05-026

            Petitioner appeals from the decision of an impartial hearing officer which dismissed for lack of prosecution petitioner’s hearing request concerning the recommendations made by respondent’s Committee on Special Education (CSE) for her daughter for the 2004-05 school year.  The appeal must be dismissed.

            Preliminarily, I will address a procedural issue raised in this appeal.  Respondent asserts in its answer that petitioner failed to commence this appeal within the time period set forth in Part 279 of the Regulations of the Commissioner of Education (8 NYCRR 279.2[b]). State regulation requires that a petition for review of an impartial hearing officer's decision shall be served upon the school district within 35 days from the date of the decision sought to be reviewed (8 NYCRR 279.2[b]).  If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period (id.).  A State Review Officer may excuse a failure to timely seek review within the time specified for good cause shown (8 NYCRR 279.13).  The reasons for such failure shall be set forth in the petition (id.).

            The impartial hearing officer’s decision is dated January 13, 2005 (IHO Decision, p. 8).  The record does not reflect how the decision was served.  Petitioner served the petition for review on respondent on February 25, 2005.  Whether or not the decision was served on petitioner by mail, the petition for review was untimely served.  Petitioner did not specify good cause in the petition for the late service of the petition (see 8 NYCRR 279.13).  Petitioner did submit a letter to the Office of State Review, dated February 25, 2005, indicating that the "appeal" was not timely served due to the parent's inability to obtain a notary public to notarize the verification.  Petitioner did not file a reply to respondent's affirmative defense alleging that the notice of intention to seek review and petition for review were served in an untimely manner. 

            I find that petitioner's letter of February 25, 2005 does not comply with the requirement that good cause for filing a late petition be stated in the petition (8 NYCRR 279.13).  Furthermore, I am not persuaded to accept the untimely petition because petitioner's excuse does not amount to good cause.  The petition is, therefore, dismissed (Application of a Child with a Disability, Appeal No. 04-067; Application of a Child with a Disability, Appeal No. 03-109; Application of a Child with a Disability, Appeal No. 02-096).

            In addition to dismissing the petition because it was not timely served, I concur with the impartial hearing officer’s determination to dismiss the hearing below.

            The impartial hearing officer determined that dismissal was required due to petitioner’s refusal to identify the issues for the hearing, despite several requests from the impartial hearing officer to do so, and due to the expiration of the 45-day time limit set forth in regulation for an impartial hearing officer to render a decision (IHO Decision, p. 8). 

            By letter dated August 3, 2004, petitioner requested an impartial hearing stating that she was not in agreement with the 2004-05 individualized education program (IEP) “for placement, program, services, [and] classification” that had been developed for her daughter (IHO Ex. 1). In the letter, petitioner also requested an emergency CSE meeting and a neuropsychological evaluation of her daughter (id.).

            Respondent formally notified the impartial hearing officer of his appointment by letter dated August 12, 2004 (IHO Ex. 2).  The parties held a prehearing conference call on August 20, 2004 (IHO Decision, p. 4).   

            In his summary of the prehearing conference, the impartial hearing officer indicated that petitioner had asserted that the student had not been tested in all areas, the student’s classification as learning disabled (LD) might not be appropriate, and the student's class placement was not based on similarity of needs (IHO Ex. 3).  Additionally, respondent had agreed to pay for a neuropsychological evaluation, however, there remained a dispute over who would conduct the evaluation (id.).  The impartial hearing officer indicated that he would reconvene the parties when he was notified of the outcome of a CSE meeting which had been scheduled to "review the evaluation request and other issues" (id.).¹   The petitioner agreed to participate in the CSE meeting (id.).

            By electronic mail dated October 5, 2004, respondent notified the impartial hearing officer that at a September 24, 2004 meeting the CSE recommended “DCT”² one hour per day in a fourth grade program; resource room for 40 minutes per day; two occupational therapy (OT) sessions per week in a group; and three 30 minute sessions of speech, one individual and two group (IHO Ex. 5). Respondent also asserted it agreed to provide independent evaluations in speech-language, OT and assistive technology. Respondent also agreed to administer the Woodcock-Johnson Reading Mastery Test.  Respondent asserted that the only issue not agreed upon by the parties was an independent neuropsychological evaluation, which respondent agreed to fund at public expense, provided that petitioner withdrew her hearing request (id.). 

            In electronic mail dated October 5, 2004, petitioner asserted that at the CSE she did not agree with the recommended number of sessions of speech therapy the student was to receive (IHO Ex. 6).  Additionally, petitioner indicated that she had agreed to the speech-language evaluator but was not in agreement with the evaluator that respondent recommended for the OT and assistive technology evaluations.  Petitioner also disagreed with respondent's description of the offer that had been made regarding the neuropsychological evaluation.  She asserted that respondent offered a specific amount of money to pay for the evaluation regardless of who administered the evaluation and that there was no mention of the requirement of withdrawing her hearing request. Petitioner indicated she would not withdraw her hearing request. 

