96-076

       Petitioner appeals from the decision of an impartial hearing officer which denied her request for an order compelling respondent to allow her son to have additional time to complete his Mathematics Course III and Latin III Regents examinations in June, 1996. She challenges the hearing officer's determination on the grounds that he allegedly was not lawfully appointed to conduct the hearing, and that he erred in not granting her the relief which he sought. The appeal must be dismissed.

        Petitioner's son, who is twenty-one years old, reportedly has a seizure disorder. In November, 1993, the student's treating physician indicated that the student had a cognitive dysfunction which required that he be educated at home, and that he be given extra time to perform tasks. The child has been classified as other health impaired, and has reportedly been educated at home by teachers provided by respondent for some time. I note that the record includes a copy of the student's individualized education program (IEP) from 1990, which has apparently been used since then to provide the boy's "pendency" placement during a continuing series of disputes between the parties. The student's IEP indicated that for testing modifications (see 8 NYCRR 200.4 [c][2][viii]), he could take tests with flexible scheduling and settings, and that revised test formats would be used. The IEP did not indicate the extent to which test time limits would be waived.

        The student was scheduled to take Regents examinations for Comprehensive English and United States History in August, 1995. State regulation provides that the Commissioner of Education may approve the use of alternative testing procedures for certain examinations, including Regents examinations, for children with disabilities (8 NYCRR 100.2 [g]). Testing modifications must be based on that student's individual needs, and the student's school must comply with certain reporting requirements. In a letter to her, which was dated July 14, 1995, petitioner was advised by respondent's Assistant Coordinator of Special Education that it would be necessary to apply to the State Education Department (SED) for permission to modify the time limits for taking the Comprehensive English and United States History examinations. The Assistant Coordinator asked petitioner for consent to release copies of the child's IEP and certain evaluation reports to the SED. Petitioner reportedly gave her consent to the release of some information to the SED.

        At the hearing in this proceeding, petitioner testified that she had raised the issue of her son having twenty-four hours, exclusive of rest periods, to complete each Regents examination, when she corresponded with the Assistant Coordinator and the Coordinator during the month of July, 1995. In a letter dated July 25, 1995, respondent's Assistant Superintendent of Schools advised petitioner that the " ... 24 hour reference would certainly be part of the application request" (Exhibit 9). In any event, on July 27, 1995, the Assistant Superintendent wrote to an SED employee, to request that petitioner's son be given " ... an allowance of 24 hours for each Regents examination" (Exhibit 10). I note that the information which respondent submitted to the SED included a brief letter by the child's physician, dated November 24, 1993, asking that the child have twenty-four hours of time for testing.

        By letter dated August 9, 1995, the Director of the SED's Office of Curriculum and Assessment advised respondent's Assistant Superintendent that her request for permission to allow the child to take a Regents examination over a two-day period could not be granted until the SED was informed of the specific Regents examinations for which permission was sought. The requested information was apparently provided to the SED. In a subsequent letter dated August 15, 1995, the Director advised the Assistant Superintendent that petitioner's son could take the Comprehensive English examination on August 16 and 17, and the United States history examination on August 18 and 21. Petitioner testified that she attended a meeting with the teachers who were to proctor her son's examinations, and either respondent's Assistant Superintendent, or its Assistant Coordinator, at which it was allegedly agreed that the twenty-four hour time limit would not include time-out for rest, meals, or recovery from a seizure. However, petitioner acknowledged that she had no written evidence of the alleged agreement.

        Petitioner testified that her son had taken approximately thirty-four hours to complete each of his Regents examinations in August, 1995. She further testified that the student had a seizure during his comprehensive English examination. However, he completed both examinations, and achieved grades of 98 in English, and 97 in American History. Respondent stipulated that the student had required more than twenty-four hours to complete each of his examinations.

