00-049

       Petitioners appeal from an impartial hearing officer's decision which rejected their claim that respondent had failed to provide a free appropriate public education (FAPE) to their son during the 1998-99 school year. The hearing officer denied petitioners' request for reimbursement for the costs they incurred in a unilateral private placement, and for compensatory education. Petitioners also challenge certain interim determinations by the initial hearing officer in this proceeding. The appeal must be sustained in part.

        At the outset, I will address respondent's request that I excuse its delay in answering the petition because its attorney had to fulfill military duty shortly after the petition was served on July 3, 2000. Respondent’s attorney asserts that he did not return from military duty until early August, 2000, and was involved in hearings upon his return. A copy of the answer was served by mail on August 30, 2000. As noted by respondent, the record in this appeal is extensive and the petition and its attachments are voluminous. Petitioners oppose respondent’s request. I note that the decision in this appeal has not been delayed because of respondent's delay. In the interest of fairness, I will excuse respondent's delay and accept its answer.

        Respondent raises the procedural defense of improper service of the petition upon one of its members of his home after 9:00 p.m. (cf. 8 NYCRR 275.8 [a]). The board member asserts in an affidavit that he was served after 9:00 p.m. because he noticed that it was 9:45 p.m. when he telephoned respondent's president shortly after being served. Petitioners deny that the petition was served after 9:00 p.m. They offer the affidavit of their son who served a copy of the petition on the board member. Their son alleges that he rang the board member’s door bell shortly before 9:00 p.m., but that the board member did not immediately accept service. Respondent has not alleged that it promptly advised petitioners of the allegedly defective service so they could correct the error. I find that fairness also dictates that I accept the petition, notwithstanding respondent’s claim of improper service.

        Petitioners have annexed 125 documents to their petition. They ask me to consider the documents, even though approximately 90 of them were not in the record before the two hearing officers in this proceeding. Respondent objects to petitioners’ request. Documentary evidence not presented at a hearing may be considered in an appeal from a hearing officer’s decision if such evidence was unavailable at the time of the hearing, or the record would be incomplete without the evidence (Application of a Child with a Disability, Appeal No. 95-41). I must note that petitioners withdrew from the hearing before it was completed. While not all of the documents are of much weight in helping me to decide the issues which are presented, I will accept all of them.

        Petitioners’ son is 11 years old. The boy had been classified as autistic. His classification is not in dispute in this proceeding. There is no information in the record about the boy’s early schooling. A dispute about his individualized education program (IEP) for the 1995-96 school year was settled by an agreement in which the Board of Education agreed to contract with the Bancroft School for a program of home-based instruction for the boy, using the "Lovaas" technique for 36 hours per week, on a 52-week per year basis. I note that the Lovaas methodology is also known as applied behavioral analysis (ABA). The parties’ agreement was reportedly reflected in a new IEP which was prepared on February 6, 1996. Another IEP was prepared on November 14, 1996 (Exhibit 43 to petition). That IEP indicated that petitioners’ son would continue to be educated in his home, where he was to receive 430 minutes of 1:1 instruction per day provided by the Bancroft School, and 60 minutes of music therapy per week provided by the local BOCES. A new IEP was reportedly prepared for the 1997-98 school year, but the parties could not agree upon its provisions.

        On July 23, 1998, the CSE met to prepare the boy’s IEP for the 1998-99 school year. Representatives of the Bancroft School participated by telephone in the meeting. The boy’s teacher reported that the boy recognized approximately 80 sight words, and that his phonics skills were generally strong. She also reported that the boy’s ability to infer meaning from written text was improving, as was his comprehension of numbers. His ability to do self-help chores had also improved. The boy’s speech/language therapist reported on the boy’s progress, noting that she had focused upon improving the boy’s speech articulation, eye contact, and conversational skills. She indicated that he had difficulty discriminating among speech sounds. Bancroft’s lead consultant recommended that the boy continue to receive 36 hours of specialized instruction per week. The lead consultant indicated that the boy needed to work on generalizing his skills, and become better at engaging with other children. The speech/language therapist recommended that the boy continue to receive 30 minutes of 1:1 speech/language therapy three times per week.

        The CSE accepted the recommendations by the lead consultant and the boy’s speech/language therapist. In doing so, it did not identify any particular methodology to be used, nor did it identify any service providers. The CSE also recommended that the boy receive 60 minutes of 1:1 music therapy twice per week. On the boy’s IEP for the 1998-99 school year, the CSE indicated that the boy continued to need the structure of a home-based educational program, but he also needed a flexible integration plan (Exhibit SD-1). To address that need, the CSE indicated that a from respondent’s Kerhonkson Elementary School would coordinate peer-integrated activities. The IEP also indicated that the boy required the use of a word processor, and computer programming designed to enhance his auditory processing skills. The CSE approved six annual goals with supporting objectives which the boy’s speech/language therapist had prepared. It ultimately adopted a list of 51 annual goals with supporting objectives which the Bancroft lead consultant had prepared.