            In electronic mail to the parties dated October 7, 2004, the impartial hearing officer outlined what he believed to be the remaining issues in dispute (IHO Ex. 7).  He stated that the remaining issues involved the amount of service and provider of the speech therapy, the question of who would conduct the OT and assistive technology evaluations, and the neuropsychological evaluation. He noted that both parties were in agreement that the evaluations should take place and stated his belief that the issues could be resolved without a hearing.  He suggested the parties conduct the evaluations promptly, review the results at a subsequent CSE meeting, and determine whether there were still  disagreements. The impartial hearing officer stated that if petitioner disagreed with the CSE recommendations, the hearing would go forward. He directed that the parties respond to his proposal by October 13, 2004. 

            Petitioner responded to the impartial hearing officer by electronic mail on October 19, 2004 (IHO Ex. 8).  She requested that the hearing go forward, asserting that respondent was “delaying any type of agreement which we had entered into at the CSE meeting” (id.).   

            In response, on October 19, 2004 the impartial hearing officer, by electronic mail, stated that petitioner was not responsive to his October 7, 2004 request concerning the issues and his proposal to address them (IHO Ex. 9).  He reiterated the recitation of outstanding issues from his prior electronic mail and requested specific responses from both of the parties.  He indicated his willingness to consider extension requests from the parties, which he specified should conform to the requirements of 8 NYCRR 200.5(i)(4)(ii), and that if he did not receive such a request from either party, it was possible that he would dismiss the hearing. 

            In her reply, petitioner did not address the issues that the impartial hearing officer had requested be addressed. By electronic mail dated October 20, 2004 petitioner again requested that the hearing go forward, asserting that the hearing had been delayed by the impartial hearing officer's permitting respondent to convene a CSE meeting in September, where no resolution was reached (IHO Ex. 10).

            Respondent clarified its position by electronic mail dated October 20, 2004 (IHO Ex. 11).  Respondent asserted that it would provide three independent evaluations: 1) in speech by the evaluator requested by petitioner, 2) in OT upon completing its investigation for an outside group that conducts sensory motor integration assessments, and 3) in assistive technology by an evaluator that could conduct the evaluation more expeditiously than the evaluator requested by petitioner.  In addition, respondent indicated it would fund the independent neuropsychological evaluation. Respondent asserted that it would be premature to reconvene the impartial hearing before a CSE meeting could be held to review the evaluations and make recommendations. Lastly, respondent noted that the student continued to receive services pursuant to her pendency IEP.

           In electronic mail, dated October 20, 2004, the impartial hearing officer asked petitioner to identify her “specific areas of disagreement and identify any specific issues that you believe are outstanding” (IHO Ex. 12).  The impartial hearing officer also indicated he was granting another 30 day extension based upon the request made by respondent and that respondent had addressed the necessary issues to be considered in determining whether to grant an extension request (id.).  The impartial hearing officer granted an extension of time, extending the time within which he was required to render a decision to November 19, 2004 (IHO Ex. 13).  Petitioner did not respond to the impartial hearing officer’s request. 

           In electronic mail dated November 17, 2004, the impartial hearing officer requested that the parties report on the status of the case as he had not heard from either party since October 20, 2004 and reminded the parties that the then current extension expired on November 19, 2004 (IHO Ex. 14).  On the same day, petitioner replied that respondent had not “administered” any evaluations (IHO Ex. 15).  She again requested “a hearing date be set as soon as possible (id.).  The impartial hearing officer inquired as to what had been transpiring between the parties as it had appeared that there was agreement on several independent evaluations (IHO Ex. 16).  He informed petitioner that she had not identified her objections and issues as he had repeatedly requested.  He stated that there was no need to schedule a hearing if she could not identify the issues (id.).  He also stated that he would consider dismissing the hearing if neither party updated him on the status of the case (id.). 

           In electronic mail dated November 19, 2004 respondent replied to the impartial hearing officer’s request for an update on the status of the case (IHO Ex. 17).  Respondent stated it was waiting for a date from the identified evaluator for the neuropsychological evaluation.  They were also waiting to hear from the Tree Center for an assistive technology evaluation because the Helen Hayes Rehabilitation Center that petitioner had requested was "not responsive" and had a waiting list. Respondent further indicated that an appointment was scheduled for a speech-language evaluation, and it was attempting to locate an OT who specialized in sensory integration to administer the OT evaluation, as the parent had requested. 

