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Decision No. 14,060

Appeal of a Student with a Disability by her parents from action of the Board of Education of the West Islip Union Free School District and James Gregory Bailey, as Impartial Hearing Officer, regarding issuance of an impartial hearing decision.

Decision No. 14,060

(December 23, 1998)

Pamela Phillips Tucker, Esq., attorney for petitioner

Guercio & Guercio, attorneys for respondent Board of Education of the West Islip Union Free School District, Thomas M. Volz, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal from the failure of an impartial hearing officer (IHO) to render a decision. The appeal must be sustained.

Petitioners' daughter is classified as a student with a disability by the committee on special education (CSE) of the Board of Education of the West Islip Union Free School District ("respondent board"). Petitioners requested an impartial hearing to challenge their daughter's individualized education program (IEP) for the 1996-97 school year. Respondent board appointed respondent James Gregory Bailey as the impartial hearing officer. A hearing was held and post-hearing briefs were submitted by both parties on August 15, 1997. Subsequently, attorneys for petitioners and respondent board made numerous attempts to contact respondent Bailey in an attempt to prompt him to render a hearing decision.

Petitioners commenced this appeal on September 1, 1998 seeking a decision in their favor or, in the alternative, immediate appointment of an IHO for the sole purpose of rendering a decision in the hearing. Respondent Bailey was personally served with the petition on August 12, 1998 and did not submit an answer to the petition. Respondent board contends that petitioners failed to comply with the applicable statute of limitations to the extent they allege a denial of due process. Respondent board also contends that it has acted in good faith and in accordance with federal and state statutes, laws, and regulations. Respondent board further contends that the petition should be denied but requests an order directing respondent Bailey to issue a decision expeditiously, or in the alternative, appointing a new hearing officer to issue a new decision on this matter upon the record.

Federal and State regulations require that an impartial hearing officer render a decision within 45 days after the board of education receives a request for a hearing (34 CFR 300.512[a]; 8 NYCRR "200.5[c][11]). However, a hearing officer may grant specific extensions of time beyond forty-five days at the request of either party (34 CFR 300.512[c]). The board of education has an obligation to assure compliance with this regulatory time period (Evans v. Board of Educ. of Rhinebeck Cent. School Dist., 930 F.Supp. 83 (S.D.N.Y. 1996); Application of a Child with a Handicapping Condition, 30 Ed Dept Rep 64). The appropriate remedy in an appeal involving the failure of a hearing officer to render a timely decision is an order directing the hearing officer to render a decision Matter of a Handicapped Child, 21 Ed Dept Rep. 342).

In this case, sixteen months have passed since the parties submitted their post-hearing briefs. Even assuming an extension of the forty-five day period was properly granted, the hearing decision is substantially overdue. I find that petitioners are entitled to have a written decision issued and that respondents have failed to fulfill their obligation to provide the decision in a timely manner. I direct respondent Bailey to issue a decision on the record of the hearing within ten days of the date of this decision. I direct respondent board to assure that said decision is issued and to, in the future, take prompt action to enforce the regulatory timeline for issuance of hearing decisions.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent Bailey issue within ten days a decision on the record of the impartial hearing concluded on August 15, 1997 and provide a copy of said decision to my Office of Counsel immediately.

IT IS FURTHER ORDERED that respondent board assure that said decision is issued and, in the future, take prompt action to enforce the regulatory timeline for issuance of hearing decisions.

END OF FILE