        By letter dated January 12, 1996, respondent's Coordinator of Special Education advised petitioner and her son that respondent was making arrangements for the boy to take the Regents Mathematics Course III examination over the two-day period of January 26 and 29, 1996, " as per directive of the State Education Department". The Coordinator indicated that the boy would have a total of twenty-four hours in which to complete the examination. She further advised them that if the arrangements were not satisfactory, they should contact her. Petitioner testified that she responded in writing with an objection to the fact that the twenty-four hour period in which the student was to complete the examination was inclusive of breaks for rest, meals and recovery from any seizures which her son might have. On January 24, petitioner and her son met with the Assistant Coordinator of Special Education, the teacher who was to proctor the examination, and a representative of respondent's mathematics department. At the hearing, petitioner testified that the Assistant Coordinator discussed a written agenda describing the manner in which the examination would be administered to petitioner's son (Exhibit 16). She further testified that the Assistant Coordinator told her that if she had questions or concerns, she would have to speak to respondent's attorney. After the meeting ended, petitioner and her son spoke to respondent's attorney, who reportedly advised them that the student could have no more than twenty-four hours to complete the examination because of a provision of a stipulation the parties had entered into in August, 1995 to settle a Federal lawsuit which petitioner and her son had brought against respondent.

        Petitioner's son chose not to take the examination because of the condition imposed by respondent's attorney. On January 25, 1996, petitioner requested that an impartial hearing be held because respondent had allegedly failed to make a reasonable accommodation for her son to take the Regents examination on January 26, 1996. On February 12, 1996, respondent appointed a hearing officer to conduct the hearing. The hearing was initially scheduled to take place on March 5, 1996, but it was adjourned at petitioner's request. Upon the reported failure of petitioner's attorney to respond to his inquiry about the dates when petitioner would be available to attend the hearing, the hearing officer informed the parties that the hearing would be held on April 24, 1996. On April 22, 1996, petitioner again requested an adjournment of the hearing, which the hearing officer granted over respondent's objection. The hearing was scheduled to take place on May 24, 1996. On May 23, 1996, petitioner advised the hearing officer that she could not attend the hearing on the following day. The hearing officer informed petitioner's attorney that the hearing would be held on May 24, 1996. Petitioner and her attorney attended the hearing on that date.

        At the beginning of the hearing, petitioner asked the hearing officer to disqualify himself on the grounds that respondent's Coordinator of Special Education and its Assistant Superintendent had reportedly been involved in the hearing officer's appointment. She asserted that there would be an appearance of impropriety because the hearing officer would have to review the actions taken by the Coordinator and the Assistant Superintendent with regard to her son (see Application of a Child with a Handicapping Condition, Appeal No. 92-25; Application of a Child with a Disability, Appeal No. 93-32). The hearing officer indicated that he had not had any contact with any school district employee whose actions were to be reviewed in the hearing. Petitioner also requested that the hearing be deferred because she had commenced an appeal to the Commissioner of Education pursuant to Section 310 of the Education Law from the action of this hearing officer and another hearing with regard to consolidating two hearings involving this child's sibling. The hearing officer denied petitioner's request. He also denied respondent's request that another hearing which petitioner had sought with regard to the child who is the subject of this proceeding, should be consolidated with this proceeding.

        The hearing resumed on June 3, 1996. Petitioner contended that her son should have been allowed to take the Regents Mathematics Course III examination in January, 1996, with the same waived time limit as had been used with the two Regents examinations which he took in August, 1995. She opposed the introduction into evidence of the portion of the stipulation which respondent's attorney had interpreted as limiting the child to no more than twenty-four hours, inclusive of time-off for rest, meals, and recovery from a seizure, on the grounds that the terms of the stipulation were confidential. She also argued that the terms of the stipulation had been superseded by a SED directive, apparently referring to the permission which the SED had given to waive the time limits for the August Regents examinations. Respondent asserted that the SED's waiver of the time limit for the Regents examination had not addressed the issue of whether the twenty-four hour period was inclusive or exclusive of time-off, and that the stipulation had provided that the twenty-four hour time limit was inclusive. Over petitioner's objection, the hearing officer allowed respondent to enter a copy of the specific portion of the settlement agreement upon which it had relied.

        Petitioner asked the hearing officer to render a prompt decision, so that her son might take the Regents Mathematics Course III and Latin III examinations on June 18 and 19, 1996. The hearing officer indicated that he would render an interim decision, prior to receipt of the hearing transcript. On June 12, 1996, he rendered an interim decision, in which he found that petitioner had failed to present any medical or psychological proof that the child required more than twenty-four hours to complete an examination. He held that respondent had offered petitioner's son a reasonable accommodation for taking Regents examinations. The hearing officer's final decision was rendered on September 17, 1996. He noted that petitioner relied upon the fact that the child had been allowed to take more than twenty-four hours to complete his Regents exams in August, 1995, but he found that respondent was not necessarily obligated to continue this practice for future examinations. The hearing officer also found that neither the child's IEP nor the time waiver which the SED had authorized in August, 1995 specifically address the issue which divided the parties. In the absence of proof that the student's IEP required respondent to provide the time waiver which petitioner sought, the hearing officer found that there was no basis upon which he could grant the relief which petitioner requested.