           In electronic mail dated November 19, 2004 the impartial hearing officer asked respondent how it proposed to proceed given that the evaluations were going to take some time to complete (IHO Ex. 18).  He also indicated that he did not know their relevance to hearing issues because he was unaware of what were the remaining issues in dispute.

            In electronic mail dated November 22, 2004 petitioner requested that “we begin the process” and again asserted that respondent was delaying the hearing (IHO Ex. 19). 

            In electronic mail dated November 22, 2004 respondent asserted that it had addressed the issues raised by petitioner, as it understood them in the absence of further identification by petitioner, by agreeing to pay for the neuropsychological evaluation and restoring the student’s placement to that of the 2003-04 school year (IHO Ex. 20).  Respondent indicated it had expected that upon its advising petitioner that it would pay for the neuropsychological evaluation, the evaluation would be scheduled by petitioner.  Respondent requested that the impartial hearing officer dismiss the hearing without prejudice because petitioner did not identify the issues or what relief she was seeking.  In the alternative, respondent requested that an extension be granted.

            In electronic mail dated November 22, 2004 the impartial hearing officer again requested that petitioner identify the issues for the hearing, indicating that this was his fourth or fifth request, and advised respondent to make an appropriate motion if it believed dismissal to be appropriate (IHO Ex. 21).

            On November 22, 2004 the impartial hearing officer granted respondent's request for an extension of time to complete the hearing, establishing a new date for rendering a decision as December 19, 2004 (IHO Ex. 22).

            By letter dated December 28, 2004 the impartial hearing officer notified petitioner that he made the request for her to identify the hearing issues “four or five times,” that she failed to respond to those requests, and that she failed to respond to his last electronic mail to her on November 22, 2004 (IHO Ex. 23).  Additionally, he noted the last extension granted expired on December 19, 2004 without any further requests for extensions from either party.  He further explained the he was prepared to dismiss the case for lack of prosecution and requested that petitioner explain in writing why he should not dismiss the matter.  He provided a January 7, 2005 deadline for such a response. 

            The impartial hearing officer did not receive a response to his letter from petitioner (IHO Decision, p. 7). 

            By decision dated January 13, 2005, the impartial hearing officer determined that dismissal was an appropriate sanction for petitioner’s failure to comply with his directives to identify the hearing issues remaining in dispute and by failing to respond to his letter of December 28, 2004 warning that the hearing would be dismissed (IHO Decision, p. 8).  He also indicated that the 45 days within which a decision must be rendered had expired, that he could not extend the timeline on his own, and that petitioner had not requested an extension (id.).  Accordingly, the impartial hearing officer dismissed petitioner’s hearing request.

            On appeal, petitioner asserts that the impartial hearing officer’s decision should be annulled.  By answer dated March 7, 2005, respondent seeks dismissal of the petition.

            Both state and federal law, specify the required content of parent notice in a due process hearing request (20 U.S.C. § 1415[b][7][B]; 34 C.F.R. § 300.507[c][2]; 8 NYCRR 200.5[i][1][i]; see Application of a Child with a Disability, Appeal No. 04-061). In addition to the name and address of the child and the name of the child’s school, such notice must also include "a description of the nature of the problem of the child relating to such proposed initiation or change [in the child's program], including facts relating to such problem" (20 U.S.C. § 1415[b][7][B][ii]; see 34 C.F. R. § 300.507[c][2][iv]; 8 NYCRR 200.5[i][1][i][d]), and "a proposed resolution of the problem to the extent known and available to the parents at the time" (20 U.S.C. § 1415[b][7][B][iii]; 34 C.F.R. § 300.507[c][2][v]; 8 NYCRR 200.5[i][1][i][e]). The U.S. Department of Education has promulgated an additional implementing regulation, not found in the IDEA, which provides that a parent’s failure to give proper notice as required by 20 U.S.C. § 1415(b)(7)(B) will not delay or deny a parent’s right to a due process hearing (34 C.F.R. § 300.507[c][4]; see also 8 NYCRR 200.5[i][1][i][f]). The 1997 Amendments to the IDEA added a provision that attorneys' fees could be reduced if the parent's attorney failed to provide the school district with proper notice of the complaint in accordance with 20 U.S.C. § 1415(b)(7)(B) (see 20 U.S.C. § 1415[i][3][F][iv]). In emphasizing the importance of the sufficiency of notice provision, both the Senate and House Committee Reports on the 1997 Amendments noted that "The committee believes that the addition of this provision will facilitate an early opportunity for schools and parents to develop a common frame of reference about problems and potential problems that may remove the need to proceed to due process and instead foster a partnership to resolve problems" (Senate Rpt.105-017, Individuals with Disabilities Education Act Amendments of 1997, Part V: Explanation of Bill and Committee Views, Title I-Amendments, Procedural Safeguards [May 9, 1997]; see House Rpt.105-095, Individuals with Disabilities Education Act Amendments of 1997, Explanation of the Bill and Committee Views, Title I-Amendments, Procedural Safeguards Section 615 [May 13, 1997]).

