04-018

            Petitioners appeal from an impartial hearing officer's (IHO) decision which ordered that claims related to matters antecedent to the 2003-04 school year be dismissed as untimely raised and granted petitioners' application to withdraw their hearing request without prejudice only to tuition reimbursement and transportation claims pertaining to the 2003-04 school year.  The appeal must be sustained in part.

            Before reaching the merits of petitioners' appeal, I must address several procedural issues.  To begin with, respondent alleges infirmities pertaining to the timeliness and manner of service of the notice of intention to seek review.  Respondent argues that petitioners' notice of intention to seek review was not served within the time period prescribed by 8 NYCRR 279.2; that the notice of intention to seek review was not personally served as required by 8 NYCRR 279.2(a) and 8 NYCRR 275.8(a); and that the petition for review was served fewer than ten days after service of the notice of intention to seek review. 

            The purpose of a notice of intention to seek review is to ensure that the record is provided to the Office of State Review (Application of a Child with a Disability, Appeal No. 04-014; Application of a Child with a Disability, Appeal No. 01-055; Application of a Child with a Disability, Appeal No. 99-3), and done so in a timely manner.  The record before me contains an affidavit showing that petitioners had their notice of intention to seek review personally served on respondent on March 26, 2004.  Respondent transmitted the record in this matter to the Office of State Review on April 2, 2004.  I find that petitioners' minimal delay in serving the notice of intention to seek review had no effect on this proceeding (Application of a Child with a Disability, Appeal No. 02-009).  Respondent also contends that the appeal should be dismissed because petitioners did not serve their notice of intention to seek review more than ten days before they served a copy of the petition for review, as required by 8 NYCRR 279.2 (b).  As indicated, however, the purpose of serving a notice of intention to seek review is to alert the board of education of its duty to file the record of the hearing promptly with the Office of State Review (Application of the Bd. of Educ., Appeal No. 92-10).  Here, respondent promptly filed the record of the hearing.  Therefore, petitioners' failure to serve the notice of intention to seek review in the prescribed manner does not afford a basis for dismissing this appeal (Application of a Child with a Disability, Appeal No. 04-014; Application of a Child with a Disability, Appeal No. 00-094; Application of a Child with a Disability, Appeal No. 95-66; Application of a Child Suspected of Having a Disability, Appeal No. 93-45). Respondent also claims that the notice of intention to seek review was served improperly because it was served by a party to the proceeding in violation of 8 NYCRR 279.2(a).  The affidavit of service of the notice of intention to seek review indicates that a non-party made service. I find that the record shows the manner of service of the notice of intention to seek review to be proper. 

            Respondent also asserts that petitioners did not timely serve the petition for review.  The hearing officer's decision is dated February 17, 2004 and was mailed to petitioners on that date (IHO Decision p. 23).  Petitioners' affidavit of service states that the petition for review was personally served on respondent on March 26, 2004. Service of the petition for review occurred one day earlier than required and is therefore timely (see 8 NYCRR 279.2[b]).  Respondent also claims that the petition for review was served improperly because it was served by a party to the proceeding in violation of 8 NYCRR 279.2(a).  The affidavit of service of the petition for review attached to the petition for review indicates that a non-party made service.  I find the petition for review to be timely and properly served upon respondent.  I have considered respondent’s other arguments with regard to filing this appeal and find them to be without merit.

            Petitioners also raise a procedural matter that shall be addressed. Petitioners’ request that I consider documents attached to their petition that were not made part of the hearing record and are now offered for submission. The documents are: correspondence dated June 16, 2001 and July 11, 2001, relative to proposed grade retention of their daughter in respondent’s schools (Pet. Exhibits A, B); a prehearing letter from respondent’s counsel to petitioners, dated November 15, 2003,  confirming understanding of issues before the hearing officer (Pet. Exhibit C); correspondence dated January 15, 2004 and March 1, 2004 to the New York State Office of Vocational and Educational Services for Individuals with Disabilities (VESID) relative to petitioners' complaint against the hearing officer (Pet. Exhibits D, E); a letter from the hearing officer to petitioner and respondent, dated February 6, 2004, created during the time of the hearing (Pet. Exhibit F); a February 10, 2004 letter from petitioner to the hearing officer (Pet. Exhibit G); a February 13, 2004 reply from respondent to the hearing officer (Pet. Exhibit H); a letter from petitioner to the hearing officer dated February 16, 2004 (Pet. Exhibit I); a case information form given to petitioner to complete by the hearing officer (Pet. Exhibit J); and correspondence from three attorneys with respect to contacts with petitioners relative to representation at the impartial hearing and dated, respectively, February 23, 2004, February 23, 2004, and February 13, 2004 (Pet. Exhibits K, L, M).

