98-005

       Petitioners appeal from an impartial hearing officer's refusal to recuse himself from conducting a hearing over petitioners' objection that the hearing officer lacked subject matter jurisdiction because he had not been selected in accordance with the procedure prescribed by Section 4404 (1) of the Education Law and 8 NYCRR 100.2 (e). The appeal must be dismissed.

        Respondent contends that I lack jurisdiction to consider this appeal because the hearing officer has not rendered a decision with regard to the child's disability, special education program, or services (see Section 4404 [2] of the Education Law). I disagree with respondent (see Application of a Child with a Handicapping Condition, Appeal No. 91-46; Application of a Child Suspected of Having Handicapping Condition, Appeal No. 91-47; Application of a Child with a Handicapping Condition, Appeal No. 92-46). Nevertheless, I note that on January 1, 1998, the Regulations of the Commissioner of Education were amended to provide that interim determinations by impartial hearing officers, except decisions involving pendency placements, cannot be appealed to the State Review Officer (8 NYCRR 279.10 [b]). However, I will accept this appeal because it was commenced by service of the petition upon respondent prior to January 1, 1998.

        Petitioners' daughter, who is now eighteen years old, has been the subject of virtually continuous due process proceedings for at least ten years. Some of those proceedings are noted in my decision in the Application of a Child with a Disability, Appeal No. 97-83. The present proceeding began in October , 1995, when petitioners reportedly requested that an impartial hearing be held to determine whether respondent had failed to maintain their daughter's pendency placement pursuant to 20 USC 1415 (e) (3) (A) and Section 4404 (4) of the Education Law. On December 11, 1995, the hearing officer who was initially appointed by respondent to conduct the hearing recused himself, at petitioners' request, after the hearing officer discovered that he had been appointed out of order from respondent's rotational list of hearing officers. On December 19, 1995, respondent appointed the present hearing officer, who had reportedly been skipped over when the original hearing officer was selected, to serve as the hearing officer in this proceeding. The hearing in this proceeding reportedly began on February 13, 1996. It has yet to be concluded.

        On December 16, 1997, approximately two years after respondent had appointed this hearing officer, petitioner asked the hearing officer to recuse himself because he allegedly had been improperly appointed by respondent in 1995. Specifically, they alleged that the names of five other hearing officers should have been above this hearing officer's name on respondent's rotational list of hearing officers. Respondent opposed petitioners' request on the ground that petitioners had not objected to the hearing officer's appointment on a timely basis. The hearing officer denied petitioners' request, and this appeal ensued.

        Respondent argues that petitioners are barred by the equitable doctrine of laches because they failed to challenge this hearing officer's appointment in December, 1995 or at any subsequent time until December 16, 1997. Respondent asserts that the hearing officer has already presided over more than 80 days of hearings in this proceeding, and that it would be substantially prejudiced if the hearing officer's appointment is now invalidated. In the alternative, respondent argues that the doctrine of equitable estoppel should bar petitioners from asserting their claim that the hearing officer was invalidly appointed, again on the ground that petitioners waited too long to assert their claim.

        The child's mother asserts in an affidavit which is annexed to the petition, that she did not become aware that the hearing officer "lacked subject matter jurisdiction", i.e., was appointed out of rotation, until November, 1997, when she examined the hearing transcript of another child to ascertain the identity of the hearing officer who had conducted that child's hearing on January 11, 1994. However, petitioners have also submitted what is apparently respondent's five-name rotational hearing officer list as of June 27, 1995, which is far more germane to the question of the order of a selection for a hearing request filed in the fall of 1995. Petitioners assert that a sixth name was added to the list at some point in time, because a seventh name was added to respondent's list on December 19, 1995, the same day that the replacement hearing officer was appointed to serve in this proceeding. However, there is no proof as to when the sixth hearing officer's name was added to the list. In addition, I must note that hearing officers are selected in the order that their names appear on a list, provided that each individual accepts an appointment when it is offered to him or her.

        Normally, respondent would have the burden of demonstrating that it had selected the hearing officer in accordance with the procedure prescribed by statute and regulations, which require that the names of hearing officers be placed on the bottom of a board of education's rotational list after they serve as hearing officers (8 NYCRR 200.2 [e]). However, I am constrained to agree with respondent that petitioners' challenge comes far too late. It is my responsibility to render determinations which properly effectuate the purposes of Article 89 of the Education Law. Article 89, and its Federal counterpart, the Individuals with Disabilities Education Act, provide a due process mechanism to promptly resolve the disputes which arise between parents and school districts, so that children will receive appropriate special education services. The present proceeding about the nature of the child's pendency placement in the 1995-96 school year should have resolved the parties' dispute long ago. It is clearly not in this child's best interest to force the parties to start all over again before another hearing officer. Therefore, I will not require respondent to submit additional evidence about the hearing officer's appointment.

THE APPEAL IS DISMISSED.