04-087

              Petitioner, the Board of Education of the Springville-Griffith Institute Central School District, appeals from the July 2004 decision of an impartial hearing officer which denied its motion that he recuse himself and denied its motion to dismiss respondent's due process hearing.  Petitioner also appeals from the September 2004 decision of the impartial hearing officer which found that it did not provide a free appropriate public education (FAPE) to the student for the 2003-04 school year, and awarded the student individual tutoring services in mathematics.  Further, petitioner appeals from the impartial hearing officer's decision to retain jurisdiction over disputes with respect to his order that petitioner obtain an independent evaluation of the student.  The appeal must be sustained in part.

            Petitioner’s daughter has never been determined eligible for services under the IDEA or § 504.  Petitioner’s underlying dispute with respondent Board of Education of the Oceanside Union Free School District (district) is that petitioner believes his daughter has not been fully evaluated to determine whether she is eligible for special education programs and services and that he has not been afforded a due process hearing to review his complaint.

            Petitioner's daughter attended regular education classes in respondent's public schools and did well academically until the ninth grade 2002-03 school year (Tr. p. 373).   In her ninth grade year the student developed serious attendance problems and began to fail classes (Tr. pp. 374-375).

            Petitioner and student support personnel from the district were in contact on several occasions during the fall of 2003, the student's 10th grade year (Parent Exs. MM, PP; Tr. p. 248). The student's performance, however, did not improve (Parent Ex. OO). In addition, the parent discovered that the student was involved with drugs (Tr. p. 416).  In February 2004 petitioner unilaterally enrolled his daughter in a residential facility for students with substance abuse problems (Tr. pp. 451-55).  The Eastern Suffolk Board of Cooperative Educational Services (BOCES) provides educational programming at the facility.

           By letter dated March 2, 2004 petitioner referred his daughter to the "Section 504 Team" in respondent's Oceanside High School, seeking a determination that the student's drug involvement constituted a disability requiring accommodation pursuant to § 504 (Tr. p. 457; Parent Ex. SS [mistakenly referred to in the transcript as Parent Ex. RR]).  A §  504 committee meeting took place on March 18, 2004 resulting in a determination that the student was not eligible for § 504 services (Tr. pp. 264-65). Because petitioner's daughter had not been determined eligible, respondent did not approve petitioner's daughter for participation in the BOCES program and, instead, provided her with the same services it provides other unclassified, homebound students: 10 hours of tutorial instruction per week (Tr. pp. 458-62). Petitioner appealed the denial of accommodations. By letter dated April 21, 2004 respondent's assistant superintendent for special education and pupil services denied the appeal (Dist. Ex. 13).

           On June 8, 2004 petitioner's attorney served respondent with a written request for a due process hearing (IHO Ex. 1). The parties' interpretation of this request has given rise to a substantial amount of confusion. The request was captioned and entitled, "Request Due Process Proceedings Pursuant to the IDEA and Section 504 of the Rehabilitation Act." Respondent treated petitioner's due process request as arising exclusively under § 504 and appointed a hearing officer pursuant to its § 504 procedures (Tr. p. 5).

           The hearing commenced on July 6, 2004.  In opening remarks, the hearing officer stated that the hearing was being conducted pursuant to §  504 (Tr. p. 5). Additionally, however, he stated that "possibly" the hearing was also being conducted pursuant to IDEA and/or New York Education Law Article 89 (Tr. p. 5; see 20 U.S.C. § 1415[f][1]; N.Y. Educ. Law § 4404[1]). As to whether IDEA and Article 89 were, in fact, alternative bases for appeal, the hearing officer stated, "[t]hat will come up, I guess, in the course of the hearing" (Tr. p. 5).

           On August 11, 2004, the last day of the hearing, petitioner’s attorney asked the hearing officer to clarify whether he was or was not assuming IDEA jurisdiction (Tr. p. 583). He responded that he was not (Tr. p. 583).  On the record, petitioner’s attorney then requested appointment of an IDEA impartial hearing officer (Tr. p. 583). The student, still, had been neither referred to nor evaluated by the Committee on Special Education (CSE). By letter dated August 19, 2004, therefore, respondent's assistant superintendent for special education and pupil services asked petitioner whether he wished to treat his attorney’s IDEA hearing request (Tr. p. 583) as a referral to the CSE (Answer Ex. B). Petitioner responded that he did, but that he still wished to move forward with a hearing pursuant to the IDEA as requested on June 8, 2004 (Answer Ex. C). Petitioner consented to have his daughter evaluated (Answer Ex. D), and the CSE scheduled a meeting for November 5, 2004 (Answer Ex. F). 

           The hearing officer issued his decision on September 9, 2004. The hearing officer determined that petitioner’s IDEA claims were “inappropriate” because there had been no referral to a CSE for an evaluation and determination of eligibility for special education services (IHO Decision, pp. 11, 13) (see 8 NYCRR 200.4).  He also dismissed “all other matters from the question of IDEA.” In addition, the hearing officer denied petitioner’s requests for accommodations under § 504 (IHO Decision, p. 14).

           On appeal, petitioner asserts that respondent failed to refer his daughter to a CSE for an evaluation and determination of eligibility for special education services during the ninth grade when she began demonstrating problem behaviors and receiving failing grades. Petitioner also asserts that respondent failed to appoint an impartial hearing officer pursuant to state regulation (8 NYCRR 200.2[e], 200.5[i][1][i][3]) and that the hearing officer that was appointed improperly exercised jurisdiction over IDEA and Article 89 claims.