            Respondent asserts a general affirmative defense opposing acceptance of all additional documents submitted with the petition for review (Ans. ¶ 81).

            Documentary evidence not presented at a hearing may be considered in an appeal from a hearing officer's decision if such evidence were unavailable at the time of the hearing or when such evidence is necessary to enable the State Review Officer (SRO) to render a decision (Application of a Child with a Disability, Appeal No. 04-014; Application of a Child with a Disability, Appeal No. 03-054; Application of the Bd. of Educ. of the Pawling Cent. Sch. Dist., Appeal No. 03-022; Application of a Child with a Disability, Appeal No. 02-098; Application of the Bd. of Educ. of the Hyde Park Cent. Sch. Dist., Appeal No. 02-024).  There is no assertion that Exhibits A and B were not available at the time of the hearing and I find that consideration of the letters is not necessary to enable me to render a decision. I therefore do not accept Exhibits A and B.  Exhibit C was available at the time of the hearing and not made part of the record; however, the substance of the document is referred to in the hearing officer’s decision (IHO Decision p. 8). Given that the hearing officer refers to the contents of the document in his decision, I will accept the document because I find it necessary for my review. Likewise, Exhibit D was available at the time of the hearing, not made part of the record, but it is referred to during the hearing and in the hearing officer's decision (Transcript p. 1352; IHO Decision p. 10). Given that the hearing officer refers to the document during the hearing and in his decision, I will accept the document because I find it necessary for my review.  Exhibit E is a letter written by petitioner after conclusion of the hearing containing information that was or could have been submitted at the hearing. I will not accept Exhibit E as I find consideration of the letter is not necessary to enable me to render a decision.  Exhibit F is a letter from the hearing officer to the student's mother created during the time of the hearing, not made part of the hearing record, and referenced in the hearing officer’s decision (IHO Decision p. 10). In the interest of creating an adequate record, Exhibit F should have been made part of the hearing record as a hearing officer exhibit if not introduced by a party.  I will accept Exhibit F because I find consideration of the letter is necessary to enable me to render a decision.  I will accept Exhibit G because its contents are referenced in the hearing officer's decision (IHO Decision p. 10) and I find that consideration of the letter is necessary to enable me to render a decision.  For the same reasons, I will accept Exhibit H.  I will not accept Exhibit I because it is a letter sent to the hearing officer by petitioners, a day before the hearing decision was issued, after the close of testimony, and not referenced in the hearing officer's decision.  I will accept Exhibit J because, although the hearing officer references it in his decision (IHO Decision pp. 6, 12) and appears to draw a negative inference from his conclusion that petitioners failed to complete the form, it was not made part of the record, and I find consideration of Exhibit J is necessary to enable me to render a decision.  Exhibits K, L, and M are documents that are relevant to a central issue on appeal, and respondent does not contest the reliability of the documents or accuracy of the assertions contained therein.  I find consideration of Exhibits K, L, and M is necessary to enable me to render a decision and will consider them as part of my review. 

            Petitioners' daughter was 11 years old and repeating the fifth grade at the Spring Hill Waldorf School (Spring Hill) in Saratoga Springs, New York at the commencement of the hearing in November 2003.  The Commissioner of Education has not approved this private school as one with which school districts may contract  to instruct students with disabilities.  The student was unilaterally enrolled by her parents in Spring Hill at the beginning of the 2001-02 school year where she began the fourth grade (Transcript p. 52).  Previous to that time she was attending school in respondent's school district.  Respondent's Committee on Special Education (CSE) determined that petitioners' daughter was a student with a disability in March 2002 and classified her as learning disabled (District Exhibit 38A; Transcript pp. 733-34).  The student's classification is not in dispute.  At the time of the hearing, respondent was contracting for the provision of resource room services to petitioners' daughter at Spring Hill (District Exhibit 53; Transcript pp. 183-84, 388-89, 616).  In addition, petitioners assert that Spring Hill provides their daughter with other special education services (Transcript pp. 625-26).    

