02-043

       Petitioner, the Board of Education of the Springville-Griffith Institute Central School District, appeals from the decision of an impartial hearing officer modifying his prior decision ordering petitioner to provide or pay for compensatory education services during the 2001-02 school year. Petitioner contends that the hearing officer exceeded his authority by extending the time within which the compensatory education services were to be provided pursuant to his prior decision. The appeal must be sustained.

        Respondents' son, who was ten at the time of the May 2, 2001 hearing, was classified as autistic by petitioner’s Committee on Special Education (CSE). The child demonstrates severe cognitive developmental delays and his receptive and expressive language are very limited. His classification is not in dispute.

        The child has received a variety of pre-school and school based special education services. Although he has generally resided at his parents' home, the child was placed by his parents in an out-of-district group home in March 2000, at a time when he was attending a special education facility known as Autistic Services, Inc. in Tonawanda, New York. As a result of the child's change of residence, petitioner was no longer responsible for his education. However, on September 24, 2000, respondents decided that they would not return the child to his residential placement. They advised petitioner on September 25, 2000 that the child would be residing with them, and that petitioner would again have the responsibility for providing appropriate educational services for him.

        Thereafter, petitioner and respondents sought to locate an appropriate educational placement for the child, but had difficulty agreeing upon a placement. In the interim, the child remained at home, and he did not receive any services during the fall of 2000. On December 21, 2000, petitioner's CSE recommended that the child be placed in the Summit Educational Resources Facility (Summit). The child attended Summit from January 15 until June 6, 2001, when he was withdrawn from school by respondents. An educational consultant provided home instruction to the child for the remainder of the 2000-01 school year. Respondents subsequently sought an impartial hearing seeking compensatory educational services for both semesters of the 2000-01 school year.

        In a decision dated December 14, 2001, the impartial hearing officer found that petitioner had failed to provide a free appropriate public education (FAPE) to the child during the first semester of the 2000-01 school year. He further found that the child's individualized education program (IEP) for the remainder of the 2000-01 school year was deficient, and that the child's educational program at Summit during the second semester of that school year was inappropriate. Although he found that the child had been denied a FAPE during the second semester of the 2000-01 school year, the hearing officer also found that the child had derived meaningful benefit from the educational program provided to him by Summit. The hearing officer concluded that the child should be awarded compensatory education services for the first semester of the 2000-01 school year, but not for the second semester of that school year.

        The hearing officer's December 14, 2001 decision provided that the Board of Education must provide or pay for nine hours of individual occupational therapy, 15 hours of individual speech/language therapy, and 60 hours of individualized instruction from a person trained in Applied Behavioral Analysis (ABA). The impartial hearing officer directed that the hours of compensatory services be "consumed during the 2001-2002 school year and that any hours not utilized or consumed by the conclusion of the 2001-2002 school year shall completed be forfeited." Neither petitioner nor respondents appealed from the hearing officer's decision.

        By letter dated March 28, 2002, respondents' attorney informed the hearing officer that respondents had encountered difficulty obtaining the services of a qualified ABA therapist who could provide 60 hours of service by June 30, 2002. The attorney asked the hearing officer to extend the deadline for the compensatory ABA services through the summer of 2002. On April 1, 2002, petitioner's attorney objected to respondents' request, on the grounds that it was beyond the power of the hearing officer to reopen or reconsider his December 14, 2001 decision. He also questioned the factual basis for opposing counsel's assertion that the parents were having difficulty securing the services of a qualified provider of ABA and his implication that services might not be provided to the child.

        In a decision dated April 7, 2002, the hearing officer appeared to accept as factual the assertions made by the parents' attorney in his March 28, 2002 letter. He noted that both federal and state regulations provide that a hearing officer's decision is final, except that either party may appeal from such decision to the State Review Officer (34 C.F.R. § 300.510[a]; 8 NYCRR 200.5[i][4][ii]). He construed neither regulation as inhibiting him from altering his decision to remedy what he characterized as an inequity arising from post-decision facts that would otherwise nullify the relief he had granted in his prior decision. The hearing officer explained that his December 14 decision had included a time limit for the child's compensatory education services as a means of addressing petitioner's significant delay in providing services to the child in the fall of 2000. He added that had it occurred to him that there would be a delay in obtaining such services, he would have provided otherwise in that decision. The hearing officer extended the time limit for providing compensatory ABA services to the child until August 31, 2002.

        Petitioner asserts that the hearing officer's April 7, 2002 decision violates the finality provisions of federal and state statutes (20 U.S.C. § 1415 [i][1][A]; Education Law § 4404[1]) and their corresponding regulations to which the hearing officer referred in his decision. It seeks an order annulling the hearing officer's April 7, 2022 decision and re-imposing the time limit for the provision of ABA to the child set by the hearing officer's December 14, 2001 decision. Respondents assert that petitioner has not been harmed or prejudiced as a result of the extension of time granted by the hearing officer's April 7, 2002 decision, and that the hearing officer acted within his authority.

        The portion of the Individuals with Disabilities Education Act (IDEA) upon which petitioner relies reads as follows:

A decision made in a hearing conducted pursuant to subsection (f) or (k) shall be final, except that any party involved in such hearing may appeal such decision under the provisions of subsection (g) and paragraph (2) of this subsection. (20 U.S.C. § 1415 [i][1][A])

        When no appeal is taken from an impartial hearing officer's decision, such decision becomes the final administrative decision of the state under the IDEA (Antkowiak v. Ambach, 838 F. 2d 635 [2d Cir. 1988]). The finality provision is intended to assure that having gone through the hearing process, the parties receive a final decision, subject only to an appeal (In the Matter of the "A" Family, 602 P.2d 157 (MT 1979), cited with approval in Helms v. McDaniel, 657 F. 2d 291 [5th Cir. 1981], cert. denied 455 U.S. 946 [1982]). An impartial hearing officer may not reopen a proceeding for the purpose of reconsidering his prior decision (Application of the Bd.of Educ., Appeal No. 98-16).

        The hearing officer's April 7, 2002 decision did not simply correct an error in his prior decision. It changed a specific condition set forth in the decretal provision of the decision, based upon a representation by the parents' attorney that the specific condition could not be achieved. The Board of Education's attorney opposed the requested change on legal and factual grounds. Neither attorney's letter is proof of the facts implicit in their respective positions. Given the nature of the change made by the hearing officer's April 7, 2002 decision to his December 14, 2001 decision, I am constrained to find that the April decision violated the finality provisions of federal and state law. I must note that this disagreement about providing services pursuant to the hearing officer's original decision should have been resolved by the parties without resort to the due process procedures.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the hearing officer's April 7, 2002 decision is hereby annulled.