Decision No. 12,647

(February 6, 1992)

Neal Howard Rosenberg, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner seeks an order directing respondent Hyde Park Central School District to adopt the IEP she deems appropriate for her son without an impartial hearing. The appeal must be dismissed.

On September 25, l990, petitioner requested an impartial hearing to challenge the evaluations conducted and the IEP recommended for her son for the 1990-1991 school year by respondent's Committee on Special Education (CSE). Respondent scheduled the impartial hearing for November 16, l990 and then rescheduled it for November 26, 1990 at petitioner's request. The hearing was rescheduled once again to December 17, 1990 at respondent's request. On December 17, 1990, the parties agreed to an adjournment, apparently to enable petitioner to visit a program recommended for her son and to allow respondent to evaluate him further. The CSE reconvened on January 29, 1991 and February 13, 1991. On February 14, l991, petitioner, again dissatisfied with the recommendations of the CSE, requested that the impartial hearing be rescheduled. Respondent did not set a new hearing date until April 2, 1991. On March 18, 1991, petitioner requested that respondent's school board attorney disqualify himself because of a conflict of interest. The district retained another attorney, and the hearing was rescheduled to May 1, 1991. Prior to the May 1 date, the hearing was again adjourned, this time indefinitely, by consent of the parties, to reach agreement on an acceptable IEP. On July 2, 1991, following a breakdown in negotiations, petitioner made a third request for an impartial hearing. The hearing was scheduled for August 1, l991. On July 31, 1991, respondent's attorney notified petitioner that the hearing would be postponed again because the hearing officer required surgery. Petitioner commenced this appeal.

On September 19, subsequent to the initiation of this appeal, the hearing requested by petitioner on July 2 finally proceeded. The hearing resumed on September 24, 1991, at which time the parties stipulated to the student's IEP for the 1991-1992 school year and the hearing was discontinued.

Prior to entering into the stipulation, petitioner sought a stay and order requiring respondent to implement immediately the IEP she deemed appropriate for the 1991-1992 school year as a remedy for respondent's failure to schedule a timely impartial hearing. The request for a stay was denied. Respondent contends that the petition should now be dismissed for mootness and for failure to state a claim.

Decisions can only be rendered in matters involving actual controversy. Because the parties' stipulation resolves all matters previously in dispute, no controversy exists and petitioner's appeal must be dismissed (Appeal of Healy, 29 Ed Dept Rep 391; Appeal of Grund, 28 id. 88; Matter of Froebrich, 24 id. 441).

Even if this case were not moot, I would dismiss it because petitioner failed to exhaust administrative remedies. In this case, rather than request an order to schedule an impartial hearing, petitioner seeks an order directing respondent to provide her son with particular educational services. However, the proper remedy for the failure of a district to schedule a timely hearing is to seek an order from the Commissioner directing that such a hearing be held or a decision rendered (Application of a Child with a Handicapping Condition, 30 Ed Dept Rep 64; Application of a Child with a Handicapping Condition, 28 id. 285; Matter of a Handicapped Child, 21 id. 342). Because petitioner has not followed the proper administrative process, her request for relief is premature.

Although I am constrained to dismiss this appeal, a system that allowed delays of almost an entire year before the dispute over a pupil's IEP was resolved requires comment. The Commissioner's regulations (8 NYCRR 200.5(c)(10)) provide that a decision of an impartial hearing officer must be rendered within 45 calendar days after receipt by the board of education of a request for a hearing. While some of the adjournments in this case were granted at petitioner's request or with her consent, the 45 day limit for rendering a decision was, nonetheless, consistently ignored. Although petitioner originally requested a hearing on September 2, 1990, respondent did not schedule the hearing until November 16, 1990, more than 70 days after petitioner's initial request. In response to petitioner's February 14 request to reschedule the hearing, respondent scheduled a hearing for April 2, again in excess of the 45 day limit for issuing a decision. Following petitioner's March 18 request that the school attorney be replaced, the hearing was not rescheduled again until May 1, an additional delay of 44 days. Although respondent scheduled a timely hearing in response to petitioner's third request, respondent did not reschedule the hearing once the hearing officer cancelled it because he was ill.

The ultimate responsibility for ensuring that a decision by an impartial hearing officer is rendered within 45 days of the request for the hearing lies with the board of education (Appeal of a Child with a Handicapping Condition, 28 Ed Dept Rep 493). While a hearing officer may grant reasonable requests for adjournments, respondent's delays in scheduling the hearings in the first instance are inexcusable. To assure full compliance in the future with the timelines established by law and regulation, I have referred this matter to my Office of Special Education Services to develop and monitor respondent's corrective action plan.

Finally, while this record reflects that agreement has been reached between the parties regarding this student's current IEP, there is no indication that his vocational needs have been assessed. Based on this student's age of 17 and his level of functioning, it appears that such an assessment, if not already conducted, should be arranged immediately.

THE APPEAL IS DISMISSED.

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