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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


Advocates for Children of New York, Inc., attorney for petitioner, Elisa Hyman, Esq. and Bethany Berger, Esq., of counsel

Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Blanche Greenfield, Esq., of counsel


        Petitioner appeals from an impartial hearing officer's decision which found that petitioner had withdrawn her request for a hearing to review a proposed change in her son's educational placement. The impartial hearing officer dismissed the matter with prejudice. The appeal must be sustained.

        Petitioner's son, who is 14 years old, is classified as emotionally disturbed. At the time of the hearing, he was enrolled in a modified instructional services-II (MIS-II) program in I.S. 302 in Brooklyn. On October 15, 1999, the staff at I.S. 302 referred the boy to the committee on special education (CSE) of Community School District 19 for a change of the boy's placement because of his allegedly inappropriate behavior. The CSE met with petitioner on October 28, 1999. It recommended that the boy be placed in respondent's specialized instructional environment-VIII (SIE-VIII) program, which has a 12:1+1 child-to-adult ratio. The CSE also recommended and that he receive individual and group counseling.

        On November 8, 1999, petitioner was offered a placement for her son in P.S. 369 K in Brooklyn. Petitioner did not accept the CSE's recommendation, and requested an impartial hearing to review the recommendation. Respondent's Impartial Hearing Office received her request on December 3, 1999. A hearing was scheduled to take place on December 23, 1999. The Impartial Hearing Office reportedly notified petitioner of the hearing date by first class and certified mail.

        When the hearing convened on December 23, 1999, petitioner appeared, but asserted that she had not received the notice sent by the Impartial Hearing Office. She alleged that she had become aware of the hearing while at respondent's offices for a superintendent's disciplinary hearing during the preceding week. Petitioner also denied that she had received a copy of her due process rights which had reportedly been sent to her with the scheduling notice. Petitioner requested an adjournment of the hearing in order to secure the services of an attorney to assist her. Her statements were apparently made before the record was opened, and were summarized by the hearing officer on the record. However, petitioner did briefly state on the record that the hearing officer had accurately summarized her remarks. The hearing officer granted petitioner's request for an adjournment until January 3, 2000, but she stated that: "I will note that I will not grant any further adjournments for that reason now" (Transcript, page 8).

        When the hearing resumed on January 3, 2000, the hearing officer examined an employee of the Impartial Hearing Office, who testified that the scheduling notice had been mailed to petitioner on December 7, 1999. Petitioner, who was not represented by an attorney, stated that she needed one, and she accused the hearing officer of being prejudiced against her. In essence, she asked the hearing officer to recuse herself, which the hearing officer declined to do (Transcript, page 22). The hearing officer noted that an attorney who was representing petitioner's family on another matter had indicated that he had referred petitioner to another attorney with regard to this matter. She informed petitioner that she was going to allow the Board of Education to proceed with its case, because she had determined that petitioner had been provided with ample notice of her right to be represented by an attorney and had had ample opportunity to obtain one (Transcript, page 24). She advised petitioner that "If you do not want this hearing to proceed you can withdraw your request for a hearing and I will dismiss it. And then if you want to ask for another hearing you can" (Transcript, page 25). Petitioner responded that she would like to do that. The hearing officer then indicated that she would note for the record that the hearing was being dismissed with prejudice (Transcript, page 25).

        Petitioner asserts that the hearing officer violated her due process rights by allegedly misleading her with regard to the effect of withdrawing her hearing request, and by denying her the right to be represented at the hearing by counsel. She notes that Federal and State regulations accord her the right to be represented by counsel at an impartial hearing (former 34 CFR 300.508 [a][1], now 34 CFR 300.509 [a][1]; 8 NYCRR 200.5 [c][9]). Petitioner asserts that the brief adjournment which she obtained during the holiday season was inadequate for her to obtain counsel.

        Respondent denies that petitioner's due process rights were violated. It asserts that petitioner had received clear notice from the hearing officer on December 23 that no additional adjournment would be granted. However, the Board of Education requests that an impartial hearing be ordered so that the appropriateness of the boy's recommended placement in a SIE-VIII class can be determined.

        I agree with both parties that a new hearing should be held. A hearing officer may decline to grant extensive adjournments (Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-5; Application of a Child with a Disability, Appeal No. 95-73; Application of a Child with a Disability, Appeal No. 96-43). However, when a parent is unrepresented by counsel and requests representation, a hearing officer should afford the parent a reasonable opportunity to obtain counsel (Application of a Child with a Disability, Appeal No. 93-2). I find that petitioner's request for an additional adjournment was reasonable, given the fact that the initial adjournment was for a short period of time during the busy holiday season. I am also concerned by the hearing officer's determination that petitioner's hearing request was dismissed with prejudice notwithstanding her representation to petitioner that she could ask for another hearing. The term "with prejudice" is normally considered to mean that the issue cannot be raised again. In any event, the appropriate remedy is to direct respondent to schedule another hearing to take place within 30 days after the date of this decision. While the record before me reveals no basis for petitioner's remarks to the hearing officer, I will require respondent to appoint another hearing officer.


IT IS ORDERED that the hearing officer's decision is hereby annulled to the extent that it determined that petitioner's request for a hearing was dismissed with prejudice; and

IT IS FURTHER ORDERED that respondent shall schedule a hearing before another hearing officer in this matter to take place within 30 days after the date of this decision.

Topical Index

Parent Appeal
Preliminary MattersConduct of Impartial Hearing
ReliefRemand to IHO