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Decision No. 14,355

Appeal of the BOARD OF EDUCATION OF THE RONDOUT VALLEY CENTRAL SCHOOL DISTRICT to compel DEE ESTELLE ALPERT, as Impartial Hearing Officer, to issue an impartial hearing decision.

Decision No. 14,355

(May 8, 2000)

Shaw & Perelson, LLP, attorneys for petitioner, Michael K. Lambert, Esq., of counsel

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

On August 27, 1998, petitioner received a request for an impartial hearing on behalf of a student with a disability, who is named through his parent as a respondent herein ("respondent parent"). On September 17, 1998, petitioner appointed Estelle Caswell to serve as impartial hearing officer. On October 13, 1998, Ms. Caswell resigned and respondent Dee Estelle Alpert was thereafter appointed to serve as impartial hearing officer. The hearing was conducted over several days and concluded on July 8, 1999, when the record was closed. Respondent Alpert purportedly made a decision on the record and indicated that she would follow up with a written decision prior to September 1999. Since that time, petitioner has made numerous telephone and written inquiries regarding the status of the hearing decision. Respondent Alpert has not responded to any of petitioner’s communications and has not rendered a written hearing decision.

Petitioner commenced this appeal on April 11, 2000 seeking an order directing respondent Alpert to render a written decision immediately. In the event respondent Alpert fails to render such a decision as directed, petitioner requests an order for the appointment of a new hearing officer to render an expedited decision on the existing record. Respondent parent affirmed by affidavit dated March 23, 2000 that she did not ask respondent Alpert for any extensions of time after July 8, 1999, and that she assents to the removal of respondent Alpert as impartial hearing officer. Respondent Alpert was personally served with the petition on March 31, 2000 and has not submitted an answer.

Federal and State regulations require that an impartial hearing officer render a decision and mail it toeach of the parties within 45 days after the board of education receives a request for a hearing (34 CFR 300.511[a]; 8 NYCRR "200.5[i][4]). However, a hearing officer may grant specific extensions of time beyond 45 days at the request of either party (34 CFR 300.511[c]; 8 NYCRR "200.5[i][4][i]). 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, 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, 39 Ed Dept Rep 193, Decision No. 14,211; Appeal of a Student with a Disability, 38 id. 386, Decision No. 14,061; Appeal of a Student with a Disability, 38 id. 383, Decision No. 14,060).

In this case, nine months have passed since the hearing concluded and the record was closed. Although respondent Alpert purportedly announced a decision on the record at the conclusion of the hearing, there is no transcript or other evidence in the record substantiating this contention. Even assuming an extension of the 45-day period was properly granted at some point during the hearing, the written hearing decision is substantially overdue. I find that petitioner is entitled to have a written decision issued and that respondent Alpert has failed to fulfill her obligation to provide the decision in a timely manner. I direct respondent Alpert to issue a written 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 Alpert issue within ten days a written decision on the record of the impartial hearing concluded on July 8, 1999 and provide a copy of said decision to my Office of Counsel immediately.

IT IS FURTHER ORDERED that, in the event respondent Alpert fails to comply with this order, petitioner immediately appoint a new hearing officer who shall issue a determination based upon the record herein within fifteen days of appointment.

IT IS FURTHER ORDERED that petitioner shall provide my Office of Counsel with written notification of the new appointment.

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