00-059

       Petitioner appeals from the interim order of an impartial hearing officer who denied her motion to render a decision based upon his review of the transcript and record of the hearing conducted by another impartial hearing officer whom he was appointed to replace. The first hearing officer had completed the hearing, but failed to render a decision. The appeal must be dismissed as premature.

        Petitioner’s son has reportedly been classified as a child with a disability by respondent’s Committee on Special Education (CSE). The CSE had reportedly prepared an individualized education program (IEP) for the student for the 1998-99 school year. Petitioner chose to enroll her son in the LaSalle Military Academy (LaSalle) for the 1998-99 school year. She asked respondent to provide her son’s IEP services at LaSalle. Respondent declined to do so, and asserted it was not obligated to provide those services at any location other than in its own schools (Petition paragraphs 5-7).

        On March 18, 1999, petitioner asked for an impartial hearing to resolve this dispute. Respondent appointed Epifanio Castillo, Jr. to serve as the impartial hearing officer. The hearing commenced before Mr. Castillo on April 20, 1999, and it concluded on May 19, 1999 (Petition paragraphs 8-10). The parties submitted written statements on or about May 26, 1999. The hearing officer failed to issue a written decision, or to respond to most of the parties’ efforts to communicate with him (Petition paragraph 11; Answer paragraph 10).

        On September 29, 1999, respondent submitted a written complaint about Mr. Castillo to the State Education Department, pursuant to 8 NYCRR 200.21 (Exhibit 1 to Answer). By letter dated March 13, 2000, the Department’s Manager for Special Education Policy and Quality Assurance in the Office of Vocational and Educational Services for Individuals with Disabilities advised respondent’s counsel that Mr. Castillo had been ordered to render a decision in the instant matter by March 17, 2000. The letter also indicated that if he did not do so, "the school district may proceed with appointing a new hearing officer unless the hearing request is withdrawn" (Exhibit 2 to Answer).

        Mr. Castillo did not issue a decision by March 17, 2000, and petitioner did not withdraw her request for an impartial hearing. On May 23, 2000, respondent appointed Dr. Martin Cheikin to replace Mr. Castillo as the hearing officer in this proceeding (Petition paragraph 14; Answer paragraph 15). When the parties’ attorneys appeared before Dr. Cheikin on June 5, 2000, petitioner’s attorney asked him to review the transcript and record of the hearing conducted by Mr. Castillo on April 20 and May 19, 1999, and to render a decision on that evidence (Transcript pp. 3-4). Respondent’s attorney opposed petitioner’s request on the grounds that due process and the issues to be presented required the hearing officer to observe the testimony of the witnesses, and determine their credibility and the weight to be given to their testimony. He also asserted that the procedure that petitioner’s attorney had requested was inconsistent with the provisions of 8 NYCRR 200. Petitioner’s attorney argued that petitioner already had been denied her right to a prompt decision, and that respondent had had a full opportunity to present and cross-examine witnesses in the first hearing. She also argued that it would be unfair to require petitioner to bear the expense of having the witnesses repeat their testimony for the new hearing officer’s benefit.

        The hearing officer orally denied petitioner’s application on the record, indicating that his decision would be appealed to the State Education Department (Transcript pp. 10-11). He also indicated that no further action would be taken until the appeal was decided. In a written decision dated June 28, 2000, the hearing officer stated that he might have accepted the transcripts of the prior days of hearing, if the parties had agreed, with the proviso that he could recall the witnesses to testify before him. He also indicated that the State Education Department could have accepted the transcripts for review by the State Review Officer, despite the fact that there was no hearing officer’s decision to review (cf., § 4404[2] of the New York State Education Law). The hearing officer also indicated that if his decision to deny petitioner’s request was upheld by the State Review Officer it would be "tantamount to the parent’s initial request for the Impartial Hearing to be withdrawn", and that if his decision were reversed "then a newly appointed Impartial Hearing Officer will have the guidance required to take the next appropriate step" (Exhibit 6 to Answer).

        Petitioner seeks an order directing the impartial hearing officer to render a decision upon the record made before Mr. Castillo. She asserts that requiring her to participate in a de novohearing regarding her son’s needs during the 1998-99 school year would deny her and her son due process. She contends that it is virtually impossible for her to present her case at this point because her son no longer attends LaSalle. Respondent argues that this matter should be decided by the Commissioner of Education rather than the State Review Officer because it involves the procedure prescribed by the Commissioner’s regulations for conducting a hearing and the State Education Department’s response to the complaint respondent filed. Respondent also contends that a new hearing is required because an impartial hearing officer can resolve issues regarding the credibility of witnesses only by actually observing the witnesses.

        I find that respondent’s argument that this dispute must be resolved by the Commissioner of Education is without merit. This is an appeal from an impartial hearing officer’s determination. The fact that it involves the Commissioner’s regulations does not afford a basis for concluding that only the Commissioner may resolve this matter. The Commissioner does not review the actions of employees of the State Education Department in appeals pursuant to § 310 of the Education Law (Matter of Bd. of Ed. of the City School Dist. of City of Rome v. Ambach, 118 A.D. 2d 932 [Third Dept., 1986]), nor does the State Review Officer (8 NYCRR 279.1[c][2]). Nevertheless, I am precluded from reviewing the hearing officer’s determination at this time.

Section 279.8(c) of the Regulations of the Commissioner of Education provides:

Interim Determinations. Appeals from an impartial hearing officer’s ruling, decision or refusal to decide an issue prior to or during a hearing shall not be permitted, with the exception of a pendency determination made pursuant to subdivision 4 of section 4404 of the Education Law. However, in an appeal to the State review officer from a final determination of an impartial hearing officer, a party may seek review of any interim ruling, decision or refusal to decide an issue.

        Because the hearing officer’s ruling was made "prior to or during a hearing" and does not involve a pendency determination, an appeal is not permitted. This appeal therefore must be dismissed as premature (Application of a Child with a Disability, Appeal No. 99-52). The parties and the impartial hearing officer cannot overcome this barrier for review of the interim order by agreeing to have petitioner appeal from the hearing officer’s ruling to the State Review Officer. Petitioner may obtain review of the impartial hearing officer’s decision to conduct a hearing de novo when the other issues in the proceeding have been finally determined.

THE APPEAL IS DISMISSED.