           The IDEA requires certain procedures to be in place to safeguard the right of children with disabilities to a free appropriate public education (FAPE) (see 20 U.S.C. § 1415[a]).  One procedural safeguard is a parent’s right to 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 (see 34 C.F.R. § 300.507; 8 NYCRR 200.5[i][1]).  In New York State, impartial hearing officers in IDEA proceedings must be appointed by the board of education in accordance with a very specific rotation selection process prescribed by the Regulations of the Commissioner of Education (see N.Y. Educ. Law § 4404[1]; 8 NYCRR 200.5[i][3][i]). State regulations require that a list be maintained of eligible impartial hearing officers' names in alphabetical order, and that selection shall be made beginning with the first name appearing after the last impartial hearing officer who served (8 NYCRR 200.2[e][1][ii]). In the event that the impartial hearing officer declines or is unreachable after reasonable efforts documented by the district, the district must offer the appointment to the next name on the list, in the same manner, until such appointment is accepted (id.). This process is designed to ensure that selection of impartial hearing officers for any proceeding will be random and unbiased. Impartial hearing officers on the list have successfully completed an impartial hearing officer training program (see N.Y. Educ. Law § 4404[1]).

          The hearing officer in the instant case was not appointed in accordance with the rotational process set forth in the Regulations of the Commissioner of Education governing the selection of impartial hearing officers for appeals arising under IDEA and its state counterpart, Education Law Article 89 (Tr. p. 369; see 8 NYCRR 200.2[e]; 200.5 [i]; see Application of a Child with a Disability, Appeal No. 04-016; Application of a Child with a Disability, Appeal No. 04-061).

            The first issue to be addressed is whether respondent erred in failing to appoint an impartial hearing officer after receiving petitioner’s June 8, 2004 hearing request.  The record demonstrates that it did err. The hearing request submitted by petitioner complied with the notice requirements of federal and state regulation (see 34 C.F.R. 300.507(c); 8 NYCRR 200.5[i][1][i]), specifically alleged violations of IDEA, and requested, inter alia, an order directing respondent to evaluate the student through the CSE process.  Moreover, the request asked that the student be provided a FAPE, the substantive right afforded by the IDEA (see 20 U.S.C. § 1412[a][1]). Having received such notice, it was incumbent upon respondent to appoint an impartial hearing officer from the rotational list to hear petitioner’s IDEA/Article 89 claims.

            More specifically, respondent's failure to invoke the IDEA/Article 89 rotational selection process was error because petitioner alleged violation of respondent's "child find" obligation in his request for due process (IHO Ex. 1). IDEA places an affirmative duty on state and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the state (20 U.S.C. § 1412[a][3]; 34 C.F.R. § 300.125[a][1][i]; 8 NYCRR 200.2[a][7]; New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp.2d 394, 400, n.13 [N.D.N.Y. 2004]). This duty applies to "children who are suspected of being a child with a disability…and in need of special education, even though they are advancing from grade to grade" (34 C.F.R. § 300.125[a][2][ii]). To satisfy the requirement, a board of education must have procedures in place that will enable it to find such children (Application of a Child Suspected of Having a Disability, Appeal No. 01-082; Application of a Child with a Disability, Appeal No. 93-41). 

           Respondent’s child find obligation is an affirmative one. The child find duty is triggered when the district "has reason to suspect a disability and reason to suspect that special education services may be needed to address that disability" (St. Pierre, 307 F. Supp. 2d 394; Dept. of Educ. v. Cari Rae S., 158 F. Supp. 2d 1190 [D. Haw. 2001]; Application of a Child Suspected of Having a Disability, Appeal No. 01-082).

            Respondent contends that petitioner attempted to "trap" the district by failing to refer his daughter to the CSE and then charging respondent with a child find violation.  The issue on appeal is not whether respondent actually violated its child find duties but, rather, whether respondent erred by failing to appoint an impartial hearing officer pursuant to the IDEA/Article 89 rotational selection process to hear petitioner's child find claims.  In light of the allegations set forth in petitioner's request for due process (IHO Ex. 1), I find that respondent should have appointed an impartial hearing officer pursuant to the IDEA/Article 89 rotational selection process, to resolve petitioner’s assertion that respondent failed to properly identify and evaluate his daughter's needs.

           The second issue to be addressed is whether a hearing officer appointed pursuant to § 504 erred in exercising jurisdiction over IDEA/Article 89 claims. The record demonstrates that he did. The hearing officer erred by failing to clarify the statutory authority pursuant to which he had been appointed, and by concluding that the IDEA/Article 89 claims “fail[ed] in all respects and must be dismissed” (IHO Decision, p. 11).  The district did not invoke the mandatory rotational selection process for IDEA/Article 89 hearings when it appointed him. The hearing officer should have recognized the error and informed the parties that his jurisdiction extended only to the  § 504 issues. As indicated, the hearing officer had no jurisdiction to address IDEA or Article 89 claims to the extent that he dismissed them.  The determinations made by the hearing officer pertaining to the validity of the IDEA/Article 89 claims are void and of no effect. 

           Finally, New York State law makes no provision for an administrative review of hearing officer decisions involving § 504 claims (Application of a Child with a Disability, Appeal No. 98-73; Application of a Child with a Disability, Appeal No. 96-37; Application of a Child with a Disability, Appeal No. 97-80; Application of the Bd. of Educ., Appeal No. 98-36).  I find that I lack jurisdiction to review the hearing officer’s determination of petitioner's § 504 claims. Petitioner’s remedy is to seek review in the courts (Application of a Child with a Disability, Appeal No. 96-37).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the part of the hearing officer’s decision which dismissed on the merits petitioner’s claims raised under the IDEA and New York Education Law Article 89 is annulled; and

IT IS FURTHER ORDERED that respondent, if it has not already done so, shall appoint an impartial hearing officer from its rotational list to hear petitioner’s IDEA/Article 89 claims identified in his June 8, 2004 hearing request.