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Decision No. 14,145

Appeal of a STUDENT SUSPECTED OF HAVING A DISABILITY, by his parents, from action of the Board of Education of the Seaford Union Free School District regarding the convening of an impartial hearing.

Decision No. 14,145

(June 21, 1999)

Leon & Deffet, attorneys for petitioners, Michael Deffet, Esq., of counsel

Ingerman Smith, LLP, attorneys for respondent, Christopher M. Venator, Esq., of counsel

MILLS, Commissioner.--Petitioners challenge the alleged failure of the Board of Education of the Seaford Union Free School District ("respondent") to timely convene an impartial hearing. The appeal must be sustained in part.

Petitioners’ son is a twelfth grade student in respondent’s district who has been identified as having a disability pursuant to Section 504 of the Rehabilitation Act of 1973 ("Section 504"). By letter dated April 10, 1998, petitioners requested an impartial hearing to contest respondent’s failure to identify their son as a student with a disability and its attempt to remove their son from school. By agreement of the parties, the hearing was adjourned for over nine months to obtain further evaluations and pursue settlement discussions. On January 29, 1999, petitioners rejected the proposed Section 504 accommodation plan developed by respondent.

By letter dated February 12, 1999, respondent received another request from petitioners’ attorney for an impartial hearing based on respondent’s alleged failure to classify petitioners’ son under the Individuals with Disabilities Education Act ("IDEA"). As of the date of the commencement of this appeal, the impartial hearing had not been scheduled.

On April 14, 1999, I granted petitioners’ request for interim relief and ordered respondent to ensure that an impartial hearing was convened immediately, unless otherwise agreed by the parties and the impartial hearing officer. On April 30, 1999, respondent’s attorney notified my Office of Counsel that the parties agreed to schedule the impartial hearing for May 11, 1999.

Petitioners seek a determination that respondent violated their rights by failing to convene a timely impartial hearing. They also seek an order requiring respondent to revise its policies and practices to ensure the provision of timely impartial hearings.

Respondent denies that it violated petitioners’ rights by failing to convene a timely impartial hearing. Respondent’s attorney claims that he attempted to convene the requested hearing, but was unable to reach the previously appointed hearing officer. Respondent also maintains that the parties, by their actions, waived the timeline contained in both federal and State regulations. Respondent further argues that the appeal should be dismissed as moot.

First, respondent asks that I dismiss this appeal as moot. Indeed, the Commissioner of Education only decides matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of Alan G., 38 Ed Dept Rep 46, Decision No. 13,978; Appeal of DePaulis, 38 id. 10, Decision No. 13,972; Appeal of a Student with a Disability, 36 id. 229, Decision No. 13,708). However, "it is settled doctrine that an appeal will, nevertheless, be entertained where, as here, the controversy is of a character which is likely to recur not only with the [same] parties… but with respect to others as well" (East Meadow Community Concerts Ass’n v. Board of Educ., Union Free School Dist. No. 3, County of Nassau, 18 NY2d 129, 135; Appeal of Feiss, 37 Ed Dept Rep 339, Decision No. 13,874; Appeal of Astafan, 36 id. 463, Decision No. 13,776). The legal issue raised in this appeal – whether respondent violated the timeline set forth in both federal and State regulations for impartial hearings – is important and does not become moot because the parties agreed to schedule the hearing subsequent to my interim order. Therefore, I will not dismiss the appeal as moot.

As to the merits, both 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 300.511[a]; 8 NYCRR "200.5[c][11]). However, a hearing officer may grant specific extensions of time beyond 45 days at the request of either party (34 CFR 300.511[c]; Appeal of a Student with a Disability, 38 Ed Dept Rep 383, Decision No. 14,060; Appeal of a Student with a Disability, 38 id. 386, Decision No. 14,061).

Respondent acknowledges its responsibility to convene the hearing. Respondent suggests, nevertheless, that it is not culpable in the instant matter because petitioners' counsel failed to contact the impartial hearing officer to reschedule the hearing. The federal regulation specifically states that it is the district’s duty, not the parents of a disabled student, to ensure that a timely hearing and decision takes place after the parent requests an impartial hearing (34 CFR 300.511[a]; 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, Decision No. 12,393).

Respondent’s attorney also claims that he attempted to schedule the hearing but was unable to reach the previously appointed hearing officer. I find that the inability to reach the appointed impartial hearing officer, on its own, does not relieve respondent of its regulatory obligation to ensure the timely convening of the hearing. The only other evidence in the record demonstrating respondent’s efforts to schedule the hearing is a letter from its attorney to the hearing officer dated March 31, 1999, two days after the commencement of this action and 47 days after respondent received the request for the impartial hearing.

Respondent also maintains that the parties have waived the 45-day requirement. While the record reflects that petitioners agreed to hold their initial request for an impartial hearing in abeyance to facilitate their son's evaluation and settlement negotiations, there is no evidence in the record to support respondent's assertion that petitioners waived their right to a timely hearing and decision in connection with their second impartial hearing request.

Since the impartial hearing was scheduled more than 45 days after respondent received the request, it is clear that the impartial hearing officer will not be able to render a decision in a timely fashion. Therefore, I find that respondent failed to satisfy its regulatory obligation to ensure a timely hearing and decision. I direct respondent to assure that a decision is issued expeditiously in response to the petitioners' most recent impartial hearing request and to, in the future, take prompt action to enforce the regulatory timeline for the issuance of hearing decisions.

I have considered the parties' remaining claims and find them without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent assure the expeditious issuance of a decision in response to the petitioner's most recent hearing request and, in the future, take prompt action to enforce the regulatory timeline for the issuance of hearing decisions.

END OF FILE