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Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of New York.


Hon. Paul A. Crotty, Corporation Counsel, attorney for respondent, Orrit Hershkovitz, Esq., of counsel


        Petitioner appeals from the decision of an impartial hearing officer which held that respondent had failed to meet its burden of demonstrating the appropriateness of its modified instructional services –I (MIS-I) program for petitioner’s son, and which directed respondent to provide petitioner with a "P-1" letter, pursuant to which the boy could be enrolled in an approved private school, at respondent’s expense, for the 1997-98 school year. In addition, the hearing officer ordered the child to be independently evaluated, at respondent’s expense, and directed respondent’s committee on special education (CSE) to review the results of the evaluation and recommend an appropriate placement for the boy. Petitioner challenges the manner in which the hearing was conducted, as well as the hearing officer’s determination that he lacked jurisdiction to determine certain issues which her representative had raised at the hearing. The appeal must be dismissed.

        At the outset, I note that respondent asks me to excuse its delay in serving its answer to the petition in this appeal. Section 279.5 of the Regulations of the Commissioner of Education requires that an answer to a petition be served within 10 days after service of the petition. The petition in this appeal was served upon the board of education on September 4, 1997. Respondent’s answer was served on September 17, 1997. Since the 10th day after service of the petition was Sunday, September 14, 1997, the answer could have been timely served on Monday, September 15, 1997 (8 NYCRR 275.8 [b]). In view of the fact that respondent served its answer two-days thereafter, and in the absence of any showing of prejudice to petitioner, I will excuse respondent’s brief delay.

        Petitioner’s son, who is fifteen years old, has been classified as learning disabled. He has reportedly been enrolled since 1993 in respondent’s MIS-I program, which involves self-contained special education classes of no more than fifteen children. Petitioner has not previously objected to her son’s enrollment in the MIS-I program. During the 1996-97 school year, the boy was enrolled in an eighth grade MIS-I class. He was allegedly suspended from school on three occasions. The extremely limited record which is before me does not reveal whether any nexus determination was made by respondent’s CSE, i.e., whether the conduct with which the pupil was charged was related to his disability (see Appeal of a Student with a Disability, 36 Ed. Dept. Rep. 273). The record also does not reveal the specific circumstances under which the hearing in this proceeding was requested.

        On April 14, 1997, petitioner’s lay advocate and an attorney for respondent appeared before an impartial hearing officer. The lay advocate asserted that petitioner questioned the appropriateness of her son’s placement in the MIS-I program, and that there were other issues which he wanted the hearing officer to consider. The lay advocate asserted that the boy had been unilaterally transferred from a MIS-I class in one school to a MIS-I class in another school. He also asserted that the boy’s special education records and his cumulative record had been withheld from petitioner. He also alluded to the boy’s prior suspensions from school, at least one of which had been addressed elsewhere. The lay advocate alleged that the police had violated the boy’s due process rights, while acting in concert with respondent’s agents.

        The impartial hearing officer advised the lay advocate that while there was a separate appeals procedure for the withholding of records under the Family Educational Rights and Privacy Act (FERPA), he would nevertheless direct respondent to provide petitioner with the records which she had requested, so that petitioner could adequately prepare for the impartial hearing regarding the appropriateness of her son’s MIS-I placement. He declined to order that the child be returned to his previous MIS-I class, on the ground that pendency (see Section 4404 [4] of the Education Law) attached to the educational program, not to the site of the program. Respondent was directed to provide the requested records "by the end of the week," and the hearing was adjourned until May 12, 1997.

        When the hearing resumed on May 12, 1997, the lay advocate asserted that respondent had not provided copies of the boy’s records within the deadline set by the hearing officer, and that the boy’s anecdotal record, his individual education program for 1996, and a copy of a letter seeking a site variance which petitioner had written in March, 1996 had still not been provided. The hearing officer spoke on the telephone with a crisis intervention teacher at the boy’s then present school about gathering the boy’s records, and he asked the CSE representative at the hearing to contact the principals of the boy’s former and present schools about searching for the boy’s records.

