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Decision No. 14,090

Appeal of a STUDENT WITH A DISABILITY, by her parents, from action of the Board of Education of the West Islip Union Free School District and James Gregory Bailey, as Impartial Hearing Officer, regarding issuance of an impartial hearing decision.

Decision No. 14,090

(March 17, 1999)

Pamela Phillips Tucker, Esq., attorney for petitioner

Guercio & Guercio, attorneys for respondent Board of Education of the West Islip Union Free School District, Thomas M. Volz, Esq., of counsel

MILLS, Commissioner.--Pursuant to "276.8(c) of the Regulations of the Commissioner of Education, I hereby determine that Decision No. 14060, dated December 23, 1998, must be reopened in the interest of justice to grant additional relief.

Petitioners appealed from the failure of an impartial hearing officer (IHO) to render a decision. The appeal was sustained on December 23, 1998 (Appeal of a Student with a Disability, 38 Ed Dept Rep 383).

In the original appeal, petitioners sought a decision in their favor or, in the alternative, immediate appointment of an IHO for the sole purpose of rendering a decision in the hearing. On December 23, 1998, I issued a decision in this case at which time sixteen months had passed since the parties submitted their post-hearing briefs. Even assuming an extension of the forty-five day period was properly granted, the hearing decision was substantially overdue. I found that petitioners were

entitled to have a written decision issued and that respondents failed to fulfill their obligation to provide the decision in a timely manner. I ordered respondent Bailey to issue a decision on the record of the hearing within ten days of the date of my December 23, 1998 decision and to provide a copy of said decision to my Office of Counsel immediately. I ordered respondent board to assure that said decision was issued and to, in the future, take prompt action to enforce the regulatory timeline for issuance of hearing decisions.

To date no decision has been received by my Office of Counsel from respondent Bailey. I have confirmed with my Office of Vocational Educational Services for Individuals with Disabilities that respondent Bailey is no longer certified as an impartial hearing officer.

Because petitioner is entitled to a hearing decision, I hereby order respondent district to appoint within 10 days of the date of this decision a new IHO to review the record of the previous hearing and to render a decision within 30 days of his or her appointment upon the record which was before respondent Bailey at the hearing that was concluded on August 15, 1997.

IT IS ORDERED that respondent district remove respondent Bailey from its rotational list of impartial hearing officers.

IT IS FURTHER ORDERED that respondent district appoint the next available impartial hearing officer from its rotational list within 10 days of this decision to review the record of the hearing concluded on August 15, 1997 and to render a decision within 30 days from the date of his or her appointment.

IT IS FURTHER ORDERED that respondent district submit proof of its appointment of a new IHO, in accordance with this decision, to my Office of Counsel within five days of the date of the appointment.