           Petitioners' daughter has deficits in sequential processing and short-term and working memory which result in difficulty with spelling, written language, mathematics, receptive language, and the need to have information presented to her in small components or "chunks" (District Exhibit 54; Parent Exhibit 14).  The student also has difficulty completing her work, is easily distracted and frequently off task, requires redirection, and demonstrates significant attentional difficulties which interfere with her ability to receive instruction (District Exhibit 54).  The record includes an evaluation by a school psychologist, from June 2000, which indicates that petitioners' daughter's cognitive ability is in the average range (District Exhibit 3). 

           The district's CSE subcommittee met on May 12, 2003, for the student's annual review for the 2003-04 school year (District Exhibits 38[c], 54; Transcript p. 825).  The subcommittee agreed that the student should be provided with an hour a day of resource room services (District Exhibit 38[c]; Transcript p. 833).  If the student were to return to a district school, it recommended she also have a 1:1 aide (District Exhibit 38[c]; Transcript pp. 832-35).  The subcommittee recommended that petitioners' daughter receive extended school year services, beginning in the summer of 2003 (District Exhibits 45, 48; Transcript pp. 833-34), and discussed her possible retention in the fifth grade (District Exhibit 38[c]; Transcript p. 835).  Because of uncertainty regarding whether the student would return to the district, the subcommittee did not make a final recommendation regarding the student's individualized education program (IEP) at that meeting (District Exhibit 38[c]; Transcript pp. 831-32, 840-43, 844).  It did not review and develop all aspects of her IEP (see Transcript pp. 840-43, 848, 872).  Subsequent to the meeting, the CSE subcommittee chairperson completed the IEP and sent a copy of it to petitioners (District Exhibits 46, 47, 54; Transcript pp. 840-46, 848, 872-73).  Respondent approved the student's IEP on July 1, 2003 with a program start date of July 2003 (District Exhibits 49, 54; Transcript pp. 840-48, 914-15).  The final IEP increased the student’s resource room services to two hours a day and respondent agreed to provide the student's resource room services at whatever school petitioners' daughter attended (District Exhibits 47, 49, 54; Transcript p. 902). 

           Petitioners' daughter currently attends Spring Hill for the 2003-04 school year where she is repeating the fifth grade (District Exhibits 50, 52; Transcript pp. 972).  Subsequent to her return to Spring Hill for the 2003-04 school year, respondent arranged for the student to receive resource room services there (District Exhibits 52, 53; Transcript pp. 928-35).  Respondent is not providing the student with transportation to and from  Spring Hill (Transcript pp. 1333-34).

            On October 28, 2003 respondent received petitioners' request for an impartial hearing dated October 24, 2003 (Transcript pp. 618, 638; see Pet. Exhibit C; IHO Exhibit B).  On October 29, 2003 a hearing officer was appointed and petitioners were advised by letter dated October 31, 2003 (IHO Exhibits A, B).  The October 31, 2003 letter also advised petitioners of their right to mediation (see 8 NYCRR 200.5[h]; 34 C.F.R § 300.506).  Eight days later, the hearing officer sent a letter scheduling hearing dates for November 14 and 18, 2003 (IHO Exhibit C).  Neither date proposed was within 14 days from the date of appointment of the hearing officer (see 8 NYCRR 200.5[i][3][i][b]). By letter dated November 11, 2003, respondent requested that the hearing be adjourned stating it "was unable to proceed" and requested that a prehearing conference be held and that new hearing dates be established (IHO Exhibit D).  The hearing officer granted respondent's request for an adjournment of the first hearing date, after concluding "good cause" existed because it had just retained counsel "shortly before" and was not able to comply with the disclosure of evidence requirements of 8 NYCRR 200.5(i)(3)(xi) and proceed on November 14, 2003 (Transcript p. 5).   By letter dated November 12, 2003, the hearing officer rescheduled the hearing to begin on November 18, 2003, indicating that after speaking to both parties "good cause" existed to cancel the November 14, 2003 hearing date (IHO Exhibit E).  On November 17, 2003, the hearing officer denied petitioners' request that the November 18, 2003 hearing date be postponed.  Petitioners had asserted that they were unable to comply with the disclosure of evidence requirements of 8 NYCRR 200.5(i)(3)(xi) and proceed on November 18, 2003 (Transcript p. 6).  The hearing officer cited the requirement to complete a hearing and render a decision within 45 days as a factor in making this determination (Transcript pp. 6-7).  Respondent had no objection to petitioners’ request and also unsuccessfully asked that the November 18, 2003 date be cancelled (Transcript pp. 7, 17).  The hearing officer determined that respondent could subsequently submit evidence and that disclosure of evidence by petitioners could take place at a later date prior to the presentation of their case (Transcript pp. 8-9, 17). 

