended on July 1, 1993, to provide in part, that:

" The commissioner shall develop and implement a plan to ensure that no individual employed by a school district, school or program serving students with disabilities placed by a school district committee on special education acts as an impartial hearing officer and that no individual employed by such schools or programs serves as an impartial hearing officer for two years following the termination of such employment. Such plan shall be fully implemented no later than July first, nineteen hundred ninety-six."

        The hearing officer denied petitioner's request that she recuse herself. Petitioner then stated:

" Well, being the moving party, being that I've already been denied my hearing, I'm moving this to an appellate level. You can't continue this hearing without me and I'm leaving." (Transcript, pages 246-247).

        Petitioner left the hearing. The hearing officer indicated on the record that she would decide the issues presented on the basis of the evidence which had been presented to her. The hearing was closed.

        In her decision which was rendered on August 19, 1996, the hearing officer found that there was no evidence in the record of any impropriety in her selection as the hearing officer from respondent's rotational list of hearing officers (See Section 4404 [1] of the Education Law). She further found that her impartiality was not impaired by the fact that she had previously conducted a hearing between the parties, and that petitioner had appealed from her decision to the State Review Officer (Petitioner's appeal was dismissed - see Application of a Child with a Disability, Appeal No. 96-2). The hearing officer rejected petitioner's contention that the hearing could not continue because the hearing officer had not rendered, and would not render, her decision within 45 days after petitioner's request for a hearing had been received by the Board of Education. She noted that she had granted respondent's request for an extension of the 45 day period (See 34 CFR 300.512 [c]). With regard to petitioner's hearing request of April 29, 1996 involving an alleged evaluation of petitioner's son, the hearing officer held that respondent was entitled to receive sufficient information to enable it to respond to petitioner's claim. She noted that petitioner had refused to provide that information, and dismissed petitioner's claim involving the alleged evaluation. The hearing officer dismissed petitioner's claim that his son's IEP services had been unlawfully withheld from his son. Of the ten week days within the two weeks at issue, the hearing officer found that IEP services had been provided on five days, and no services were required to be provided on the three school vacation days and one superintendent's conference day. She found that the speech/language therapist had not provided services to the child on March 22, 1996, but had made-up the missed services on March 23, 1996. (I note that Ms. Romano's testimony and the log prepared by Ms. Lori Everett, the child's speech/language therapist, indicate that Ms. Everett did not provide therapy on March 20, 1996, and made-up the missed therapy on March 23, 1996).

        Petitioner has not challenged the accuracy of the hearing officer's determination that respondent did not unlawfully withhold any IEP service from his son. He contends that the hearing officer's decision must be annulled because Dr. Gray could no longer serve as the hearing officer after July 1, 1996, since she was employed as the Superintendent of Schools of the City School District of the City of Hornell. In addition to the provision of the statute which is set out above, petitioner relies upon the amended definition of an impartial hearing officer which is in the Regulations of the Commissioner of Education. That definition reads, in material part, as follows:

"Commencing July 1, 1996, no individual employed by a school district, school or program serving students with disabilities placed there by a school district committee on special education may serve as an impartial hearing officer..." (8 NYCRR 200.1 [s])

        I note that although petitioner also refers to 8 NYCRR 200.5 (c) (11), and 8 NYCRR 200.2). However, I find that neither regulation is germane to the issue. Respondent argues that the amendments to Section 4404 (1) and 8 NYCRR 200.1 [s] did not apply to Dr. Gray in this proceeding because she was appointed prior to July 1, 1996, and the hearing had begun prior to that date. There would be no question as to Dr. Gray's authority, if her decision had been rendered prior to July 1, 1996 (Application of a Child with a Disability, Appeal No. 96-51). The issue is whether she was divested of the authority which she had prior to July 1, 1996, because the hearing did not end until after that date. The procedure in an action is governed by the law regulating it at the time any question of procedure arises (Matter of Clayton v. Clement, 33 NY 2d 386 [1974]; Matter of Camperlengo v. Barell, 78 NY 2d 674 [1991]). In this instance, the procedural question is who should conduct the hearing. Dr. Gray had already presided at the first day of the hearing on June 14, 1996. The hearing was adjourned until June 21, 1996, and thereafter adjourned by consent until July 15, 1996. I find that Dr. Gray was not divested of authority to conduct the hearing which she had lawfully begun (Bd. of Ed. Commack UFSD v. Fernandez, 187 AD 2d 901 [3rd Dept., 1992]; Meliti v. Bd. of Ed. Central School District No. 1 Town of Rhinebeck, 64 AD 2d 631 [2d Dept., 1978]).

        Petitioner further contends that the hearing officer's decision must be annulled because she had no authority to proceed with the hearing, once petitioner had withdrawn his request for a hearing (see Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rept. 138). I find that petitioner's contention is without merit. There is no evidence in the record that petitioner had withdrawn his request for a hearing. Indeed, if he had withdrawn his hearing request, there would be no basis upon which he could maintain this proceeding, including this appeal, under Section 4404 of the Education Law. Instead, petitioner chose to absent himself from the hearing in the mistaken belief that he could circumvent the requirement that he first establish his claims at a hearing before attempting to seek appellate review. I must note that in a prior appeal, petitioner was explicitly apprised of the fact that he could not simply walk away from a hearing, and institute an appeal to the State Review Officer (Application of a Child with a Disability, Appeal No. 93-47).

        Petitioner also argues that the hearing officer's decision should be annulled because it was rendered in excess of 45 days after petitioner's three hearing requests were received by respondent. However, Federal regulation authorizes a hearing officer to grant an extension of the 45 day time limit at the request of either party (34 CFR 300.512 [c]). Dr. Gray granted respondent's request for an extension of time (Transcript, page 35). Although she did not specify the length of the extension, Dr. Gray indicated that the length of the extension would be determined after the parties had presented their respective cases. In any event, the untimeliness of a hearing officer's decision would not afford a basis per se for annulling the decision (Application of a Child with a Disability, Appeal No. 93-28). Nevertheless, I must note that although respondent promptly appointed the hearing officer in this proceeding, the record does not reveal why the hearing did not begin more promptly.

        I have also considered petitioner's arguments about the hearing officer's alleged bias in the manner in which she conducted the hearing, including her determination to include petitioner's claim about the child's alleged evaluation (the April 29, 1996 hearing request) in this proceeding. I find that petitioner's arguments are without merit. As petitioner well knows from his prior appeals, a hearing officer may consolidate more than one hearing request into a single proceeding (Application of a Child with a Disability, Appeal No. 95-51; Application of a Child with a Disability, Appeal No. 96-45). Petitioner's arguments about the manner in which the hearing officer was appointed are without foundation of fact in the record.

THE APPEAL IS DISMISSED.