96-045

       Petitioner appeals from a decision of an impartial hearing officer which dismissed petitioner's claim that respondent had failed to provide petitioner's child with the amount of special educational services specified in the child's individualized education program (IEP). The hearing officer also dismissed petitioner's claim that respondent had violated his rights by contacting the child's attending physician at the Crouse-Irving Memorial Hospital, in Syracuse, New York, to ascertain whether or not the child was in the hospital's intensive care unit (ICU) for a particular period of time. While dismissing petitioner's claims, the hearing officer nevertheless retained jurisdiction over any future claims petitioner might assert regarding an alleged failure by respondent to provide the boy with his IEP services. The appeal must be sustained in part.

        Petitioner's son sustained multiple trauma including a severe head injury in an automobile accident in March, 1991. Except for two relatively brief stays in rehabilitation facilities, the child has been hospitalized since his accident. In 1993, the child's physician reported that the child was unable to perform any meaningful movement or activities upon command. In May, 1994, another physician opined that the child had a post-traumatic brain injury with resultant persistent vegetative state. The boy, who is 20 years old, has been classified as a child with a traumatic brain injury. His classification is not in dispute in this proceeding.

        Petitioner has been involved in many due process proceedings with respondent, including nine appeals to the State Review Officer. One result of petitioner's almost continuous requests for impartial hearings has been that his son continues to receive special education services pursuant to an IEP which was prepared in September, 1993, and which is the child's "pendency placement" pursuant to 20 USC 1415 (e)(3)(A) and Section 4404 (4) of the Education Law. Pursuant to that IEP, the child is to receive two hours per day of special education, plus 30 minutes each of speech/language therapy, physical therapy, and occupational therapy five times per week.

        This proceeding commenced with seven written requests by petitioner that impartial hearings be held because of respondent's alleged failure to provide petitioner's son with each of the services which were specified on his "pendency" IEP. In his first request, dated March 21, 1996, petitioner alleged that respondent had failed to provide services to the child on March 13, 1996. In his next request, which was dated March 22, 1996, petitioner alleged that respondent had failed to provide services on at least two occasions during the week of January 28 to February 3, 1996. Petitioner's third request was dated March 25, 1996. He alleged that services had been withheld from his son on five occasions during the week of January 14 through January 20, 1996. In his fourth request, which was dated March 26, 1996, petitioner alleged that services were withheld on two occasions during the week of January 21 through January 27, 1996. Petitioner's fifth request was dated March 27, 1996. In it, he alleged that services were withheld on four occasions during the week of February 25 to March 3, 1996. In his sixth request, which was dated March 28, 1996, petitioner alleged that services were withheld from his son on three occasions during the week of March 3 to March 9, 1996. Petitioner's seventh request was dated March 29, 1996. He alleged that services had been withheld from his child on March 13, 1996. He also alleged that the Medical Director of the Crouse-Irving Memorial Hospital had been improperly contacted by the CSE chairperson, " ... indirect defiance of my clear and written prohibition to do so without my specific written authorization." Petitioner's last allegation concerned a letter dated March 22, 1996, in which the CSE chairperson asked the Medical Director of the Crouse-Irving Memorial Hospital to confirm her understanding that the petitioner's son had been placed in the ICU of the hospital, on March 13, 1996.

        Respondent has designated a school administrator, Ms JoAnne Mitchell, as its representative to contact prospective hearing officers whose names appear on respondent's rotational lists of hearing officers (See Section 4404 [1] of the Education Law). In an affidavit which is included in the record of this proceeding, Ms. Mitchell indicated there were nine names written on respondent's list of hearing officers, and that the person whose name was ninth on the list had served as the hearing officer in the most recent hearing which had been held in the district. Therefore, Ms. Mitchell contacted the person whose name appeared first on the list, but that individual declined to serve in this matter. Ms. Mitchell contacted the next individual on the list, but that individual could not serve as a hearing officer because he was affiliated with the Board of Cooperative Educational Services for Onondaga, Cayuga and Madison Counties, which was the employer of one or more of the child's IEP service providers (Application of a Child with a Disability, Appeal No. 96-2). The next two individuals on the hearing officer list declined to serve as the hearing officer in this proceeding. The fifth individual on respondent's list agreed to be the hearing officer in this proceeding. On March 27, 1995, Ms. Mitchell notified respondent's president, who pursuant to respondent's policy appoints hearing officers in the interim between regularly scheduled meetings of the Board of Education. By letter also dated March 27, 1996, respondent's clerk notified the hearing officer of her appointment as hearing officer. At its next regular meeting on April 9, 1996, respondent ratified the hearing officer's appointment.

        In a letter dated April 18, 1996 to hearing officer respondent's attorney asked the hearing officer to dismiss petitioner's claims on the ground that the legal issues which were involved in those claims had been raised and decided adversely to petitioner, in prior proceedings. The attorney also submitted copies of the daily log sheets by the child's service providers to show when they had provided their respective services to the child during the weeks in question. The hearing officer did not rule upon respondent's motion.