        Before adjourning the hearing to May 27, 1997, the hearing officer noted that his review of the documentary evidence which was to be introduced at the hearing revealed that the CSE which had prepared the boy’s IEP for 1995 lacked each of the required members, and that the IEP was therefore a nullity. He indicated that he would direct respondent to issue a P-l 1etter allowing petitioner to place her son in a private school, at respondent’s expense. However, petitioner’s lay advocate asserted that petitioner did not want to place the boy in a private school. The hearing officer also indicated that his review of the documents which respondent intended to introduce into evidence had led him to conclude that the boy’s MIS-I placement was inappropriate because he had not made academic progress in that placement. He concurred with an agreement which the lay advocate and the CSE representative had reached that respondent would provide "home instruction" to the boy in a school setting near his home, as an interim measure. The hearing officer directed that a consultant teacher work with the boy’s teachers for this interim plan and his former teachers to develop a new learning plan for the boy. He also directed respondent to provide the missing records about the boy to petitioner by May 21, 1997.

        The hearing resumed on May 27, 1997. As in the two preceding hearings, no evidence was formally introduced, and no witness testified. The hearing officer, petitioner’s lay advocate, and the CSE representative continued their colloquy about the issues in this proceeding. The CSE representative, while challenging the hearing officer’s observation about the composition of the CSE which had prepared the boy’s IEP, conceded that the boy had made little, if any, progress academically. In response to a question by the hearing officer, the CSE representative acknowledged that the evidence which was available to her would not afford a basis for demonstrating the appropriateness of the boy’s educational program. The hearing officer asked the lay advocate, who was opposed to having the hearing officer remand the matter to the CSE because the CSE had already had "one bite at the apple," whether the clinical, i.e., evaluative, information which the CSE had was adequate to determine what would be an appropriate educational program for the boy. The lay advocate asserted that it would not be adequate for that purpose. To address the lay advocate’s concern about having the CSE re-evaluate the boy, the hearing officer indicated that he would provide for the boy to be independently evaluated, at respondent’s expense. Nevertheless, the lay advocate urged the hearing officer to exercise "tangential jurisdiction" to ascertain the cause for the inappropriateness of the boy’s placement. The hearing officer declined to do so, and closed the hearing.

        In an interim order dated July 11, 1997, the hearing officer noted that he had discovered that no evidence had been entered by either party, and that he had directed respondent’s Impartial Hearing Office to so advise the parties. Thereafter, respondent had submitted the packet of documents which had been alluded to during the hearing, but not formally introduced into evidence. The hearing officer’s interim order afforded petitioner an opportunity to submit documentary evidence by no later than July 21, 1997.

        On July 29, 1997, the hearing officer rendered his decision in this proceeding. He determined that the boy’s uncle, who had been designated by petitioner as her "attorney in fact," could legitimately request the impartial hearing on behalf of petitioner, and could represent her at the hearing. The hearing officer noted that the boy appeared to be a significantly learning disabled youth for whom the special education services which the CSE had recommended did not seem to have been successful. He suggested that respondent had subordinated the child’s right under the Individuals with Disabilities Education Act (20 USC 1400 et seq.) to "other building-level concerns" about the boy’s behavior. The hearing officer found that the CSE had failed to demonstrate the appropriateness of the child’s educational placement, and he directed respondent to issue a P-1 letter to petitioner for the boy’s placement during the 1997-98 school year. He ordered that the child be privately evaluated, at respondent’s expense, by no later than August 15, 1997, with the proviso that if the report of that evaluation was not available to the CSE by September 1, 1997, the CSE could conduct the evaluation. The hearing officer directed the CSE to review the results of the boy’s evaluation, and to recommend an appropriate placement for him, by no later than September 15, 1997.

        The initial issue which I must determine with respect to the substance of petitioner’s appeal is whether the hearing officer’s decision should be annulled because of the paucity of the record which was before him. It is the duty of each hearing officer to ensure that there is an adequate record upon which to premise his or her decision, and to permit a meaningful review of the issues (Application of the Board of Education of the City School District of the City of New York, Appeal No. 94-35; Application of the Board of Education of the City School District of the City of New York, Appeal No. 95-25; Application of the Board of Education of the City School District of the City of New York, Appeal No. 95-76). Despite the absence of any testimonial evidence and the limited documentary evidence which was purportedly entered into the record pursuant to the hearing officer’s interim order, there does not appear to be any dispute that the boy’s MIS-I placement is not appropriate, and that an additional evaluation needs to be conducted. To remand this matter to the hearing officer to open the record for the purpose of properly receiving sufficient evidence to support his determination would not, in my judgment, be in the boy’s best interests. His special education needs should be promptly ascertained, and the CSE should recommend an appropriate educational program for him, as the hearing officer had directed.

