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Decision No. 14,211

Appeal of a STUDENT WITH A DISABILITY by her parents and the Board of Education of the Greece Central School District to compel James G. Parker, as Impartial Hearing Officer, to issue an impartial hearing decision.

Decision No. 14,211

(September 15, 1999)

Susan Burgess, Esq., attorney for petitioner parents of a Student with a Disability

Bouvier, O'Connor, attorneys for petitioner Board of Education of the Greece Central School District, Bruce Goldstein, Esq. and Elizabeth Wright, Esq., of counsel

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

Petitioners are the parents of a student with a disability classified as emotionally disturbed by the Committee on Special Education ("CSE") of the Greece Central School District and the Board of Education of that district.

On October 28, 1997, petitioner board received a request for an impartial hearing on behalf of the student in this appeal. Following six days of hearings, the hearing officer resigned and petitioner board appointed James G. Parker ("respondent") as the impartial hearing officer on July 16, 1998 to resume the hearing. A pre-hearing conference was held on August 11, 1998 during which petitioners stipulated to the record produced through the sixth day of the hearing. Petitioners further agreed to provide respondent with the hearing transcript and all exhibits introduced into evidence during those previous six hearing days. Respondent agreed to review the transcript and related exhibits prior to the hearing date scheduled for August 17, 1998.

The hearing resumed and was completed on August 17, 1998. Respondent set forth a schedule for submissions at the close of the hearing. The schedule provided deadlines for the parties to submit briefs based upon the anticipated receipt of a hearing transcript from the court reporter on August 31, 1998. Respondent stated on the record that his decision would be sent to the parties by October 9, 1998. Unfortunately, the court reporter was unable to complete the transcription by August 31, 1998. As a consequence of this delay, respondent established a new schedule for submissions on October 6, 1998. Under this revised schedule, respondent agreed to render a decision two weeks from his receipt of the post hearing briefs.

On November 19, 1998, petitioners exchanged reply briefs and provided copies to respondent. On December 11 and 14, 1998, petitioners exchanged letters confirming that neither had received a copy of the decision and clarifying their understanding that respondent had agreed to render a decision no later than December 9, 1998.

Beginning on December 16, 1998, petitioners sent seven letters to respondent requesting the status of his decision and expressing concern over his delay.

By letter dated February 17, 1999, respondent informed petitioners that he had been ill since December 27, but was back to work and expected to issue the decision before the end of February 1999. On March 23, 1999, respondent informed petitioners by telephone that he would render his decision by the end of March 1999.

Petitioners commenced this appeal on May 24, 1999 seeking an order directing respondent to render a decision expeditiously. In the event respondent fails to render such decision as directed, petitioners request an order for the appointment of a new hearing officer to render an expedited decision on the existing record. Respondent was personally served with the petition on May 24, 1999 and has not submitted an answer.

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]). 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 an Handicapping Condition, 30 Ed Dept Rep 64, Decision No. 12,393). 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 (Appeal of a Student with a Disability, 38 Ed Dept Rep 386, Decision No. 14,061; Appeal of a Student with a Disability, 38 id. 383, Decision No. 14,060; Matter of a Handicapped Child, 21 id. 342, Decision No. 10,706).

In this case, nine months have passed since the parties submitted their post-hearing briefs. Even assuming an extension of the 45-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 respondent has failed to fulfill his obligation to provide the decision in a timely manner. I direct respondent to issue a decision on the record of the hearing within ten days of the date of this decision.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent issue within ten days a decision on the record of the impartial hearing concluded on August 17, 1998 and provide a copy of said decision to my Office of Counsel immediately.

END OF FILE