        The hearing in this proceeding was held on April 25, 1996. The hearing officer granted a motion by respondent's attorney to consolidate petitioner's seven hearing requests into one proceeding, as she had the power to do (Application of a Child with a Disability, Appeal No. 95-51). Petitioner asked the hearing officer to recuse herself on the ground that she had rendered a decision in a prior proceeding involving the parties, which was then pending review by the United States District Court for the Northern District of New York. However the hearing officer denied petitioner's request. Petitioner questioned the hearing officer about whether she had any prior discussions or contact with school district employees, other than the telephone conversation with Ms. Mitchell. The hearing officer indicated that she had not had any contact or conversation, except that with Ms. Mitchell about accepting an appointment to be the hearing officer.

        Over petitioner's objection, the hearing officer entered into evidence the affidavit by Ms. Mitchell, as well as an affidavit by the CSE chairperson regarding the services which had been provided to the child during the periods of time in question. She also accepted the service provider daily log sheets. With regard to the daily log sheets, the hearing officer asked petitioner whether he was aware of any facts which would refute the accuracy of the information set forth in those documents. Petitioner acknowledged that he had no reason to doubt the authenticity of the daily log sheets, but stated that he nevertheless wished to question the service providers about the meaning of some of the information which they had written on the daily log sheets. However, that was not the purpose for the hearing. In response to additional questioning by the hearing officer petitioner stated that:

" ... in general I will concede and I will not dispute even though I wasn't there at the time, that the total amount of time may be the total amount required, although in some cases I would question ... I'm questioning them. But I would question and I'm questioning whether or not if the schedule for physical therapy, for example, is between 10:00 AM and noon, why the physical therapist is coming in at 8:00 AM one day, not at all the following day and comes in at 6:00 PM for two sessions the third day. This is not an appropriate means of providing service." (Transcript pages 58 & 59)

        Petitioner conceded that the child's IEP simply indicated the amount of service to be provided to his son each week, and did not specify the times during the day when the services would be provided. With regard to the March 22, 1996 letter by the CSE chairperson to the Medical Director of the Crouse-Irving Memorial Hospital, petitioner indicated to the hearing officer that he did not know whether his son was in the ICU on March 13, 1996, but insisted that the CSE chairperson should not have bypassed him in obtaining information about the child. He contended that the CSE chairperson should have asked him whether his son was in the ICU on March 13, 1996, and that he would provide her with that information.

        After approximately two hours of discussion with petitioner and respondent's attorney, the hearing officer indicated that she found " ... no evidence contrary to anything that the school district has presented here and thus dismissed the seven requests for a hearing" (Transcript page 96). The hearing officer rendered a written decision on May 11, 1996. She noted that petitioner had questioned her about her appointment as the hearing officer, but had not offered any evidence of impropriety regarding her appointment. With regard to the issue of respondent's failure to provide services to petitioner's son on the days in question, the hearing officer found that respondent had acted "reasonably and responsibly in the makeup of services when services were missed." She rejected petitioner's contention that the CSE chairperson's letter to the Medical Director of the Crouse-Irving Memorial Hospital violated the child's confidentiality rights. The hearing officer indicated that she would retain jurisdiction with regard to any future claim by petitioner that respondent had failed to provide his son with the son's IEP services. She reasoned that her retention of jurisdiction would facilitate future hearings being held in a timely manner.

        Petitioner argues that the hearing officer's decision must be overturned because neither Federal or State regulations provide for formal motion practice in impartial hearings. While I agree with petitioner that motion practice is not specifically provided for in either the Federal or State regulations, those regulations do not preclude a hearing officer from ruling upon a motion made by either party in a hearing. Petitioner's reliance upon the decision of the Commissioner of Education in Application of a Child with a Handicapping Condition, 30 Ed. Dept. Rep. 138, is misplaced. In that case, the child's parents had filed a motion for the hearing officer to recuse himself. The Commissioner noted that even though the regulations did not explicitly provide for motion practice, the hearing officer should have nevertheless addressed the parents' motion.

        Petitioner also argues that the hearing officer's determination not to go forward with the hearing deprived petitioner of his right to procedural due process of law. Each party in an impartial hearing has the right to present evidence, and to cross-examine the witnesses who testify at the hearing (34 CFR 300.508 [a][2]; 8 NYCRR 200.5 [c][4]). These are important rights, which may be waived, but there must be clear evidence of a waiver (Application of the Board of Education of the City School District of the City of Binghamton, Appeal No. 91-31). In this instance, there is no evidence that petitioner waived his rights. However, that is not dispositive of the matter. The relevant question is whether there was any disputed factual issues to be resolved.

        Through her questioning of the parties, the hearing officer sought to ascertain what, if any, issues of fact were in dispute. The service provider daily log sheets which respondent introduced into evidence were clearly admissible as business records (Child Suspected of Having a Disability, Appeal No. 93-18; Application of a Child with a Disability, Appeal No. 95-20). Each provider, i.e., the child's teacher, the speech/language therapist, the physical therapist, and the occupational therapist filled out a separate log sheet for each day on which the provider had offered service to the child. The format of the log sheets included a space to indicate whether the service was being provided as a makeup for a missed day of service, and the date of the missed service.

