Application of a CHILD WITH A DISABILITY, by her parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Ellenville Central School District
Donoghue, Thomas, Auslander and Drohan, Esqs., attorneys for respondent, Daniel Petigrow, Esq., of counsel
Petitioners appeal from an impartial hearing officer's decision which found that respondent had failed to conduct a timely triennial evaluation of petitioner's daughter, but which denied petitioners' request that respondent be ordered to provide the child with compensatory education, and declined to order any other equitable relief. The appeal must be dismissed.
I note from the decision in a prior appeal to the State Review Officer (Application of a Child with a Handicapping Condition, Appeal No. 92-36) that petitioners' daughter has been diagnosed as having Purine Autism, and that she was classified as autistic in 1984. The State Review Officer's decision also indicated that the parties have been embroiled in a dispute about the child's educational program since the 1984-85 school year.
Federal and State regulations require that a child with a disability be re-evaluated at least once every three years to determine the child's continuing eligibility to receive special education (34 CFR 300.534 [b]; 8 NYCRR 200.4 [e]). The decision in the prior appeal indicates that the child's first triennial evaluation was performed at the Mental Retardation Institute of the Westchester County Medical Center, in 1987. A dispute between the parties arose with respect to the second triennial evaluation, which respondent wished to have performed at the Yale University Child Study Center, in 1990. The child had still not been re-evaluated in August, 1992, when an impartial hearing officer held that respondent had not purposefully delayed the girl's re-evaluation, and that petitioners had reneged on a prior agreement to have the child evaluated at Yale. Petitioners' appeal from the hearing officer's decision was dismissed in Application of a Child with a Handicapping Condition, supra.
The child was thereafter re-evaluated in January, 1993 at the Newington Children's Hospital in Newington, Connecticut. Petitioners challenged the adequacy of that evaluation in a due process proceeding which they had initiated to review a recommendation by respondent's committee on special education (CSE) to change their child's classification to multiply disabled, and to place her in a private school for children with developmental disabilities. An impartial hearing officer upheld the CSE's recommendation with respect to the child's classification, but annulled its recommendation regarding the child's placement. In Application of the Board of Education of the Ellenville CSD, Appeal No. 94-43, I found that the child's re-evaluation was adequate to determine her individual needs, and her continuing eligibility to receive special education.
In October, 1995, petitioners reportedly requested that an impartial hearing be held because of respondent's alleged failure to maintain their daughter's "stay-put", or pendency placement as required by 20 USC 1415 (e)(3)(A), and Section 4404 (4) of the Education Law. In its answer to the petition in this appeal, respondent asserts that the hearing did not begin until February 13, 1996, because the individual who was initially appointed to be the hearing officer recused himself, and a new hearing officer had to be appointed. The hearing continued over an extended period of time, and had not been concluded when this appeal was commenced.
On October 4, 1996, which was reportedly the twenty-seventh day of the first hearing, respondent's attorney asked the hearing officer to assume jurisdiction over the issue of respondent's alleged failure to perform a triennial evaluation of the child within three years after her last evaluation at the Newington Children's Hospital in January, 1993. By letter dated October 2, 1996, petitioners had requested that a hearing be held with regard to the child's lack of a triennial evaluation. Petitioners' lay advocate at the hearing objected to respondent's request. She argued that the issue of whether respondent had failed to re-evaluate the child was a separate issue from the issue of whether it had properly implemented the child's pendency placement. The hearing officer took under advisement respondent's motion to consolidate the issue of the evaluation with the other issues which were pending before him. On October 22, 1996, the hearing officer informed the parties that he would consolidate the evaluation issue with the other issues.
The hearing on the issue of the child's triennial evaluation began on November 12, 1996, and it ended on November 14, 1996. At the outset of the hearing, respondent's attorney acknowledged that petitioners' daughter had not been evaluated since her previous triennial evaluation at the Newington Children's Hospital in January, 1993. The attorney briefly alluded to the parties' disputes about the child's prior evaluations, and asked the hearing officer to order that the child be appropriately evaluated at a facility which was satisfactory to both parties. Petitioners asked that the hearing officer order the school district to provide their daughter with an additional year of education beyond the date when she would no longer be eligible to receive educational services from respondent, in order to compensate for respondent's failure to obtain a triennial evaluation.
Respondent's Director of Pupil Personnel Services testified that he notified petitioners that their child needed to have a triennial evaluation, in a letter dated May 21, 1996. In his letter, the Director of Pupil Personnel Services asked petitioners to: "Please contact me at the above telephone number to discuss personnel and sites for this comprehensive evaluation to take place" (Exhibit 3-II). He further testified that he had no record of either petitioner having called him about his letter, but he acknowledged that he had received a letter dated June 5, 1996, by the child's mother, who informed him that she had left a message for him over one week previously, and that the Director had not responded to her message. In her letter, the child's mother asserted that the school district had made it clear that there wasn't any facility in New York State which could appropriately evaluate her daughter, and that petitioners did not know where respondent intended to have the child evaluated. The Director testified that he believed that the letter by the child's mother did not provide the "input" which he had requested in his letter dated May 21, 1996. When asked to explain why the child's evaluation had been delayed, the Director testified that it was his understanding that representatives of the parties had been engaged in discussions about a settlement of various issues which were then in dispute, among which was the issue of the child's triennial evaluation. He acknowledged that he was not a participant in the alleged settlement discussions, and that he had no document which indicated that the child's triennial evaluation was an issue which was being discussed.