            The hearing commenced on November 18, 2003.  At the hearing the student's mother requested an adjournment to allow her time to obtain representation by an attorney (Transcript p. 18).  She stated that her personal attorney was unable to represent her because he also represented the district and therefore had a conflict of interest (Transcript pp. 19-20).  She also indicated that she had been diligently attempting to secure other representation and she had contacted 17 attorneys, Albany Law School, and the Warren County Bar Association without success (Transcript pp. 19-20).  During a conference call on November 17, 2003, the student's mother had advised both respondent's counsel and the hearing officer of her interest in having representation, her inability to have counsel present and her desire to be granted an adjournment (Transcript p. 19).  On November 18, 2003, the hearing officer denied petitioners' request for an adjournment (Transcript pp. 21-22, 161, see Transcript p. 41) stating that petitioners would be able to continue their efforts to obtain representation and that any attorney they retained would have access to a copy of the transcript of the first day's proceedings in advance of the second day of the hearing scheduled for December 11, 2003 and could conduct cross-examination at that time (Transcript pp. 21-22, 39).

            Also at the beginning of the November 18, 2003 hearing, the student's mother stated that she had requested mediation, was "willing to try that" and "not go forward" (Transcript p. 39).  She also indicated that she did not think it would be “fair” to respondent’s witness if the witness testified without the benefit of seeing psychological reports the mother intended to introduce at a later date but was not able to introduce that day, and because copies of the district’s documents that were disclosed were "illegible" (Transcript p. 37).  The hearing officer responded by saying "this is an adversarial proceeding…you are not interested in looking after their welfare…otherwise you can go to mediation" (Transcript p 38).  The parent responded, "actually we requested mediation" (Transcript p. 39) to which the hearing officer stated that mediation could take place but "it cannot stop this proceeding from going forward…it cannot stop this proceeding" (Transcript p. 39).  In response, the parent suggested adjournment of the impartial hearing pending mediation attempts and asked the district to engage in mediation ("May I ask if the district is willing to attempt mediation and [be] willing to go forward if an agreement is not met?" (Transcript p. 39).  The hearing officer went off the record and mediation was not brought up again at the hearing until the January 28, 2004 hearing date when respondent revealed that it had never acted on petitioners' request for mediation and that it had declined to mediate the matter (Transcript pp. 1170-77).  Direct examination was conducted of respondent's school psychologist on November 18, 2003 (Transcript pp. 63-140) and subsequent hearing dates were scheduled for December 11, 2003 and January 5, 2004 (Transcript p. 39).  The expiration date of the 45-day timeline was December 12, 2003.            

            On December 11, 2003, the second day of the hearing convened and the student's mother explained that she had spoken with the hearing officer earlier in the week and that she advised him "well in advance of today's date" that she had located three attorneys who would be able to assist her but that none of them were available for the December 11, 2003 hearing date (Transcript pp. 169, 172-3).  During this earlier conversation she apparently advised the hearing officer that she could appear with an attorney on dates before or after the December 11, 2003 date (Pet. Exhibit D, p. 2; Parent Exhibit 1; Transcript p. 639).  On the December 11, 2003 hearing date, she offered to provide the hearing officer with the names and telephone numbers of those attorneys and specifically asked that a date be set so that one of these attorneys could represent petitioners at the hearing (Transcript pp. 169, 175).  The student's mother also advised that the attorneys, who were agreeable to representing petitioners if the hearing were rescheduled, had advised her that if the hearing were to continue on that day, they would no longer be willing to represent her at the hearing (Transcript pp. 169, 177-78).  Despite the objection of the student's mother, the hearing officer proceeded with the hearing on December 11, 2003 and heard the direct examination of the principal from the school that petitioners' daughter had attended prior to enrolling at Spring Hill (Transcript pp. 187, 193-94). 

            The hearing continued on December 30, 2003.  Before testimony began, petitioners requested that the hearing officer recuse himself.  The hearing officer reserved decision on the motion and heard additional testimony from respondent’s CSE chairperson.  At the beginning of the next day of testimony, January 16, 2004, respondent made an oral motion that the hearing officer dismiss the proceedings.  Respondent's motion to dismiss asserted that petitioners had "failed to state a claim;" that based on information available on Spring Hill's website, that school was not providing petitioners' daughter with any special education services; and that many of petitioners' claims were "untimely" (see generally Transcript pp. 613-20).  In response to the hearing officer's questions, petitioners asserted that Spring Hill was providing the student with special education services (Transcript pp. 625-26; see also Transcript p. 390).  The hearing officer  considered respondent's motions to dismiss as one for summary judgment (Transcript pp. 613, 620-21).  He offered petitioners an opportunity to respond, either verbally (by January 27, 2004) or in writing (by January 29, 2004) (Transcript pp. 642- 43). 