        Petitioner's responses to the hearing officer's questions clearly indicated that he did not dispute the service providers' descriptions of the dates and times of their services to his son. As noted above, he did not dispute the fact that the services which had not been provided in accordance with the usual daily schedules of the service providers had been made up, or that the total amount of services which his son had received was consistent with the provisions of his pendency IEP. In essence, petitioner's dispute with respondent related to occasional changes in the scheduling of the special education services which petitioner's son received. Petitioner has raised the same legal issue, i.e., whether respondent can, within reasonable limits, make such scheduling changes, in at least two prior proceedings. In Application of a Child with a Disability, Appeal No. 95-54, and Application of a Child with a Disability, Appeal No. 96-26, I held that respondent could make such scheduling changes without violating the child's IEP.

        Although the portion of the log sheets indicating make up services was not always filled in, it is possible to confirm that missed services were made up either on other days when services would not usually be provided, e.g., Sundays, or by providing extra services on school days. With regard to the week of January 14-20, 1996, I note that January 15, 1996 was a legal holiday (Martin Luther King Day), on which no services were required to be provided. All services were provided that week, except for one session of physical therapy. The CSE chairperson indicated in her affidavit that the schools were closed early because of inclement weather on the day when physical therapy was not provided. The log sheets reveal that the physical therapist usually provided therapy in the afternoon. During the week of January 21-27, 1996, all services were provided, except for one session each of speech/language therapy and occupational therapy. Both of those services were made up on January 28, 1996. During the week of January 28 - February 3, 1996, all services were provided in the requisite amounts, although the special education teacher, speech/language therapist and occupational therapist each provided extra services during that week to make up for missed days of service. The child's speech/language therapist missed one day of service during the week of February 25 - March 2, 1996, but made up that time on March 11 and 12, 1996. All other services were provided during the week in question. During the week of March 3-9, 1996, the child's special education teacher, speech/language teacher, and physical therapist each missed sessions, but made them up shortly thereafter. I concur with the hearing officer's finding that all missed services were promptly made up.

        With regard to March 13, 1996, the child's speech/language teacher noted that the child was in the ICU, when she arrived at 7:30 in the morning. His teacher noted that the child was still in the ICU at 1:45 in the afternoon. His physical therapist reported that the child had returned from the ICU by the time she arrived at 3:15 p.m. She provided service to him at that time. There is no report by the occupational therapist on March 13, 1996. In Application of a Child with a Disability, Appeal No. 96-26, I rejected petitioner's contention that respondent was obligated to serve the child when he was in the ICU on a previous occasion, because of the risk to the child's health. In this instance, the child was reportedly in the ICU because of seizure activity. I find that there is no merit to petitioner's contention that respondent wrongfully withheld services from the child on March 13, 1996.

        The other issue which petitioner raised in the hearing was whether the CSE chairperson's letter to the Medical Director of the Crouse-Irving Memorial Hospital violated his son's rights. While no testimony was taken about this matter, there was no dispute about the fact that the CSE chairperson contacted the Medical Director. The record reveals that by letter dated March 15, 1996, the CSE chairperson asked the physician who had been the child's attending physician whether the child had been in the Intensive Care Unit on March 13, 1996. In a letter to the CSE chairperson, dated March 18, 1996, the physician indicated that he was no longer the child's attending physician, and suggested that the chairperson direct her inquiry to the Medical Director. The CSE chairperson then wrote to the Medical Director on March 22, 1996, asking him to confirm the fact that the child had been in the ICU on March 13, 1996. The record reveals that the Medical Director responded to the CSE chairperson, in a letter dated April 8, 1996. He indicated that the child " ... did make a stop in the ICU in March. It was less than a day and he returned to the floor." The legal issue which petitioner sought to raise was whether the CSE chairperson was required to obtain petitioner's permission before contacting the child's physician. In Application of a Child with a Disability, Appeal No. 95-54, I held that there was no such requirement, and that the CSE chairperson could contact this child's physician. I find that there is no merit to petitioner's contention in this proceeding that the CSE chairperson could not contact the Medical Director of the Crouse-Irving Memorial Hospital.

        The last issue to be considered is petitioner's contention that the hearing officer exceeded her jurisdiction by retaining jurisdiction over any future claim by petitioner alleging a failure to provide services to his son. A hearing officer is appointed in response to a specific request for a hearing. When a request for a hearing is received, a board of education must appoint a hearing officer from its rotational list of hearing officers, unless the parties have agreed that a hearing officer should retain jurisdiction to ensure the equitable implementation of his or her decision in a prior proceeding. There was no agreement of the parties in this matter, nor was there anything left to be done pursuant to the hearing officer's decision. Therefore, I find that the hearing officer exceeded her jurisdiction by retaining jurisdiction.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the portion of the hearing officer's decision retaining jurisdiction with regard to future proceedings is hereby annulled.