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Decision No. 13,868

Appeal of a STUDENT WITH A DISABILITY, by his parents, from action of the Board of Education of the Rondout Valley Central School District regarding appointment of an impartial hearing officer.

Decision No. 13,868

(February 13, 1998)

Shaw & Perelson, LLP., Esqs., attorneys for respondent, David S. Shaw and Lisa S. Rusk, Esqs., of counsel

MILLS, Commissioner.--Petitioners seek a determination that the hearing officer appointed by the Board of Education of the Rondout Valley Central School District ("respondent") to preside over an impartial hearing concerning their son is unqualified because he was appointed from an improperly constituted list. The appeal must be dismissed.

Petitioners are the parents of a student who is classified by respondent's committee on special education ("CSE") as having a disability. Petitioners requested an impartial hearing concerning their son and an impartial hearing officer ("IHO") was appointed at a meeting of respondent board on December 11, 1996 from a list of certified IHO's adopted at its August 28, 1996 meeting. By letter dated December 6, 1996, the IHO informed petitioners of his appointment, their rights with respect to the hearing, and the scheduled hearing date of January 16, 1997.

When the hearing convened on February 5, 1997, respondent introduced the minutes of its August 28 and December 11, 1997 meetings confirming the IHO's appointment and the list from which he was appointed. Petitioners' advocate objected to the IHO's appointment, arguing that the list from which he was appointed did not include all available hearing officers, consistent with a State Education Department memorandum dated July 1996 ("July memo"). Respondent's counsel responded that its list is comprised of those hearing officers who are willing to serve in the district and confirmed that the IHO in this instance was properly selected on a rotational basis as the next available hearing officer on the district's list consistent with the Department's July memo. Respondent's counsel stated that the district had not received the Department's July memo until August 26, 1996, that no effective date was referenced therein, and that its appointment was valid because the IHO is certified and included on the list contained in the July memo. The IHO overruled petitioners' objection and proceeded with the hearing. Petitioner commenced this appeal on April 7, 1997.

Petitioners contend that the IHO's appointment should be nullified because the list from which he was appointed was improperly constituted, consisting of only four names. Petitioners argue that respondent's list should consist of all 34 certified IHO's identified in the Department's July memo as available to serve in Ulster County. Respondent contends that the petition should be dismissed as untimely. Respondent also affirmatively asserts that the appointment of the IHO is legally sufficient because its list was properly adopted, contained only certified IHOs, and was used in a rotational manner.

An appeal to the Commissioner of Education must be commenced within 30 days from the making of the decision or the performance of the act complained of unless excused by the Commissioner for good cause shown in the petition (8 NYCRR 275.16; Appeal of Turner, 35 Ed Dept Rep 369; Appeal of McCall, 35 id. 38). This appeal was commenced on April 7, 1997, more than 30 days after respondent's meeting of December 11, 1996 approving appointment of the IHO. Petitioners argue that the delay should be excused because they were not apprised of the district's appointment list until the hearing convened on February 5, 1997 and served a petition within 30 days of that date which was returned by the Commissioner as improperly filed on March 21, 1997. Petitioners state that the petition served on April 7, 1997 commencing this appeal is different from their first attempt because petitioners now appeal from respondent's appointment of the IHO and not from the IHO's refusal to recuse himself. I do not find either argument persuasive. Petitioners could have obtained respondent's list of IHO's at any time and therefore could have filed their petition within 30 days of the December 11, 1997 appointment of the IHO. Moreover, neither petition was served within the 30-day time limit of the IHO's appointment. Therefore, the appeal must be dismissed as untimely.

To the extent petitioners complain of respondent's alleged systemic noncompliance with pertinent laws and regulations, they are reminded that general policy issues affecting students with disabilities may be directed to the State Education Department's Office of Special Education Policy and Quality Assurance. Should petitioners appeal the final determination of the IHO, they may preserve their objection to his appointment to raise therein.