98-009

        Petitioners appeal from an impartial hearing officer's determination dated January 6, 1998, that respondent had complied with the hearing officer's earlier directive requiring it to arrange for the triennial evaluation of petitioners' daughter at what is now the Connecticut Children's Hospital (formerly known as Newington Children's Hospital) in Newington, Connecticut. For purposes of this decision, the hospital's former name will be used. Petitioners contend that the hearing officer lacked subject matter jurisdiction to render his decision. Their appeal must be dismissed.

        This is another in a series of appeals which had been brought about the triennial evaluation of petitioners' daughter whose last triennial evaluation was performed in January, 1993, at what was then the Newington Children's Hospital. Her next triennial evaluation should therefore had been completed by no later than January, 1996. It has yet to be performed.

        On October 2, 1996 petitioners requested that an impartial hearing be held with respect to respondent's alleged failure to have their child re-evaluated as required by Federal and State regulations (see 34 CFR 300.534 [b]; 8 NYCRR 200.4 [e][4]). At the time of petitioners' request for a hearing, the parties were in the midst of another hearing with regard to respondent's alleged failure to maintain the girl's pendency placement. Over petitioners' objection, the hearing officer granted respondent's request to consolidate petitioners' new hearing request with their previous hearing request into a single proceeding. The hearing officer took testimony from the parties on November 12 and 14, 1996 with regard to the issue of the child's triennial evaluation. On the latter date, he orally ruled that petitioner had failed to perform a timely triennial evaluation of petitioners' daughter. The hearing officer ordered respondent to immediately make arrangements to have the child evaluated at the Newington Children's Hospital.

        On November 26, 1996, the hearing officer issued a written decision which again found that respondent had failed to perform a triennial evaluation on a timely basis. He ordered respondent to make arrangements for the evaluation to be performed at the Newington Children's Hospital, and to pay for petitioners' expenses in connection therewith. The hearing officer further determined that respondent's failure to perform a triennial evaluation within the requisite three-year period had not had a direct impact upon the child's educational program, because she was still being educated in accordance with her individualized education program for the 1990-91 school year as a result of the continuing due process proceedings since that school year. He denied petitioners' request that respondent be ordered to provide compensatory education for the girl.

        Petitioners appealed from the hearing officer's decision. In Application of a Child with a Disability, Appeal No. 97-4, dated February 14, 1997, I dismissed their appeal, upon finding that the hearing officer had the power to consolidate the two proceedings, and that he had correctly determined that there was no basis for an award of compensatory education.

        On February 11, 1997, the hearing officer granted petitioners' motion to reopen the proceeding with regard to their daughter's triennial evaluation. Petitioners had alleged that respondent had failed to comply with the hearing officer's November 16, 1996 decision, because it had not made immediate arrangements with the Newington Children's Hospital to have the girl's triennial evaluation performed. The hearing officer indicated that he would take testimony about the matter on February 19 and 20, 1997. On February 19, 1997, respondent's then chairperson of its committee on special education (CSE) testified about the arrangements which he had made with the Newington Children's Hospital to have the girl evaluated. Respondent introduced into evidence correspondence from the Newington Children's Hospital showing that appointment times for the evaluation had been reserved during the week of March 3-7, 1997. The hearing was scheduled to resume on February 20, 1997. Early in the morning on that date, the hearing officer received a phone message from petitioners indicating that they would be unable to attend that day. Noting that the child's evaluation was imminent, the hearing officer issued a decision on February 21, 1997, in which he found that respondent had at least presented a prima facie case that it had fully complied with his previous decision. He ordered petitioners to contact the CSE chairperson by no later than February 24, 1997, to confirm that they would take their daughter to the Newington Children's Hospital for the scheduled evaluation.

        Petitioners appealed from the hearing officer's decision. While their appeal was pending, petitioners also applied to the hearing officer to reopen his decision because they had not had the opportunity to cross-examine the then CSE chairperson, or to offer any evidence on their behalf. On March 17, 1997, the hearing officer granted petitioners' application to reopen. Petitioners' appeal was subsequently dismissed as moot (Application of a Child with a Disability, Appeal No. 97-23).

        The hearing with regard to the issue of respondent's compliance with the hearing officer's decision resumed on April 11, 1997, and it continued on April 15, 1997, May 2, 1997, May 30, 1997, June 2, 1997, June 20, 1997, and November 17, 1997. In his decision, dated January 8, 1998, the hearing officer reviewed the events which had occurred subsequent to his November 16, 1996 decision. Among other things, he found that petitioners had failed to sign and return certain release forms and information questionnaires to the Newington Children's Hospital, despite two requests to do so. He noted that on May 2, 1997, the child's mother testified that she had not taken the child to be evaluated at the Newington Children's Hospital in March, 1997 because " … it was no longer appropriate" (Transcript, page 7628). The hearing officer found that petitioners' actions and lack of cooperation had delayed the scheduling of the evaluation, and had ultimately nullified all attempts by respondent and the Newington Children's Hospital to have the evaluation performed. He found that respondent and its CSE had acted with all appropriate immediacy in attempting to arrange to have the child's triennial evaluation performed in accordance with his decision of November 16, 1997. He ordered respondent to ask the Newington Children's Hospital to re-schedule a triennial evaluation of petitioners' daughter, and to forward a schedule for the evaluation to petitioners. He further ordered that respondent be relieved of its obligation to have the child re-evaluated if petitioners failed to present the child for evaluation at the scheduled time.