            During the January 16, 2004 hearing, the student's mother restated their objection to proceeding without an attorney (Transcript p. 620) and made reference to early December 2003 conversations with the hearing officer regarding their ability to secure counsel (Transcript pp. 639-40).  The student's mother advised the hearing officer that they were "not comfortable going forward without counsel and haven't been and that's been our position" and that she opposed respondent's motion (Transcript p. 622).  She indicated that petitioners wished to withdraw their request for a hearing "without prejudice."  (Transcript pp. 622, 636).  The hearing officer denied the request (Transcript p. 644).  The hearing continued on January 16, 2004 with testimony from the CSE subcommittee chairperson.

            The hearing reconvened on January 28, 2004.  The student's mother again asserted her desire to withdraw the hearing request without prejudice (Transcript pp. 1178-79), and indicated that she had in fact withdrawn the request (Transcript pp. 1185, 1186, 1188, 1199, 1255).  She argued that as a result, the hearing officer was required to terminate the hearing (Transcript p. 1181), and that the hearing was therefore over (Transcript p. 1182).  In response, the hearing officer reconsidered his January 16, 2004 denial of their motion to withdraw their request for a hearing (seeTranscript pp. 1190, 1191, 1192, 1193, 1256) and asked that petitioners provide him with a written submission with respect to that question by February 5, 2004 (Pet. Ex. F; Transcript p. 1344).  He also extended petitioners' time to respond to the summary judgment motion until that date (Transcript p. 1344)

            The hearing was scheduled to reconvene on February 11, 2004 (Pet. Exhibit F).  Petitioners did not appear on the rescheduled hearing date, reportedly because of illness (Transcript p. 1350).  They did, however, submit a response in opposition to respondent's summary judgment motion and in furtherance of their application to the hearing officer to withdraw their request for a hearing "without prejudice" (Transcript pp. 1354, 1359; Pet. Exhibit G).  The hearing officer indicated that he would consider petitioners' response and took both matters under advisement (Transcript p. 1359).

            The hearing officer issued a decision on February 17, 2004.  He granted summary judgment to respondent with respect to all of petitioners' claims except those relating to tuition reimbursement for the 2003-04 school year and for the costs of transportation for that period.  He granted petitioners' application to withdraw their request for a hearing without prejudice only as it related to their claims for the 2003-04 school year regarding transportation and tuition reimbursement.

            Petitioners appeal from the hearing officer's decision and set forth the same issues that they raised at the hearing.  They also assert that the hearing officer's decision should be reversed, arguing among other things that the hearing officer should have terminated the hearing when they advised him that they had withdrawn their request for a hearing.  They argue that he did not provide them with a sufficient opportunity to obtain counsel.  Respondent answers the petition but does not cross-appeal from any part of the hearing officer's decision.

            Respondent did not cross-appeal from that part of the hearing officer's decision that granted petitioners' application to withdraw their hearing request without prejudice with respect to petitioners' claims for transportation and tuition reimbursement for the 2003-04 school year.  An impartial hearing officer's decision is final and binding upon the parties unless appealed to the SRO (34 CFR § 300.510[a]; 8 NYCRR 200.5[i][4][ii]).  Having failed to appeal from the hearing officer's decision, respondent is bound by that decision and I do not reach the issue of the propriety of that order (Application of the Bd. of Educ. of the City Sch. Dist. of the City of New York, Appeal No. 03-110).

            With respect to the manner in which the hearing was conducted, I first consider whether petitioners' due process rights were violated by the hearing officer's determination to proceed with the hearing despite petitioners' requests for an adjournment on November 18, 2003 and December 11, 2003 for the purpose of securing and appearing with counsel.  As related above, petitioner advised the hearing officer prior to the beginning of the hearing that her personal attorney could not represent petitioners because of a conflict of interest and that she was diligently seeking representation from another attorney (Transcript p. 19).  She again advised the hearing officer on the November 18, 2003 hearing date and indicated that she did not want to proceed without counsel (Transcript pp. 18, 20).  Prior to, and on, the December 11, 2003 hearing date she advised the hearing officer that she secured representation, and that she could proceed with the hearing before or after, but not on, the December 11, 2003 hearing date (Transcript p. 169).  The hearing officer denied her request (Transcript pp. 21-22, 41, 161).