On November 14, 1996, the hearing officer orally ruled that respondent had failed to perform a timely triennial evaluation of petitioners' daughter. He had previously ascertained that respondent intended to have the child evaluated again at the Newington Children's Hospital, and that petitioners did not object to having the child evaluated at that facility. The hearing officer directed respondent to immediately make arrangements to have the child evaluated at the Newington Children's Hospital. He further ordered the parties to confer with respect to the reasonably anticipated expenses petitioners would incur by accompanying their daughter to the evaluation, and he directed respondent to advance petitioners the funds necessary to pay for those expenses. The hearing officer also ordered respondent to promptly reimburse petitioners for any additional, reasonable expenditures, upon petitioners' submission of the proper claim forms.
With respect to petitioners' request for an order directing respondent to provide the child with one year of compensatory education, the hearing officer invited the parties to orally argue their respective positions, and he also offered them the opportunity to submit written argument. Petitioners requested that the hearing officer make an immediate decision, but he reserved decision on their request for compensatory education.
In his written decision, which was dated November 16, 1996, the hearing officer found that respondent had failed to perform a triennial evaluation, as required by the Regulations of the Commissioner of Education, and he ordered respondent to make arrangements for the evaluation to be performed at the Newington Children's Hospital, and to pay for petitioners' expenses, as he had previously directed at the hearing. On the issue of petitioners' request for compensatory education, the hearing officer asserted that the remedy of compensatory education was available only when a school district's actions had "grossly violated" the provisions of the Individuals with Disabilities Education Act (20 USC 1400 et seq.), and the district's violation had "disastrous results". He found that respondent's failure to have the child evaluated on a timely basis was not a gross violation of the Federal statute, and had not produced disastrous results. The hearing officer noted that because of the long standing dispute between the parties, the child had continued to be educated pursuant to an individualized education program (IEP) which had been prepared for the 1990-91 school year. He further noted that the results of the child's last evaluation in 1993 had not been used by respondent's committee on special education to prepare a new IEP for the girl, since the child continued to use the 1990-91 IEP, and he concluded that respondent's failure to perform a new evaluation had no direct impact upon the educational program which the child had received. The hearing officer also considered, but rejected, petitioners' request that he order that the child receive compensatory education, or provide some other form of relief, as a penalty against respondent.
I note respondent has raised the affirmative defense that this appeal is untimely. It asserts that the hearing officer's decision was hand delivered to both parties on November 18, 1996, and that the petition was not served upon respondent until January 10, 1997, which was the sixty-third day after the decision was received. Petitioners acknowledge that their petition was not served within the requisite forty-day period (see 8 NYCRR 279.2 [b]). They ask that their delay be excused because they were out-of-state on a pre-planned trip when the petition was due to be served, and they were unsuccessful in having an attorney prepare the petition for them. Since the underlying issue in this proceeding is the prompt completion of the child's triennial evaluation, which both parties agree should be done, and my consideration of this appeal should not in any way delay respondent from having the evaluation performed, I will excuse petitioners' delay.
Respondent also asserts that the petition is defective because it is not verified, as it is required to be by 8 NYCRR 275.5 and 279.1. However, the child's mother verified the copy of the petition which was filed with the State Education Department. Although petitioners should have served a verified copy of the petition upon respondent, I will not dismiss their petition because they failed to do so (Application of a Child with a Disability, Appeal No. 95-41).
Petitioners contend that the hearing officer's decision should be annulled because he lacked the authority to conduct a hearing, and to render a decision with respect to the child's triennial evaluation. They argue that upon receipt of petitioners' request for a hearing about the failure to perform an evaluation, respondent was required to appoint a new hearing officer from its rotational list of hearing officers, in accordance with the provisions of Section 4404 (1) of the Education Law, and 8 NYCRR 200.2 (e)(1). The Board of Education must select the first available individual on its rotational list of hearing officers, and must then place that individual's name at the bottom of its rotational list. Petitioners assert that the hearing officer who was conducting the hearing which they had requested in October, 1995 could not have been lawfully appointed to conduct the hearing which they requested in October, 1996. Respondent argues that the hearing officer had authority to consolidate the issue which petitioners raised in their October, 1996 hearing request with the issues which were before him as a result of their October, 1995 hearing request.
Neither Federal nor State Law prevents the consolidation of issues raised by separate requests for hearings for determination by one hearing officer in a single proceeding (Application of a Child with a Disability, Appeal No. 95-51; Application of a Child with a Disability, Appeal No. 96-43; Application of a Child with a Disability, Appeal No. 96-45). However, there are limits to a hearing officer's discretionary power to consolidate issues. A hearing officer may not accept jurisdiction over any and all disputes which may arise between the parties in the future (Application of a Child with a Disability, Appeal No. 96-45).
Petitioners contend that the hearing officer applied an erroneous legal standard to their claim for compensatory education. They assert that neither of the two decisions upon which the hearing officer relied, Burr by Burr v. Ambach, 863 F.2d 1071 [2d Cir., 1988]; Mrs. C. v. Wheaton, 916 F.2d 29 [2d Cir., 1990], stand for the proposition that the remedy of compensatory education is available only when a school district has gross violated the Individuals with Disabilities Education Act. I must note that in both Burr and Mrs. C. the child had been excluded from school for an extended period of time. While I do not in any way condone respondent s inexplicable delay in arranging for the childs triennial evaluation, that there is no evidence in the record before me that the child was denied any educational opportunity as a result of respondent's failure to perform its duty. Under the circumstances, I find that there was no basis for an award of compensatory education (Application of a Child with a Disability, Appeal No. 95-45; Application of a Child with a Disability, Appeal No. 95-57). Respondent is admonished to observe the Federal and State requirement that triennial evaluations be performed on a timely basis.
THE APPEAL IS DISMISSED.