        Respondent asserts that petitioners were untimely in bringing their appeal because the petition to review the hearing officer's decision was not served upon the board of education until 42 days after petitioners had presumably received a copy of the hearing officer's decision. The Regulations of the Commissioner of Education require that the petition be served within 40 days after receipt of a hearing officer's decision (8 NYCRR 279.2 [b]). Respondent's argument is premised upon its belief that petitioners received a copy of the hearing officer's decision on January 7, 1998, when the board of education received its copy of the decision. In their reply, petitioners allege that they did not receive the hearing officer's decision until January 10, 1998, and that they served the petition on the 40^th day thereafter. I find that respondent has not met its burden of proof regarding its affirmative defense of untimeliness.

        Respondent contends that the doctrine of equitable estoppel bars petitioners from contesting the hearing officer's subject matter jurisdiction because they had asked the hearing officer to reopen his November 26, 1996 decision to determine whether respondent had subsequently complied with that decision. Respondent argues that petitioners may not now argue that the hearing officer lacks the jurisdiction to do precisely what they had asked him to do in February, 1997, i.e., to determine if the school district had complied with the hearing officer's earlier decision. Equitable estoppel is generally invoked to prevent one party who by words or actions has represented that certain facts are true, thereby inducing another party to act to his or her detriment, from subsequently denying the truth of those facts (Travelers Intern. A.G. v. TransWorld Airlines Inc., 722 F. Supp. 1087 [S.D. N.Y., 1989]). It is an intentional relinquishment of a known right (Orange Steel Erectors, Inc. v. Newburgh Steel Products, Inc., 225 AD 2d 1010 [ 3d Dept. 1996]). Although petitioners' present position is puzzling, I find that it does not afford a basis for invoking the doctrine of equitable estoppel. The issue of whether the hearing officer had subject matter jurisdiction is a legal issue, which I must determine.

        Petitioners object to respondent's submission of additional evidence in the form of fourteen exhibits to an affidavit by respondent's Director of Pupil Personnel Services. Respondent offers the exhibits to make a more complete record. I note that Exhibits H-N relate to matters which have occurred subsequent to the hearing officer's decision on January 6, 1998, and I find that those exhibits are not necessary to make the record more complete. Exhibit A is a copy of my decision in a prior proceeding which partly involved this child's last evaluation at the Newington Children's Hospital in 1993 (Application of the Board of Education of the Ellenville Central School District, Appeal No. 94-43). I find that it is unnecessary to complete the record, as I may take administrative notice of my prior decisions. Exhibits B-D relate to the hearing officer's consolidation of petitioners' request for a hearing about the triennial evaluation with petitioners' prior hearing request. The consolidation was the subject of a prior appeal, and it will not be reviewed in this proceeding. Therefore, I find that Exhibit B-D are not necessary to make the record complete. The remaining documents, Exhibits E-G are copies or portions of copies of hearing transcripts which are redundant with the existing record, and are unnecessary. For purposes of this decision, which involves the actions taken by the parties for the implementation of the hearing officer's decision of November 16, 1996, and petitioners' request that the hearing officer reopen his decision, I have considered pages 5329 to 5338 of the hearing transcript for February 10, 1997, as well as the transcripts for February 11, 1997, February 14, 1997, February 28, 1997, April 11, 1997, April 15, 1997, May 2, 1997, June 2, 1997, June 20, 1997 and November 17, 1997.