        In a letter dated August 5, 1998, respondent’s Director of Pupil Personnel Services informed petitioners that the State Education Department had advised respondent that the Bancroft School had not been approved by the Department to provide special education to children with disabilities. The Director indicated that Bancroft would continue to provide services while respondent developed an alternative system to deliver the boy’s educational services (Exhibit 18 to the petition).

        By letter dated August 27, 1998, the boy’s mother indicated that she had not been provided with a copy of her son’s IEP, and asserted that respondent had failed to develop and approve IEPs for her son for the 1997-98 and 1998-99 school years (Exhibit IHO-1). She requested that an impartial hearing be held for the purpose of obtaining compensatory education.

        Respondent initially appointed a hearing officer on September 17, 1998. However, the hearing officer resigned, and a second hearing officer was appointed on October 13, 1998. In a letter dated November 2, 1998, the new hearing officer expressed uncertainty about the nature of the claim which petitioners were making, and she asked their lay advocate to submit a written description of what had occurred between the parties to date (Exhibit 9 to petition). The hearing officer asked respondent’s attorney to submit a brief rebuttal to the advocate’s description. She scheduled the hearing to begin on November 17, 1998. It did not begin then for reasons which are not clear from the record.

        In a letter dated November 25, 1998, petitioners’ advocate submitted a motion to have the hearing officer determine the boy's pendency placement (Exhibit 12 to petition). The advocate asserted that the boy's last agreed upon placement was the at home program provided by the Bancroft School, and he argued that respondent should be required to contract with the Bancroft school to provide the boy’s educational program during the pendency of this proceeding. The Board of Education opposed petitioners’ motion. Its attorney asserted that respondent was ready to implement either the February 6, 1996 or the November 14, 1996 IEP. The hearing officer advised the parties that she would limit the hearing to begin on December 10, 1998 to the question of the boy’s pendency placement.

        At the beginning of the hearing on December 10, 1998, the hearing officer orally ruled that the earlier IEPs were too old to be the meaningful, and that the July 23, 1998 IEP had been agreed upon by the parties. After an off-the-record discussion with the parties’ representatives, the hearing officer stated on the record that she hadn’t made any rulings on the issues. She also stated that the matter would be adjourned by agreement until June 30, 1999, with the proviso that either party could request her involvement in resolving any issue which arose (December 10, 1998 transcript, page 11).

        In a letter dated January 5, 1999, petitioners’ lay advocate asked the hearing officer to reopen the hearing, but did not specify a reason for doing so (Exhibit 50 to petition). The hearing officer requested an explanation for reopening the hearing. By letter dated January 11,1998, petitioners’ advocate asserted that respondent had not properly implemented the IEP which was developed at the July 23, 1998 CSE meeting. (Exhibit 52 to petition). He contended that "transition services" hadn’t been provided to help the boy prepare to attend respondent’s elementary school. The consultant made a number of allegations about changes in the quality and quantity of the boy’s program as a result of respondent’s replacement of Bancroft staff with its own staff, which began to occur in January, 1999. The hearing officer sought to obtain more specific information from the child’s mother, and directed her to confer with the CSE chairperson about addressing the mother’s concerns about the boy’s educational program (Exhibit 53 to petition). She also directed the CSE to meet with the child’s mother, if the mother and chairperson could not resolve the mother’s concerns with regard to respondent’s takeover of the boy’s instructional program.

        In a letter dated January 27, 1999, the boy’s mother informed the CSE chairperson that she was "refusing" special education services for her son which were provided by either respondent or Bancroft, except for related services (Exhibit IHO-33). She indicated that she had made private arrangements for special education services, and would seek reimbursement for those services.

        On January 29, 1999, the CSE met with the child’s mother and her lay advocate in accordance with the hearing officer’s directive. The CSE chairperson indicated that the Bancroft School would serve as respondent’s consultant for programmatic and instructional issues, and would provide direct support to the individuals who implemented the boy’s instructional program. The advocate raised a number of objections, which were not resolved at the meeting (Exhibit IHO-33). He also requested that the CSE consider another placement for the boy, and was advised that another meeting would be held for that purpose.

        The boy’s mother, her advocate, and the boy’s former special education teacher met with the CSE chairperson, a school psychologist and respondent’s out-of-district placement coordinator on February 18, 1999 (Exhibit IHO-34). The process by which an out-of-district placement could be obtained was described. The boy’s mother asserted that her son’s IEP did not accurately reflect his special educational needs. Her advocate requested that the CSE meet to clarify what the boy’s need were on his IEP, and to specify what his current placement was. He indicated that he would ask the CSE to recommend that Bancroft provide the boy’s educational program, and request that respondent ask the State Education Department to approve the private school as a program provider. The CSE chairperson agreed to hold another CSE meeting.

