97-083

        Petitioners appeal from an interim decision by an impartial hearing officer to consolidate a request for a hearing which petitioners made on or about July 30, 1997 with regard to respondent’s alleged failure to provide their child with educational services during the summer of 1997 with an ongoing hearing over which the hearing officer was then presiding. The appeal must be sustained.

        Petitioners’ daughter was classified as autistic in 1984. Since that time, the parties have been embroiled in a dispute about her educational program and her triennial evaluations (Appeal of a Child with a Handicapping Condition, 28 Ed. Dept. Rep. 323; Application of a Child with a Handicapping Condition, Appeal No. 91-19; Application of a Child with a Handicapping Condition, Appeal No. 92-36; Application of the Board of Education of the Ellenville CSD, Appeal No. 94-43; Application of a Child with a Disability, Appeal No. 97-4; Application of a Child with a Disability, Appeal No. 97-23).

        In October, 1995, petitioners requested that an impartial hearing be held because of respondent’s alleged failure to maintain their daughter’s "stay-put" or pendency placement as required by 20 USC 1415 (e)(3)(A), and Section 4404 (4) of the Education Law. That hearing, which began on February 13, 1996, was still in progress on October 2, 1996, when petitioner submitted another request for an impartial hearing. The subject of that hearing request was that respondent had allegedly failed to re-evaluate their daughter within a three-year time period, as required by Federal and State regulations. On October 4, 1996, respondent’s attorney asked the hearing officer to assume jurisdiction over the re-evaluation matter, by consolidating petitioners’ hearing request with their previous hearing request. On October 22, 1996, the hearing officer granted respondent’s request to consolidate the hearings. Petitioners thereafter challenged the hearing officer’s authority to consolidate the hearings. Their appeal was dismissed (Application of a Child with a Disability, Appeal No. 97-4).

        The consolidated hearing with respect to the child’s educational program for the 1995-96 school year and her triennial re-evaluation continued throughout the 1996-97 school year. On April 14, 1997, respondent received another hearing request from petitioners, who challenged the appropriateness of the educational program which respondent had offered to their daughter during the 1996-97 school year. Over petitioners’ objection, the hearing officer granted respondent’s motion to consolidate petitioners’ April 14, 1997 hearing request with their two prior requests. Petitioners did not appeal from the hearing officer’s determination to consolidate that hearing request with their two previous hearing requests.

        By letter dated July 30, 1997, which respondent received on August 4, 1997, petitioners requested that an impartial hearing be held because respondent had allegedly failed to provide their daughter with each of her educational services during the summer of 1997. The board of education’s attorney answered petitioners’ hearing request on August 11, 1997, by asking the hearing officer of the consolidated hearing to assume jurisdiction over petitioners’ latest hearing request. In a letter to petitioners and respondent’s attorney, which was dated August 18, 1997, the hearing officer indicated that he would not rule upon respondent’s consolidation request until petitioners had been afforded an opportunity to respond to the consolidation request. The hearing officer advised petitioners that their response was to be forwarded to him by no later than August 28, 1997. Petitioners reportedly failed to respond to respondent’s motion for an order consolidating their July 30, 1997 hearing request with the other matters which were pending before the hearing officer.

        In his written decision which was dated September 15, 1997, the hearing officer noted that for a number of reasons, respondent had not created an individualized education program (IEP) for the child since the 1990-91 school year. He further noted that the central issue in the parties’ subsequent disputes had involved the implementation of the child’s pendency placement, and he found that petitioners’ latest request was " … a continuation of issues previously raised and contentions previously advanced". The hearing officer also noted that there had been 78 days of hearings, and he expressed his belief that at least some of the testimony that had already been given would also apply to the issues raised in petitioners’ latest hearing request. He granted respondent’s request to consolidate petitioners’ July 30, 1997 hearing request with their three previous hearing requests.

        Petitioners allege that their initial complaint about their child’s educational program for the 1995-96 school year has yet to be resolved by the hearing officer. They object to the additional delay in resolving that matter which would result from the hearing officer’s decision to consolidate their latest hearing request with their previous hearing request. Petitioners also contend that the hearing officer was not authorized to entertain respondent’s motion to consolidate their July 30, 1997 hearing request with their prior hearing requests because Section 4404 (1) of the Education Law required respondent to select a new hearing officer from its rotational list to resolve the issues raised by their most recent request for a hearing. They also assert that those issues involved in their complaint about services during the summer of 1997 have nothing to do with the issues which were before the hearing officer in the consolidated hearing.