        In this appeal, petitioner renews her challenge to the validity of the hearing officer's appointment. She notes that in a memorandum to respondent's Director of Instruction, dated June 23, 1995, respondent's Coordinator of Special Education recommended that respondent appoint various individuals to serve on the school district's CSE, and to serve as impartial hearing officers, during the 1995-96 school year. The hearing officer who conducted the hearing in this proceeding was one of the four individuals who was named in the Coordinator's memorandum. In a memorandum to the Superintendent of Schools, dated June 21, 1995, the Assistant Superintendent had also recommended that the same four individuals be appointed by respondent at its reorganizational meeting (see Section 1707 of the Education Law). At its reorganizational meeting on July 17, 1995, respondent approved a resolution appointing the individuals who were named in the Coordinator's memorandum of June 23, 1995 to their respective position as either CSE members, or the impartial hearing officers on respondent's rotational list of hearing officers (see Section 4404 [1] of the Education Law).

        Petitioner relies upon three prior decisions of the State Review Officer involving the appointment of impartial hearing officers. In Application of a Child with a Handicapping Condition, Appeal No. 92-19, the State Review Officer held that it would be inappropriate for a board of education to delegate its duty to appoint a hearing officer to its Superintendent of Schools, because the hearing officer would be reviewing the action taken by the Superintendent's subordinates. The decision in Application of a Child with a Handicapping Condition, Appeal No. 92-32, upon which petitioner relies, involved the same issue, i.e., the delegation of the duty to appoint a hearing officer. In Application of a Child with a Handicapping Condition, Appeal No. 92-25, the State Review Officer found that the chairperson of a school district's CSE had contacted perspective hearing officers about serving as the hearing officer in that proceeding, and had recommended the appointment of the individual who conducted the hearing. Upon those facts, the State Review Officer found that the hearing officer should have recused himself.

        I find that there is no evidence on the record of this proceeding that respondent delegated its authority to the hearing officer to conduct the hearing. The record reveals that respondent appointed the hearing officer from the rotational list of hearing officers which respondent had previously established. In an affidavit annexed to respondent's answer, respondent's clerk asserts that she contacts the individuals on respondent's rotational list of hearing officers when hearings have been requested. Upon ascertaining who is the next available individual on the list, the clerk provides that information to respondent, which appoints that individual to conduct the hearing. I further find that petitioner's contention that the clerk failed to show the "specific documented steps in obtaining the next available hearing officer" is without merit. To the extent that she now questions whether the person who conducted the hearing was the next available hearing officer on respondent's list, I must point out that petitioner's attorney had indicated that it was not an issue in this proceeding (Transcript, page 43).

        With regard to the fact that the Coordinator of Special Education had recommended the four individuals whose names appeared on respondent's rotational list of hearing officers I note, as did the hearing officer, that respondent obviously has to rely upon someone to provide it with information, such as a list of prospective hearing officers. In this instance, the hearing officer denied that he had any contact with any school district employee whose actions he might have to review in a hearing. Petitioner has submitted a letter dated January 6, 1994 from the Superintendent of Schools to this hearing officer, informing him that he had been appointed to serve as the hearing officer in another proceeding. The letter was not brought to the hearing officer's attention in this proceeding. However, I reject petitioner's contention that the proceeding has been tainted by the hearing officer's allegedly misleading statement. There is no evidence of any ex parte discussion between the hearing officer and the individuals who testified at the hearing, or any other contact which would afford a basis for finding even the appearance of impropriety (Application of a Child with a Disability, Appeal No. 96-38; Application of a Child with a Disability, Appeal No. 96-2). Therefore I find that there is no merit to petitioner's contention that the hearing officer was invalidly appointed.

