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Decision No. 14,335

Appeal of the BOARD OF EDUCATION OF THE WAPPINGERS CENTRAL SCHOOL DISTRICT from an interim determination of an impartial hearing officer regarding recusal.

Decision No. 14,335

(April 12, 2000)

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

Jeffrey S. Battistoni, Esq., attorney for respondent parent

MILLS, Commissioner.--Petitioner, Wappingers Central School District, seeks a determination that a certain hearing officer should be recused due to his lack of impartiality. The appeal must be dismissed.

On November 20, 1998, C.C., the parent of A.C., a student with a disability, requested an impartial hearing to review matters related to A.C.’s individualized education program ("IEP"). Upon receiving the request for the impartial hearing, the district contacted the next hearing officer on the rotational list of impartial hearing officers ("IHO"). Seth Krauss, the next hearing officer on the list, was offered and accepted the appointment. On November 30, 1998, petitioner’s counsel wrote to Mr. Krauss requesting that he decline the appointment due to his inability to be impartial. Mr. Krauss refused to recuse himself from the hearing, and set the first hearing date for December 21, 1998.

At the December 21st hearing, petitioner’s counsel made a formal application for recusal. The basis for the application was a prior fee dispute between petitioner and Mr. Krauss in another, unrelated impartial hearing. Mr. Krauss refused to recuse himself. This appeal ensued. Petitioner’s request for interim relief was denied on January 27, 1999.

Petitioner contends that due to the prior fee dispute, Mr. Krauss cannot be impartial. Therefore, petitioner seeks an order recusing Mr. Krauss as the hearing officer in the hearing concerning A.C. Petitioner also claims that there is a second IHO already appointed to hear another claim involving A.C. Petitioner maintains that the second IHO is acceptable to both parties and, therefore, the two hearings should be consolidated before her.

Respondent parent contends that she has no reason to question the impartiality of Mr. Krauss and objects to petitioner’s request for recusal.

The appeal must be dismissed for lack of jurisdiction. Effective January 1, 1998, "276.10 of the Commissioner’s regulations was amended to provide:

Appeals from an impartial hearing officer’s ruling, decision or refusal to decide an issue prior to or during a hearing shall not be permitted, with the exception of a pendency determination made pursuant to subdivision 4 of section 4404 of the Education Law, which may be reviewed by a State review officer. However, in an appeal to the State review officer from a final determination of an impartial hearing officer, a party may seek review of any interim ruling, decision or refusal to decide an issue.

Thus, "276.10 no longer permits an appeal to the Commissioner from an IHO’s ruling, decision or refusal to decide an issue prior to or during a hearing (8 NYCRR "276.10[b]; Appeal of a Student with a Disability, 37 Ed Dept Rep 313, Decision No. 13,867). Accordingly, I have no jurisdiction to adjudicate this matter.