        Respondent objects to the petition on the ground that it is premature because no record has been made with regard to any of the issues raised in petitioners’ request for a hearing. The board of education argues that the State Review Officer lacks subject matter jurisdiction to review a non-final impartial hearing officer determination which does not relate to the identification, program, or placement of a child with a disability. It further argues that petitioners are barred by the doctrines of res judicata and collateral estoppel from re-litigating the issue of the hearing officer’s authority to consolidate hearings, by virtue of my decision in Application of a Child with a Disability, Appeal No 97-4.

        With regard to respondent’s affirmative defenses of prematurity and lack of subject jurisdiction, I note that Section 4404 (2) of the Education Law provides, in material part, that:

"A state review officer of the education department shall review and may modify, in such cases and to the extent that the review officer deems necessary, in order to properly effectuate the purposes of this article, any determination of the impartial hearing officer relating to the determination of the nature of a child’s handicapping condition, selection of an appropriate special education program or service and the failure to provide such program and require such board to comply with the provisions of such modification".

        The interim order of an impartial hearing officer is generally not reviewed by a State Review Officer until after the hearing officer has rendered his or her final decision. Sections 276.10 and 279.8 of the Regulations of the Commissioner of Education were recently amended, to be effective January 1, 1998, to provide that the only type of interim hearing officer order which can be immediately appealed to the State Review Officer is a pendency placement determination. In the past, interim appeals were accepted with regard to the validity of hearing officer appointments (see Application of a Child with a Handicapping Condition, Appeal No. 91-46; Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-47; Application of a Child with a Disability, Appeal No. 96-84), as well as appeals involving pendency placements (see Application of a Child with a Disability, Appeal No. 96-83; Application of a Child with a Disability, Appeal No. 96-86; Application of a Child with a Disability, Appeal No. 96-92). Although this appeal could not have been accepted after January 1, 1998 in view of the revised regulations of the Commissioner of Education, I will accept jurisdiction because the issue which petitioners have raised is conceptually similar to the issue of the validity of a hearing officer’s appointment, i.e., whether this hearing officer should conduct the hearing. There does not appear to be any dispute as to the facts, and I find that there is no reason to reject the appeal as premature because no hearing has been held with regard to petitioners’ latest hearing request.

        Although I agree with respondent that petitioners may not re-litigate issues which have been decided in a prior proceeding (Application of a Child with a Disability, Appeal No. 93-40; Application of a Child with a Disability, Appeal No. 95-44; Application of a Child with a Disability, Appeal No. 95-54), I find that petitioners were not precluded by my decision in Application of a Child with a Disability, Appeal No. 97-4 from challenging the hearing officer’s order to consolidate their July 30, 1997 hearing request with their prior hearing requests into a single hearing. In my previous decision, I rejected petitioners’ contention that the board of education was required to appoint a different hearing officer whenever it received a subsequent hearing request. However, I pointed out that there were limits to a hearing officer’s discretionary power to consolidate issues, and noted that a hearing officer may not accept jurisdiction over any and all disputes which may arise at any time in the future. I will therefore consider petitioners’ appeal.

        I share the hearing officer’s concern that some of the testimony which he has heard may well have to be given again on a separate proceeding before a new hearing officer, unless petitioners’ latest hearing request is consolidated with their prior request into a single proceeding before him. However, I am also aware of the tortuous due process proceedings which to date have consumed the parties’ attention, but which have borne little fruit in producing either information about the child’s current educational needs, or the assurance that she is receiving an appropriate educational program. It is time for the proceeding which was initially commenced to determine the appropriateness of the child’s educational program for the 1995-96 school year to be brought to a close. Any additional delay in that proceeding which would result from attempting to resolve the parties’ dispute about the child’s educational program during the summer of 1997 is unacceptable. Therefore, I will sustain petitioners’ appeal.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the interim decision of the hearing officer dated September 15, 1997, by which respondent’s motion to consolidate petitioners’ hearing request of July 30, 1997 was granted is hereby annulled, and

IT IS FURTHER ORDERED that respondent shall promptly appoint another hearing officer for the matters covered by petitioners’ hearing request dated July 30, 1997.