        Petitioner asserts that the hearing officer’s decision was untimely. Federal and State regulations require each board of education to ensure that its hearing officers render their decisions within 45 days after the board receives the request for a hearing (34 CFR 300.512 [a]; 8 NYCRR 200.5 [c][11]). However, a hearing officer may extend the 45-day limit at the request of either party (34 CFR 300.512 [c]). The record does not disclose when petitioner requested the hearing. At the hearing on April 14, 1997, the hearing officer indicated that he would extend the 45-day limit by 30 days. He extended the deadline by an additional 15 days on May 12, 1997. Although it does not appear that he was asked by either party to do so, the hearing officer extended the deadline in good faith, to reflect the fact that the hearing was twice adjourned to allow petitioner to obtain the records which she had requested. In his final decision the hearing officer noted that he had been precluded from rendering the decision more promptly by illness, and by his discovery that no document had been entered into evidence. While I am compelled to find that respondent did not meet its obligation to ensure that the hearing officer’s decision was rendered in accordance with the regulatory time limit, I find that it does not afford a logical basis for annulling the hearing officer’s decision (Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-33; Application of a Child with a Handicapping Condition, Appeal No. 92-32).

        Petitioner also challenges the hearing officer’s determination to close the hearing, without allowing her advocate to put on an affirmative case, or to demonstrate why the hearing officer should consider the other issues to which her advocate had alluded at the outset of the hearing. Each party has the right to present evidence and confront witnesses at an impartial hearing (34 CFR 300.508 [a][2]; 8 NYCRR 200.5 [c][9]). However, the board of education had the burden of establishing, by at least a prima facie case, that the boy’s educational program was appropriate. Since the CSE representative conceded that she could not meet that burden of proof (Transcript for May 27, 1997, page 38), there was no purpose in having petitioner attempt to prove that the educational program was inappropriate. I note that on two occasions during the hearing, petitioner’s lay advocate asserted that he should have the opportunity to demonstrate the alleged misconduct of respondent’s employees (Transcript for April 14, 1997, page 8, and Transcript for May 12, 1997, page 20). Whatever grievances petitioner may have with respondent and its employees, I must agree with the hearing officer that those charges are clearly outside the scope of a proceeding under 20 USC 1415, or Section 4404 of the Education Law (Application of a Child with a Handicapping Condition, Appeal No. 91-18). One of the other issues which petitioner apparently wished to address was respondent’s alleged violation of FERPA, with regard to producing the child’s records for petitioner’s review and/or use. Petitioner’s lay advocate indicated at the hearing that petitioner had requested copies of the boy’s records, before she requested that an impartial hearing be held. The hearing officer could, and did, assist petitioner in obtaining her son’s records for the hearing. However, the vindication of FERPA claims is beyond the scope of impartial hearings and appeals to the State Review Officer. As the hearing officer noted, there is a separate procedure for pursuing those claims (Application of a Child with a Disability, Appeal No. 94-28; Application of a Child with a Handicapping Condition, Appeal No. 92-38).

        It appears from the hearing transcript and her petition that petitioner wishes to challenge the validity of one or more of her son’s suspensions from school. While I can appreciate her wish to have a single forum in which she can seek relief for a number of different grievances, I must again concur with the hearing officer’s determination that the focus of an impartial hearing pursuant to Section 4404 of the Education Law must be upon the appropriateness of the child’s educational program and placement. There are other remedies for an alleged violation of a student’s rights in a disciplinary proceeding (see Section 3214 of the Education Law, Section 310 of the Education Law).


Topical Index

Educational PlacementSpecial Class
Parent Appeal
Preliminary MattersAdditional Evidence/Record Issues
Preliminary MattersConduct of Impartial Hearing
Preliminary MattersResponse to Due Process Complaint Notice
Preliminary MattersScope of Hearing
Preliminary MattersScope of Review