        Petitioner argues that she was deprived of a fair hearing because the hearing officer had allegedly made up his mind before he received all of the evidence which was necessary for him to make an informed decision. Her argument appears to be premised upon the fact that the hearing officer denied her request that he order respondent to provide her with copies of the time logs maintained by the two teachers who had administered the Regents examinations to her son in August, 1995. The record reveals that near the end of the second day of the hearing, petitioner's attorney alluded to petitioner's previous request for the time logs pursuant to the Freedom of Information Law (FOIL). The hearing officer denied the attorney's request on the ground that he lacked jurisdiction to enforce a FOIL request. I agree. Section 89 (4) of the Public Officers Law prescribes the procedure to be followed when, challenging an alleged denial of access to records. Moreover, I must note that petitioner and her attorney were extremely tardy in raising the issue, particularly in view of petitioner's request that the hearing officer render an immediate decision. Finally, I note that respondent had already conceded that the child had been given more than twenty-four hours to complete each of the Regents examinations in August, 1995. I find that petitioner's argument is without merit.

        Petitioner contends that she discussed the issue of the twenty-four hour time limit with respondent's CSE at a meeting which was held on March 24, 1995. She offers a letter dated April 6, 1995, which she addressed to the CSE chairperson, in which she asserted that:

" There is an omission on the recommendation to the Wappingers Central School District's Board of Education that the Committee on Special Education had stated for the record that since the 'status quo as per 6/1/90 IEP' was in existence and was to be implemented, the twenty-four (24) hour time extension was in effect." (Exhibit 14 to petition).

        On April 17, 1995, the CSE chairperson responded to petitioner's letter by indicating that:

" ... until further clarification is gained through the teachers and triennial evaluation, status quo refers to the classification, program and adaptive testing as per the June, 1990 IEP" (Exhibit 16 to Petition).

        Respondent objects to petitioner's belated attempt to introduce evidence about the provisions of the child's IEP. It asserts that the documents to which petitioner refers existed at the time of the hearing, and that petitioner failed to introduce them at the hearing. Documentary evidence not presented at a hearing may be considered in an appeal from the hearing officer's decision, if such evidence was unavailable at the time of the hearing, or the record would be incomplete without the evidence (Application of a Child with a Disability, Appeal No. 95-41). I find that the record would be incomplete without these two exhibits, which may shed some light upon the meaning of the IEP provision that the child's test limits should be flexible.

        In essence, petitioner challenges the appropriateness of the educational program which respondent provided to her son, with regard to the testing modifications which were to be used when the student was tested. I find that respondent bears the burden of proving that its educational program, including the test modifications set forth in the child's IEP, were appropriate for him (Application of a Child with a Disability, Appeal No. 93-24; Application of a Child with a Disability, Appeal No. 95-85). At the hearing in this proceeding, respondent took the position that the student's IEP did not address the issue of whether petitioner's son would have twenty-four hours, inclusive or exclusive of rest periods, to complete his Regents examinations. Having reviewed the 1990 IEP for the student, in addition to Exhibit 15 and 16 to the petition, I agree with respondent. I have also considered the August 9, 1995 letter from the Director of the SED's Office of Curriculum and Assessment granting an extension of time with respect to the two Regents examinations. Although the extension given by the SED allowed the child two days in which to complete the examinations, it also did not address the issue which is the subject of this proceeding. However, that is not dispositive of the matter. Respondent was required to either demonstrate the appropriateness of the twenty-four hour time limit inclusive of breaks, or demonstrate that the parties had agreed to that time limit in their stipulation ending petitioner's Federal court action. Respondent chose to rely upon the stipulation. The stipulation read in material part that:

" The School District shall adopt the Committee on Special Education's recommendations of Friday, March 24, 1995, attached as Exhibit "A", which were in part to provide [the child] with an Individualized Education Program which classifies [the child] as Other Health Impaired, and provides him tutoring for a homebound instruction program with a total time extension of 24 hours to complete an examination, if needed, and 3 hours per week for each course of study except for laboratory courses which may require an additional maximum of 50 hours of work, if needed. The School District shall waive the three hour time limit for Regents Examinations, however, such examinations must be administered, even if in several sessions, over the period of one day. The School District shall permit by mutual agreement between [the child] and his tutors, to provide tutoring during weekends, holidays, and vacations" (Exhibit 19).

        I find that the penultimate sentence of Exhibit 19 supports respondent's position. I note that petitioner has not raised the issue of the alleged breach of the confidentiality of the stipulation. In any event, that issue would more appropriately be addressed by the court (Application of a Child with a Disability, Appeal No. 96-38).

THE APPEAL IS DISMISSED.