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Decision No. 14,061

Appeal of a Student with a Disability by his parents, from action of the Board of Education of the Rocky Point Union Free School District and Stanley Abrams as Impartial Hearing Officer, regarding issuance of an impartial hearing decision.

Decision No. 14,061

(December 23, 1998)

Pamela Phillips Tucker, Esq., attorney for petitioner

Kevin A. Seaman, Esq., attorney for respondent Rocky Point Union Free School District

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

Petitioner's son is classified as a student with a disability by the committee on special education (CSE) of the Board of Education of the Rocky Point Union Free School District ("respondent board"). On August 20, 1996, petitioner requested an impartial hearing to challenge her son's individualized education program (IEP) for the 1996-97 school year. Respondent board appointed respondent Stanley Abrams as the impartial hearing officer by respondent board. A hearing commenced on October 3, 1996, was held over seventeen hearing dates, and ended April 28, 1997. Forty-five exhibits were entered and the parties submitted post-hearing briefs on June 27, 1997. Subsequently, petitioner and her attorney contacted respondent Abrams by telephone to request that he issue a hearing decision. By letter dated May 12, 1998, the superintendent of schools for respondent board notified respondent Abrams that no final hearing determination had been received and requested that he provide a written response.

Petitioner commenced this appeal on September 1, 1998 seeking a decision in her favor or, in the alternative, immediate appointment of an IHO for the sole purpose of rendering a decision in the hearing. Respondent Abrams admits that he has not issued a hearing decision and does not oppose the relief requested by petitioner. Respondent Abrams apparently has no intention of issuing a decision in the matter, arguing that any decision he may issue is unlikely to provide meaningful assistance for the student, given the passage of time. Respondent board contends that the appeal is moot because respondent Abrams' answer to the petition constitutes his "decision" and because the student's 1997-98 and 1998-99 IEP's provided the full inclusion program requested by petitioner at the hearing. Respondent board also contends that the relief requested is not tenable given the lengthy nature of the hearing and that the appropriate relief is an order directing respondent Abrams to render a decision by a set deadline.

Respondent board acknowledges its responsibility for ensuring compliance with the requirement of 8 NYCRR "200.5[c][11] that a decision by an IHO be rendered within forty-five days of receipt of the hearing request. Respondent board contends, nevertheless, that it is not culpable for the delay because the parties agreed to extend the timeline by scheduling submission of briefs on June 27, 1997 and because it took steps to solicit a decision from respondent Abrams.

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 that hearing decisions are issued within 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, eighteen months have passed since the parties submitted their post-hearing briefs. Even assuming that an extension of the forty-five day period was properly granted, the hearing decision is substantially overdue. I find that petitioner is entitled to have a written decision issued and that respondents have failed to fulfill their obligation to provide the decision in a timely manner. With regard to respondent board's procedural defense of mootness, I find that respondent Abrams' answer in this appeal merely attempts to explain his failure to issue a decision and does not, in any way, constitute an actual hearing "decision" on the record. Neither respondent Abrams' responsive pleading nor the subsequent IEP's that may reflect petitioner's placement preference for her son render this appeal moot. Petitioner's claim is viable until a decision on the record of the hearing is issued. I direct respondent Abrams to immediately issue a decision on the record of the hearing within ten days of the date of this decision. I further 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 Abrams issue a decision within ten days of the date of this decision on the record of the impartial hearing conducted between October 3, 1996 and April 28, 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 to, in the future, take prompt action to enforce the regulatory timeline for issuance of hearing decisions.

END OF FILE