Decision No. 13,208

(June 20, 1994)

SOBOL, Commissioner.--Petitioner appeals respondent's failure to provide him with a timely decision in an impartial hearing. The appeal must be sustained.

Petitioner is the parent of a student with a disability who resides in the Canastota Central School District ("respondent"). In September 1993, respondent's Committee on Special Education (CSE) met to discuss petitioner's son's educational needs. As a result of prior disputes with petitioner, respondent's former attorney took minutes reflecting the events of that meeting. The final paragraph of those minutes states that petitioner's advocate acted in an abusive, inappropriate and unprofessional manner during the meeting. On January 25, 1994, petitioner requested an impartial hearing to challenge his son's educational records. Respondent and petitioner agreed that the first person on the rotational list of hearing officers would not be appointed because that individual was employed by the BOCES which had previously provided educational services to petitioner's son. The next person on respondent's list was appointed by letter dated February 9, 1994, and a hearing date of February 18, 1994 was scheduled.

At the hearing on February 18, 1994, petitioner's advocate questioned the impartiality of the hearing officer because he was the CSE chairperson of a neighboring school district. The hearing officer recused himself based on petitioner's objections and ordered that a new hearing officer be appointed. Respondent appointed another hearing officer on March 8, 1994. However, that hearing officer failed to appear on the scheduled hearing date. This appeal ensued.

Petitioner alleges that respondent has failed to hold an impartial hearing in a timely manner in violation of federal and State regulations. Respondent denies that it has improperly delayed this matter.

Federal and State regulations provide that a hearing officer's decision must be issued not later than 45 days after the receipt by the board of education of a request for a hearing (34 CFR 300.512[a][1]; 8 NYCRR 200.5[c][11]). The record indicates that respondent received petitioner's request for a hearing on January 27, 1994 and appointed a hearing officer on February 9, 1994. The initial hearing in which the hearing officer recused himself was scheduled on February 18, 1994, 22 days from the request for the hearing. Due to the second hearing officer's recusal and the failure of the third hearing officer to appear on the scheduled hearing date, a fourth hearing officer was appointed and a hearing was held on March 28, 1994 with a second hearing date scheduled for April 13, 1994.

The record does not indicate that a decision has been issued, but it is clear that any decision has been delayed beyond the 45-day requirement. However, the record also indicates that respondent acted in good faith, attempted to schedule a timely hearing and was not the cause of any unnecessary delays. Thus, while I see no evidence that respondent has unnecessarily delayed this matter, I must remind respondent of its responsibility to assure that hearing decisions are issued within 45 days of receipt of the request for a hearing in accordance with applicable federal and State regulations (34 CRF 300.512[a][1]; 8 NYCRR 200.5[c][11]).

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent immediately provide petitioner with a decision of the impartial hearing officer if it has not already done so.

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