            The Individuals with Disabilities Education Act (IDEA) requires certain procedures to be in place to safeguard the right of children with disabilities to a FAPE (see 20 U.S.C. § 1415).  A parent or school district may initiate a hearing to present complaints regarding the identification, evaluation, or educational placement of the child, or the provision of a FAPE to such child (see34 C.F.R. § 300.507; 8 NYCRR 200.5[i][1]).  Hearing rights include the entitlement to be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities, and to present evidence and confront, cross-examine, and compel the attendance of witnesses (see 34 C.F.R. § 300.509[a][1], [2]; see also, 8 NYCRR 200.5[i][3][vii], [xi]).  A hearing officer is appointed to preside at a hearing and provide all parties an opportunity to present evidence and testimony (8 NYCRR 200.5[i][3][vi]).  A hearing officer must be fair and impartial and must avoid giving even the appearance of impropriety or prejudice (Application of a Child with a Disability, Appeal No. 03-071; Application of a Child with a Disability, Appeal No. 02-118; Application of a Child with a Disability, Appeal No. 01-046).  The hearing procedures must be consistent with the requirements of due process (34 C.F.R. § 300.510 [b][2][ii]). A hearing officer may not accept appointment unless he or she is available to initiate the hearing within the first 14 days of being contacted by the school district (8 NYCRR 200.5[i][3][i][b]).  Also, the hearing officer must see that the hearing is conducted and completed, and that a decision is issued not later than 45 days after a request for a hearing is received by the board of education (34 C.F.R. § 300.511[a]; 8 NYCRR 200.5[i][4]), unless the hearing officer receives and grants a request from one of the parties for an "extension" of the regulatory time frame (34 C.F.R. § 300.511[c]; 8 NYCRR 200.5[i][4][i]).  A hearing officer is therefore required to make, on a case-by-case basis, reasonable decisions as to the scheduling of hearing dates that comport with the policies of affording due process and the timely resolution of disagreements about appropriate services for a child with a disability.  A hearing officer therefore may have to decide whether to grant a request for an adjournment of a hearing date and rescheduling within the 45 day time frame, or decide whether to grant an “extension” beyond the 45 day time frame that takes into consideration the interests of due process and timely completion of hearings.  In granting an adjournment, a hearing officer should consider the requirement to complete the hearing and issue a decision within mandated timelines (34 C.F.R. 300.511[a]; 8 NYCRR 200.5[i][4]). In appropriate circumstances, short adjournment periods may be granted without compromising mandated timelines.  However, a hearing officer may decline to grant unreasonable or extensive adjournments (see Application of a Child with a Disability, Appeal No. 00-015; Application of a Child with a Disability, Appeal No. 96-43; Application of a Child with a Disability, Appeal No. 95-73; Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-5). 

            In the case before me, there is no persuasive evidence that petitioners were using the requests for an adjournment as a way to impermissibly delay the hearing (Transcript p. 639). Rather, the evidence establishes that petitioners wanted legal representation and did not feel comfortable proceeding without an attorney.  When a parent makes a good faith request for an adjournment because of the need to secure new counsel, the parent is making diligent efforts in locating counsel and is not seeking an indefinite adjournment (Transcript p. 175), a hearing officer should afford the parent a reasonable opportunity to secure representation (Application of a Child with a Disability, Appeal No. 02-118); Application of a Child with a Disability, Appeal No. 93-2).  This is particularly true in this case where there was no indication that the student disrupted the education of other students, or that respondent’s witnesses scheduled to testify on December 11, 2003 could not testify on direct by telephone after her planned relocation (as was planned for her cross-examination), or that respondent would be otherwise prejudiced by a short adjournment.  Here, the parent informed the hearing officer that she had secured counsel and was able to proceed on a day before the second hearing date scheduled for December 11, 2003 (Transcript p. 639).  She was therefore able to proceed before the December 12, 2003 expiration of the 45-day time frame.  She was also able to proceed seven days after the December 11, 2003 date if granted an extension (Transcript pp. 639, 642).  The record suggests that the parent was offered only three hearing dates within the 45 day time frame (November 14 and 18, 2003 and December 11, 2003) because of the apparent limited availability of respondent, repondent's counsel and the hearing officer (Transcript pp. 17, 32, 172).  In IHO Exhibit H, the hearing officer quotes respondent’s counsel in a letter supporting the hearing officer in opposition to petitioners' recusal motion as stating "[t]he scheduling of hearing dates has been difficult because of the IHO's schedule, my schedule and the holidays."  Under the circumstances presented in this case, I find that the hearing officer's denial of petitioners' request for an adjournment of the November 18, 2003 and December 11, 2003 hearing dates combined, was unreasonable and a denial of due process that requires annulment of that portion of the hearing officer’s order which dismissed her claims (Application of a Child with a Disability, Appeal No. 00-015; Application of a Child with a Disability, Appeal No. 93-2). 