        The purpose of the sufficiency of notice requirement is grounded in principles of due process and fairness. It ensures that both parties have an understanding of the disputed issues resulting in a more meaningful due process hearing; bringing about a fair resolution to the matter, while preventing unnecessary loss of time, money and other resources spent defending uncontested issues. Proper due process notice allows respondents to have an awareness and understanding of the issues in sufficient time for them to prepare a response. Also, ensuring that both parties have a clear understanding of the subject matter of the complaint focuses the issues of the hearing and allows the parties to more effectively comply with the five day disclosure rule (see 34 C.F.R. § 300.509[a][3]; 8 NYCRR 200.5[i][3][xii][a]), and to more effectively prepare to present their respective positions to the hearing officer. It in no way limits a hearing officer from using principles of common sense and fairness in determining when to expand the hearing to include new relevant issues, under the proper circumstances, should they arise.

        A hearing officer's duties are clearly defined in state regulations (see 8 NYCRR 200.5[i]). According to the regulations, one of the express purposes of the prehearing conference is to simplify and/or clarify the issues, and identify evidence to be entered on the record, and the witnesses expected to testify (8 NYCRR 200.5[i][3][xi][a], [c], [d]). In addition, it is the hearing officer's responsibility to limit the scope of the hearing to relevant and nonrepetitious evidence and testimony (8 NYCRR 200.5[i][3][xii][c], [d], [e]), and to, whenever practical, enter into the record a stipulation of facts and/or joint exhibits agreed to by the parties (8 NYCRR 200.5[3][xii][b]). Although a hearing officer may not, under 34 C.F.R. § 300.507(c)(4) unduly delay a parent’s request for a due process hearing because they have failed to fully specify the details of their complaint in their request for a hearing, I see nothing which prevents a hearing officer, either in a prehearing conference or on the first day of the hearing, from asking the parents and/or their representative to further identify or specify on the record what parts of the child's program they are dissatisfied with and/or generally the violations they believe the district has committed in order to properly focus the hearing. Indeed, it would appear to be advantageous to both parties in reaching a fair and expeditious resolution of the matter to do so. Focusing the issues that are in dispute and identifying those that are not serves to expedite the hearing process, not delay it.

        Here, a request for an impartial hearing was made and the issues in dispute were identified during a prehearing conference. It appears from the record that respondent offered and agreed to address the issues in dispute and expressed willingness to address other educational needs of the student as identified by the independent evaluations (IHO Ex. 11). In the circumstances presented here, I find that petitioner’s request for a hearing was not denied or delayed because of a lack of specificity in her complaint; the hearing request was dismissed because petitioner’s demands pertaining to educational evaluations and programming were apparently met, and petitioner failed to specify issues remaining in dispute.  Respondent and the impartial hearing officer did not know what more petitioner sought in terms of educational services (IHO Ex. 20).  The impartial hearing officer made repeated requests for petitioner to identify the specific issues remaining that were in dispute (IHO Exs. 12, 16, 21). Petitioner did not adequately address these requests.  It appears from the record of correspondence that respondent agreed to provide what petitioner requested in her hearing request to such an extent that it was not clear what issues remained in dispute (IHO Exs. 5, 11, 20). The impartial hearing officer also repeatedly indicated that he could not unilaterally extend the 45 day timeline within which a decision must be rendered.  Petitioner did not make a request for such for an extension.  The impartial hearing officer clearly warned the parties that he would dismiss the hearing request (IHO Exs. 16, 21, 23).   Petitioner did not respond to his letter of December 28, 2004, asking petitioner to explain in writing why the hearing should not be dismissed for lack of prosecution (IHO Ex. 23). 

          I find that it was within the impartial hearing officer's authority, as a reasonable directive, to require petitioner to identify specific hearing issues remaining in dispute and I find that petitioner was obligated to comply with such a directive (Application of a Child with a Disability, Appeal No. 04-061; Application of a Child with a Disability, Appeal No. 04-010; Application of a Child with a Disability, Appeal No. 04-103). In the circumstances presented here, dismissal of petitioner’s hearing request was an appropriate sanction for failure to comply with the impartial hearing officer’s reasonable directives.

           I find no basis on which to disturb the decision of the impartial hearing officer.  The appeal is dismissed on the grounds that petitioner failed to pursue her appeal in a timely manner and the impartial hearing officer properly dismissed petitioner’s hearing request for failure to comply with his reasonable directives to identify issues remaining in dispute.

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

THE APPEAL IS DISMISSED.