        By letter dated March 28, 1999, the boy’s mother asked the hearing officer to hold a hearing, and issue an interim order requiring respondent to provide certain information to her (Exhibit IHO-23). Her advocate wrote to the hearing officer on April 5, 1999, requesting that the hearing officer issue a "preliminary ruling" that respondent had failed to provide an appropriate educational program to the boy since January, 1999. According to the advocate, the hearing officer could then limit the scope of the hearing to whether the educational services which petitioners had provided to their son since January were appropriate, and whether equitable considerations supported their claim for reimbursement (Exhibit 75 to petition).

        On May 3, 1999, the hearing officer denied both requests without prejudice (IHO Exhibit-4). She pointed out that she had no evidentiary basis for making the requested rulings. She agreed to proceed with a hearing on three issues: respondent’s alleged failure to provide the parents with copies of all documents which they had requested, its alleged failure to give them information about the resources which would be available to their son at its Kerhonkson Elementary School, and its alleged failure to provide a FAPE to the boy since January, 1999.

        The parties and their representatives appeared before the hearing officer on May 20, 1999. Petitioners’ advocate raised additional issues which the hearing officer should decide (Transcript, page 45, Exhibit P-1). They included whether the boy’s July IEP was invalid because a regular education teacher had not participated in the July 23, 1998 CSE meeting, whether the respondent had changed the IEP without notice to petitioners or CSE approval, whether the IEP addressed the boy’s mainstreaming needs, whether respondent had violated the pendency provisions of the IDEA, whether it had failed to provide 36 hours of therapy during December, 1998 and January, 1999, and whether it had failed to provide all of the services which it had agreed to provide in an earlier settlement agreement. Respondent opposed the advocate’s request to broaden the scope of the hearing. The hearing officer denied the advocate’s request. She noted that she had previously determined at the December 10, 1998 hearing that the July IEP, with two minor errors which respondent had agreed to correct, had been agreed upon by the parties. She ruled that petitioners were bound by that determination in this proceeding, and could not challenge the appropriateness of their son’s IEP (Transcript, page 54). The boy’s mother then requested a hearing for "those issues that are not currently before the impartial hearing officer for my case" (IHO Exhibit-5). The hearing officer directed the parents’ advocate to identify the specific issues in writing.

        With regard to the three issues identified by the hearing officer in IHO Exhibit-4, the parties agreed that the issue of providing documents to petitioners had been resolved. It was dismissed without prejudice by the hearing officer (Transcript, page 80). It was further agreed that a CSE, or "less formal" meeting would be held prior to the next scheduled hearing date on June 17, 1999, to cooperatively design a plan to more fully transition the boy into the Kerhonkson Elementary School (Transcript, pages 81-90). While the parties were unable to resolve the last issue, i.e., the alleged failure to provide a FAPE since January, 1999, the parties’ representatives agreed to meet again to attempt to resolve the matter (Transcript, pages 101-102). The hearing officer then adjourned the hearing until June 17, 1999.

        By letter dated May 23, 1999, the hearing officer directed the child’s mother to bring him to the Kerhonkson Elementary School prior to the end of the school year, for the purpose of having him participate in a regular class for at least 15 minutes (IHO Exhibit-18). In the course of her letter, the hearing officer opined that the boy’s mother and her advocate had not participated in good faith in the CSE’s deliberations about the boy’s transition from the instructional program provided by the Bancroft School to the program provided by respondent. She also revealed that she had informally consulted with an expert about the appropriateness of petitioners’ son remaining in a home-based program. On May 31, 1999, the boy’s mother requested that the hearing officer recuse herself from the hearing because of the remarks which the hearing officer made in her May 23 directive (Exhibit 98 to petition). The hearing officer denied the motion to recuse herself on June 16, 1999 (IHO Exhibit-8).

        When the hearing resumed on June 17, 1999, the hearing officer indicated that the sole issue before her at that time was petitioners’ claim that respondent had denied a FAPE to their son since January, 1999. Petitioners’ advocate read a statement on behalf of petitioners, in which he asserted that the hearing officer had declined to make certain rulings which they had requested because there was insufficient evidence in the record, but she had nevertheless expressed opinions or made rulings which were prejudicial to petitioners. He advised the hearing officer that in order to protect themselves, petitioners were "withdrawing our request for an impartial hearing pending a determination by the Commissioner of Education on a complaint we shall submit as to your competence as an Impartial Hearing Officer, and pending a decision from the Northern District Federal Court that any further proceedings, administrative proceedings, would be futile." Transcript, page 128). The advocate and the boy’s mother then left the hearing.

