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Decision No. 14,450

Appeal of JOHN FARAGO from action of the Board of Education of the City School District of the City of New York regarding procedures for impartial hearings.

Decision No. 14,450

(August 31, 2000)

Michael D. Hess, Corporation Counsel, attorney for respondent, Carolyn Wolpert, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the City School District of the City of New York ("respondent") to relocate the sites for impartial hearings under the Individuals with Disabilities Education Act ("IDEA") and Section 504 of the Rehabilitation Act. The appeal must be dismissed.

Petitioner is a certified impartial hearing officer ("IHO") who is on the list from which respondent appoints IHOs to preside over impartial hearings under the IDEA and Section 504. A memorandum dated March 14, 2000 from the Chancellor to superintendents of the community school districts announced that the location of these hearings would be changed from respondent’s Office of Impartial Hearings at 110 Livingston Street, Brooklyn, to the offices of the Committee on Special Education ("CSE") or the Hearing Handicapped/Visually Impaired ("HHVI") Unit for the community district in which the child is served:

"Upon receipt of a request for a hearing, the Office of Impartial Hearings will contact the CSE Chairperson or HHVI administrator to schedule a timely hearing. It is the district’s responsibility to ensure that an appropriate room is available on the day scheduled. It is the responsibility of the Office of Impartial Hearings to assign hearing officers and transcribers, promulgate decisions and notify parents as per current policy."

IHOs were notified of the change by memorandum dated March 17, 2000, from the interim Chief Administrator of the Office of Impartial Hearings. A second memorandum dated that same day asked IHOs to identify by March 23, 2000 the community school districts in which they are and are not available and willing to serve.

Petitioner commenced this appeal on March 30, 2000 seeking an order rescinding respondent’s decision and an interim order directing respondent to conduct hearings, as it had done, through a centralized rotation and in a centralized location at or near the impartial hearing office. Petitioner’s request for an interim order was denied on April 19, 2000.

Petitioner states that he is not opposed to decentralizing special education hearings in New York City but contends that respondent’s decision was made without legal authority because only the IHOs, the State Education Department, or the State Legislature may regulate the time, place, and manner of impartial hearings. Petitioner also contends that respondent’s decision lacks impartiality and impairs his capacity to be and appear impartial because hearings are supposed to be conducted in a manner and place reasonably calculated to serve the convenience of the parent and child. Petitioner contends further that respondent’s decision was made without adequate planning and will result in the use of multiple separate geographically-based rotation lists of IHOs that violates state and federal law and changes the terms and conditions of petitioner’s appointment.

Respondent defends its decision as lawful and designed to accommodate the convenience of parents and children. Respondent denies using multiple IHO lists and asserts that IHOs continue to be appointed by the Office of Impartial Hearings from one list. Respondent contends that petitioner lacks standing because he has not suffered personal damage or injury to civil, personal or property rights, as a result of respondent’s decision and he cannot assert the rights of parents, children and others who are not parties to this appeal. Respondent also contends that decisions concerning utilization of school building are within its discretion and petitioner has failed to show that its decision was arbitrary, capricious or contrary to sound educational policy.

An individual may not maintain an appeal pursuant to Education Law "310 unless aggrieved in the sense that he or she has suffered personal damage or injury to her or his civil, personal or property rights (Appeal of Morris, et al., 38 Ed Dept Rep 427, Decision No. 14,066; Appeal of Garwood, 35 id. 297, Decision No. 13,547). In this appeal, petitioner asserts that respondent’s decision will harm him in his capacity as an IHO, but the harm he describes is speculative and insufficient to render him aggrieved. Although petitioner may be inconvenienced by the need to travel to various sites to hold hearings, he has the option to decline such appointments and, ultimately, such inconvenience does not amount to an injury to any civil, personal or property right. While petitioner argues that changing the location of these hearings will diminish their impartiality, he identifies no law or regulation that creates an entitlement for himself, rather than for the parties to such impartial hearings, i.e., students with disabilities, their parents, and school districts. To the extent petitioner attempts to seek relief on behalf of others, he lacks standing (Appeal of Ogbunugafor, 38 Ed Dept Rep 105, Decision No. 13,994). The appeal must, therefore, be dismissed for lack of standing.

In view of the foregoing disposition, I need not address the parties’ remaining contentions.