            In addition, I note it would be preferable that hearing officers accept appointments to conduct hearings only when their schedule will allow sufficient flexibility, and accommodate sufficient hearing dates within the 45 day time frame. It would also be preferable, as a general rule, that parents who wish to proceed to due process with legal representation secure such representation, if possible, before or shortly after making a hearing request, but certainly prior to the scheduling of hearing dates. In addition, I encourage school districts and their counsel to be prepared for completion of a hearing within 45 days.

            I now turn to the issue of the hearing officer's ruling granting summary judgment to the district.  The Second Circuit addressed the issue of a hearing officer's authority to grant a summary judgment motion in an IDEA context in J.D. v. Pawlet Sch. Dist., 224 F.3d 60 (2d Cir. 2000).  After citing numerous examples wherein hearing officers granted summary judgment motions in IDEA cases in other jurisdictions, the Second Circuit stated that "while not dispositive, we find it persuasive that summary disposition procedures are frequently used to decide IDEA claims that involve no disputed issues of fact" (id. at 69).  The Court went on to state that in an IDEA hearing, "where the parties have had a meaningful opportunity to present evidence and the non-moving party is unable to identify any genuine issue of material fact, the use of a summary judgment procedure is entirely proper" (id. at 70).  Applying this standard, I find that in the instant case, since there were material facts still in dispute (e.g. procedural and substantive adequacy of the 2003-04 IEP and appropriateness of the private school placement) and the parents did not have a meaningful opportunity to present evidence, that the hearing officer erred in granting the district's motion for summary judgment (see, e.g., Dist City 1 and Dist City 2 Pub. Sch., 24 IDELR 1081 [Min. Aug. 6, 1996]).

            I also find that petitioners did provide respondent with adequate notice of the claims raised in the instant case.  Petitioners submitted an impartial hearing request dated October 24, 2003 (Transcript pp. 618, 638; Pet. Exhibit C).  An impartial hearing request made by a parent must comply with the notice requirements in 8 NYCRR 200.5(i)(1)(i) and provide a description of the nature of the problem, including facts, relating to the refused initiation or change in a student's services.  The regulation also requires that the parent identify a proposed resolution, however, failure to provide the required information may not be used by the district to delay or deny a parent's right to a due process hearing (8 NYCRR 200.5[i][1][i]][f]).  A copy of the hearing request was not made part of the record despite both the hearing officer and respondent questioning the sufficiency of the notice contained in the document.

             As to the issues in dispute, at the hearing the student's mother communicated, inter alia, the following claims:  (1) untimely identification of their daughter as a student with a disability; (2) development of IEPs at improperly composed CSE meetings; (3) failure to provide her daughter with a free appropriate public education (FAPE); (4) entitlement to tuition reimbursement for the 2001-02, 2002-03 and 2003-04 school years; (5) failure to provide appropriate special educational services at Spring Hill; and (6) the cost of transportation to and from Spring Hill during the 2003-04 school year (Transcript pp. 46-51, 55, 61-62, 179-83, 460-63).  Three days prior to the first day of the hearing on November 18, 2003, respondent confirmed in a letter to petitioners (Pet. Exhibit C) that a prehearing telephone conversation took place between petitioners and respondent’s counsel regarding petitioners’ hearing issues.  In this November 15, 2003 letter, respondent's counsel confirmed that petitioners were claiming, inter alia, that respondent failed to both identify their child as a student with a disability and provide a FAPE; that an educational evaluation should be conducted; and that compensatory education should be provided.  In the letter, respondent's counsel referenced discussion of petitioners' October 24, 2003 hearing request and identified reimbursement and tuition as “overarching” issues for the district (id.).