        The hearing officer entered copies of correspondence with the parties into the record, and made a statement about what had transpired during the course of the hearing. She also allowed respondent’s CSE chairperson to testify about a number of the documents which had been entered into evidence. Respondent’s attorney indicated that he intended to submit a motion to the hearing officer for her to appoint a guardian ad litem for the child, and to direct the person so appointed to attend the CSE meeting scheduled for June 24, 1999. The hearing officer stated that she would approve the motion if it were made, upon notice to petitioners.

        The hearing resumed on July 8, 1999. The boy’s mother had advised the hearing officer that she would not be present. Neither she nor her advocate attended the hearing. The hearing officer announced that she had decided to dismiss the parents’ demand for a hearing "in toto with prejudice" (Transcript, page 212). She indicated that she would issue a "formal" decision after she received the transcript for the July 8 hearing. The hearing officer also determined that in the absence of evidence of respondent’s inability to implement the July 23, 1998 IEP, that IEP was the boy’s pendency placement under the IDEA and Article 89 of the Education Law (Transcript, page 220).

        On September 20, 1999, the boy's mother asked the Commissioner of Education to direct the hearing officer to render a written decision (Exhibit 123 to the petition). In a letter dated January 25, 2000, a representative of the State Education Department advised the boy's mother that the hearing officer had not responded to two letters, and had been admonished (Exhibit 124 to the petition). On April 11, 2000, the Board of Education commenced an appeal to the Commissioner of Education to obtain an order compelling the hearing officer to render a written decision. In Appeal of the Board of Education of the Rondout Valley Central School District, 39 Ed. Dept. Rep. ______, Decision No. 14355, dated May 20, 2000, the Commissioner ordered the hearing officer to issue a written decision within ten days. The Commissioner's decision also provided that if the hearing officer did not comply with his order, the Board of Education was to appoint a new hearing officer. The new hearing officer was to review the hearing record and issue a written decision within 15 days after the date of his or her appointment.

        The hearing officer did not comply with the Commissioner's decision. Respondent appointed a new hearing officer, who reviewed the record and rendered his decision on June 12, 2000. The new hearing officer found that the Board of Education had demonstrated that the boy's educational program for the 1998-99 school year was appropriate. He further found that petitioners had withdrawn their son from that educational program less than one month after they had agreed to his placement at a December, 1998 meeting. The hearing officer denied petitioners' request for reimbursement for their expenditures in providing their son's educational program after January, 1999, as well as their request for an award of compensatory education.

        Petitioners contend that the second hearing officer, i.e., the one who conducted the hearing through July 8, 1999, was divested of jurisdiction when they withdrew their request for a hearing at the hearing on June 17, 1999. They ask that I find that any proceeding after that date was a nullity. The Board of Education argues that petitioners' withdrawal of their hearing request was ineffective, and that it was obligated to proceed with the hearing in the absence of a knowing and voluntary withdrawal of the hearing request. Respondent asserts that petitioners’ attempts to have the hearing officer render a written decision after the July, 1999 hearing are inconsistent with their argument that the hearing officer’s jurisdiction was divested on June 17, 1999 when they withdrew their request for a hearing. In view of the hearing officer’s assertion that she retained jurisdiction because it had been conferred by the mutual consent of the parties, I find no inconsistency in petitioners’ attempt to secure a final decision upon which to appeal.

        A child’s parents may withdraw their request for a hearing at any time. If they withdraw their request, the hearing officer appointed to decide the issues raised by the parents’ request must terminate the hearing (Application of a Child with a Handicapping Condition, 29 Ed. Dept. Rep. 138; Application of a Child with a Handicapping Condition, Appeal No. 91-18). However, a hearing officer’s jurisdiction is not terminated if the parents simply walk out of the hearing (Application of a Child with a Disability, Appeal No. 96-75; Application of a Child with a Disability, Appeal No. 97-6). I note that there is no written request by petitioners to withdraw their hearing request in the record. Nevertheless, their advocate’s statement was read into the record at the hearing on June 17, 1999. The advocate’s statement is clear and unequivocal. Petitioners’ position in this appeal is consistent with their advocate’s statement. They are represented by experienced counsel in this appeal. Upon the record before me, I find that petitioners withdrew their request for a hearing at the hearing conducted on June 17, 1999.

        I must point out that there are consequences to the withdrawal of a hearing request. I must also point out that there is insufficient factual evidence in the record before me, because of the abbreviated hearing which was held, to afford a basis for deciding petitioners’ claims on the merits. Although petitioners now ask me to decide various issues, including their son's pendency placement and their claim for reimbursement, I have no legal basis for doing so because those issues have been put to rest by the withdrawal of their request for a hearing. I have considered petitioners’ other contentions, which are without merit and/or beyond my jurisdiction.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer's decision dated June 13, 2000 is hereby annulled.