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Decision No. 14,385

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

Decision No. 14,385

(June 12, 2000)

Shaw & Perelson, LLP, attorneys for petitioner, Lisa S. Rusk, Esq., of counsel

Family Advocates, Inc., attorneys for respondent parent of a student with a disability, RosaLee Charpentier, Esq., of counsel

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

On September 18, 1998, petitioner received a request for an impartial hearing on behalf of a student with a disability, who is named through her parent as a respondent herein ("respondent parent"). On October 7, 1998, petitioner appointed respondent Dee Estelle Alpert to serve as impartial hearing officer. The hearing was conducted over several days and concluded on August 9, 1999. Closing briefs were submitted on September 3, 1999 and respondent Alpert indicated on the record that a decision would be issued within two weeks after receipt of the closing briefs. Since that time, petitioner has made numerous telephone 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 May 5, 2000 seeking an order directing respondent Alpert to render a written decision immediately. Respondent Alpert was served with the petition on May 5, 2000 and has not submitted an answer.

Respondent parent contends, interalia, that a parent of a disabled child is not a proper respondent in an appeal brought under Education Law "310 and seeks dismissal of the petition. As no relief is requested and no claim is stated against her, the appeal must be dismissed against respondent parent.

Federal and State regulations require that an impartial hearing officer render a decision and mail it to each 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 closing briefs were submitted. 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 TO THE EXTENT INDICATED.

IT IS ORDERED that respondent Alpert issue within ten days a written decision on the record of the impartial hearing concluded on August 9, 1999 and provide a copy of said decision to my Office of Counsel immediately.

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