        The record reveals that at the ongoing hearing on February 10, 1997, petitioners' lay advocate asked the hearing officer to reopen the hearing with regard to the girl's triennial evaluation because the evaluation had not been performed within the six to eight week time period that the then-CSE chairperson had allegedly indicated the evaluation would require. The child's mother told the hearing officer that she did not want him to enforce his prior decision. Instead, she wanted him to order that her daughter be independently evaluated " … with experts of our choice" (Transcript, page 5335). On February 11, 1997, petitioners again raised the issue of their child's triennial evaluation. However, petitioners asserted that the hearing officer lacked jurisdiction over the matter of the girl's triennial evaluation because he had not been appointed by respondent to conduct a hearing about the evaluation. Noting that the issue of the hearing officer's jurisdiction had been raised in their appeal from the hearing officer's November 16, 1997 decision, and that their appeal had not been decided, the child's mother stated that "we ask that you reopen the hearing in the event that the State Review Officer may determine otherwise" (Transcript, pages 5461-5462). On February 14, 1997, petitioners reiterated their position that the hearing officer lacked jurisdiction over the matter of the child's triennial evaluation, but they nevertheless asked the hearing officer to reopen the hearing, in case the State Review Officer did not sustain their appeal (Transcript, page 5668). They also purported to condition their request that the hearing officer reopen his November 16, 1996 decision upon the hearing officer's willingness to render his decision in the reopened matter within 45 days (Transcript, page 5669). Although it was unknown to the parties during the hearing on February 14, 1997, I rendered my decision that day in petitioner's appeal from the hearing officer's decision ordering that the child be evaluated and denying petitioners request for compensatory education. In Application of a Child with a Disability, Appeal No. 97-4, I rejected petitioners' contention that the hearing officer lacked jurisdiction over the issue of the child's triennial. Therefore, the contingency which petitioners had anticipated, i.e., that their appeal would be dismissed, had occurred.

        When the hearing resumed on February 19, 1997, respondent's attorney apprised the hearing officer of the outcome of petitioners' appeal. The child's mother asked the hearing officer to " … amend your order and your decision. We are asking that you permit us to select the evaluators that will test our child … We want you to order that the school district make available funds so that we do not have to hope and pray for reimbursement" (Transcript, page 5874). Thereafter, the then-CSE chairperson testified about what had been done to implement the hearing officer's prior decision. Petitioners began, but did not complete, their cross-examination of the then-CSE chairperson.

        As noted above, petitioners notified the hearing officer that they would not attend the hearing scheduled to take place on February 20, 1997. On February 21, 1997, the hearing officer issued his decision finding that respondent had fully complied with his prior decision ordering it to immediately arrange for the child's triennial evaluation. He ordered petitioners to notify the CSE chairperson and the Newington Children's Hospital whether they would present the child for the scheduled evaluation in March, 1997 (Exhibit B-IV). However, the hearing officer subsequently reopened the hearing with regard to respondent's implementation of his November 16, 1996 decision.

        Having reviewed the transcripts of the hearings which were held on April 11, 1997, April 16, 1997, May 2, 1997, May 30, 1997, June 2, and November 17, 1997, I find that both parties were afforded an adequate opportunity to present their cases with respect to the fairly narrow issue of what respondent had done to implement the hearing officer's November 16, 1996 decision. Petitioners have not challenged any specific factual determination by the hearing officer. They simply argue that pursuant to Section 4404 (1) of the Education Law and Section 200.5 (c) of the Regulations of the Commissioner of Education, no impartial hearing officer is empowered to determine whether or not one of his or her prior orders has been followed. Petitioners further argue that the statute and regulation do not authorize a hearing officer to determine the appropriate relief to be granted for a perceived failure to obey a hearing officer's decision.

        Although petitioners are correct that the statute and regulation do not specifically address the question of whether a hearing officer may reopen his or her decision upon the request of one or more of the parties, it does not follow that the hearing officer in this proceeding lacked the authority to do so. I must note that the hearing officer had expressly retained jurisdiction in his decision dated November 16, 1996, for the purpose of resolving any dispute between the parties about the reasonableness of the parents' claims for reimbursement for the expenses which they might incur in transporting and accompanying their daughter to the Newington Children's Hospital for the evaluation. In other words, he had retained jurisdiction over the implementation of his decision and order. Although a hearing officer may not retain jurisdiction over any and all future disputes between the parties (Application of a Child with a Disability, Appeal No. 96-45), the jurisdiction which the hearing officer exercised at petitioner's request in this instance was far more circumscribed. It was limited to the implementation of his November 16, 1996 decision ordering respondent to "immediately arrange for the Newington Children's Hospital, Newington, Connecticut, to conduct all reevaluations necessary to constitute an appropriate triennial evaluation". I find that the hearing officer had jurisdiction over the subject matter in this proceeding. Since that is the only question which petitioners have chosen to present, I must conclude my review of the hearing officer's decision dated January 6, 1998.

        For the benefit of both parties, I will note that the board of education has the right to select the individuals or institutions to evaluate this child (Vander Malle v. Ambach, 673 F. 2d 49 [2d Cir., 1982]; Rettig v. Kent City School District, 720 F. 2d 466 [6^th Cir., 1983]; DuBois v. Connecticut State Board of Education, 727 F. 2d 48 [2d Cir., 1984]). In the event that petitioners are dissatisfied with the evaluation performed for the board of education, they may obtain an independent evaluation at respondent's expense, subject to respondent's right to establish that its evaluation is appropriate (34 CFR 300.503; 8 NYCRR 200.5 [a][1][vi]). However, it is incumbent upon both parties to work together to ensure that this child is promptly evaluated, so that she can receive the services which address her current needs (Tucker v. BayShore UFSD, 873 F. 2d 563 [2d Cir., 1989]).

THE APPEAL IS DISMISSED.