            On November 18, 2003 in her opening statement, the student’s mother alleged a continual denial of FAPE and a failure to refer the child for evaluation as to eligibility for special education services during the first, second, and third grades (Transcript p. 47) despite evidence of a learning disability. Throughout her opening statement the mother gave factual details in support of her claims (e.g. inability of student to copy material from a chalk board, inability of student to pass fourth grade standardized test, and inability to retain information and complete work in a timely manner) (Transcript pp. 47-52). She also alleged that the district failed to conduct testing recommended by its own staff during the student’s second grade year (Transcript pp. 48-49).  Essentially the mother outlined a complaint suggesting that the district's response to the child's needs was to simply recommend for each of the first, second, and third grade years that the child repeat the grades and not be referred to the CSE for an evaluation.  Also in her opening remarks, the student’s mother stated that petitioners removed their daughter from public school because her daughter's needs were not met and enrolled her at Spring Hill (Transcript p. 52).  She further stated that the private school enrollment took place after putting the district on notice by verbal and written communications with the district superintendent (Transcript p. 52) and that her daughter had benefited educationally from the Spring Hill placement (Transcript p. 53). As for a proposed solution to the dispute, petitioners indicated they sought transportation and tuition reimbursement, and possible return to the district school if her daughter were provided with an aide and appropriate grade placement (Transcript pp. 56-57).  The mother indicated that she had repeatedly requested mediation services from the district to resolve disagreements arising during the summer 2003 but received no response (Transcript p. 57).  Based upon my review of the record, petitioners provided the district with adequate notice of their claim and sufficiently identified the "nature" of the dispute, related facts, and proposed solutions.  Both the hearing officer's determination and respondent's claim to the contrary are erroneous.  I further note that the remedy for failure to adequately comply with the requirements of 34 C.F.R. 300.507(c) and 8 NYCRR 200.5(i)(1)(i) is found in 34 C.F.R. 300.513(c)(4)(iv).

           The hearing officer also erred when, as discussed above, he stated that the hearing could not stop and had to go forward even though petitioners requested mediation and the mother suggested that the hearing be held in abeyance pending mediation efforts (Transcript p. 39).  The prescription that mediation not be used to deny or delay due process is a provision protecting a "parent's right to due process"  (see 8 NYCRR 200.5[h][1][ii]). Certainly it is within a parent's prerogative to request that due process proceedings be held in abeyance for a reasonable time while mediation goes forward. As to respondent's declining mediation I note that, in both state and federal regulations, districts are implicitly encouraged to explain the benefits of mediation to parents and to encourage parents to use the process (34 C.F.R. § 300.506[d]; 8 NYCRR 200.5[h][2]).  The U.S. Department of Education has directed that "mediation is an important alternative system for resolution of disputes….[P]ublic agencies are strongly encouraged to offer mediation or other alternative systems of dispute resolution prior to the filing of a request for a due process hearing, and whenever a dispute arises" (Mediation, 64 Fed. Reg. at 12611-12 [Mar. 12, 1999]; see also Letter to Chief State School Officers, 33 IDELR 247 [OSEP 2000]). The New York State Education Department also encourages mediation and in its July 2001 Guidance Document states "since July 1995, school districts have been required by New York State Education Law to make mediation available to parents in order to improve communication and cooperation and resolve matters related to special education programs and services….[T]he use of mediation is strongly encouraged as a means to resolve disagreements between parents and the school district [CPSE] or [CSE]."  In addition, mediation sessions, if they are to take place, must be "scheduled in a timely manner" (8 NYCRR 200.5[h][1][iv]; 34 C.F.R. 300.506[b][4]). 

             In view of the foregoing, I will annul the hearing officer's determination that all issues presented in the instant case, other than the issues of tuition reimbursement for the 2003-04 school year and cost of transportation for the 2003-04 school year, be dismissed.  In addition, given the unusual circumstances of this case, I will exercise my discretion and shall grant petitioners' application to withdraw her hearing request on all issues, without prejudice.

            I have considered petitioners' remaining contentions and find them to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer's decision is hereby annulled to the extent that it dismissed issues raised by petitioners other than those relating to transportation claims and tuition reimbursement for the 2003-04 school year; and,

IT IS FURTHER ORDERED, unless the parties otherwise agree, that respondent shall convene a CSE meeting within 30 days of the date of this decision that comports with the requirements of 8 NYCRR 200.4 to review the special education needs of petitioners' daughter and the appropriateness of the services offered by respondent; and,

IT IS FURTHER ORDERED that petitioners' request to withdraw their application for a due process hearing on all issues raised herein is granted without prejudice.