01-037

        Petitioners appeal from an impartial hearing officer's decision finding that respondent's Committee on Special Education (CSE) had prepared an appropriate individualized education program (IEP) for their son for the 1998-99 school year. The hearing officer also found that respondent had provided all of the educational services to the student that his mother would agree to receive, and she dismissed petitioner's request for compensatory education. The appeal must be sustained, but not for the reasons given by petitioners.

        Petitioners' twelve-year old son has been classified as autistic. His classification is not in dispute. A disagreement between the parties about the student's IEP for the 1995-96 school year was resolved by an agreement that provided that he would receive instruction using the applied behavioral analysis (ABA) technique in his home from a program identified as Bancroft CARES (Bancroft). In addition, the student received certain related services at his home from staff of the local BOCES. This arrangement continued through the 1997-98 school year.

        At a meeting held on July 23, 1998, the CSE recommended that the student receive two hours of 1:1 special education at home 12 times per week, 60 minutes of 1:1 music therapy at home twice per week, and 30 minutes of 1:1 speech/language therapy at home three times per week during the 1998-99 school year (Parents’ Exhibit 22). The IEP that the CSE prepared for the student did not identify any service provider or specify any instructional methodology. It did indicate that he required the use of a computer and software to enhance his auditory processing and speed of auditory information.

        In the summer of 1998, the State Education Department advised the Board of Education that Bancroft had not been approved by the Department to provide instruction to children with disabilities. Respondent attempted to employ trained personnel, including some of the student's then current service providers, to assume the duties Bancroft had performed for respondent. In August 1998 the student's mother requested an impartial hearing to challenge her son's IEPs for the 1997-98 and 1998-99 school years and to obtain compensatory education for him.

        An impartial hearing officer who had been appointed on September 17, 1998 resigned, and a second hearing officer was appointed on October 13, 1998. The new hearing officer sought a clarification of the issues from the parties, and scheduled the hearing to begin on November 17, 1998. The hearing did not in fact begin until December 10, 1998, when the hearing officer initially made an oral determination about the student's pendency placement. However, she subsequently stated that she had not made any rulings upon the issues. The hearing officer also indicated that the hearing would be adjourned by agreement of the parties until June 30, 1999, but that either party could request her involvement in resolving any issue which arose.

        As is detailed more fully in a prior decision involving this matter, Application of a Child with a Disability, Appeal No. 00-049, petitioners' advocate sought to reopen the hearing for unspecified reasons in January 1999. The hearing officer requested more information about the matter from the advocate and the student's mother, and directed the CSE to meet with the mother in an attempt to resolve the matter. The CSE met with the mother and her advocate on January 29, 1999. However, not all of the advocate's demands were satisfied.

        On March 28, 1999, the mother asked the hearing officer to hold a hearing and issue an interim order requiring respondent to provide certain information. Her advocate also asked the hearing officer to issue a "preliminary ruling" that respondent had failed to provide an appropriate educational program since January 1999. On May 3, 1999, the hearing officer denied both requests because there was no evidentiary basis for issuing the requested rulings. The hearing officer agreed to proceed with the hearing on three issues, including those the parent and her advocate had raised.

        When the parties appeared before the hearing officer on May 20, 1999, petitioners' advocate sought to inject a number of other issues into the proceeding. The Board of Education opposed the attempt to broaden the scope of the hearing. The hearing officer denied the advocate's request. The student's mother then requested a hearing with regard to those issues that were not then before the hearing officer. The hearing officer directed the parents’ advocate to specify the issues in writing.

        In a letter dated May 23, 1999, directing the student's mother to bring her son to respondent's elementary school to allow him to briefly participate in a regular education class, the hearing officer opined that the mother and her advocate had not participated in good faith in certain deliberations by the CSE. On May 31, 1999, the student's mother asked the hearing officer to recuse herself because of the opinion the hearing officer had expressed in her May 23 letter. The hearing officer declined to recuse herself on June 16, 1999.

        The hearing resumed on June 17, 1999. The parents' advocate read a statement into the record on the parents' behalf. He asserted that the hearing officer had declined to make certain rulings that the parents had requested because of insufficient evidence, yet she had also expressed opinions or made rulings which were prejudicial to the parents. The advocate then advised the hearing officer that the parents, to protect themselves, were withdrawing their request for an impartial hearing pending determination by the Commissioner of Education of a complaint which the parents intended to make against the hearing officer, and pending a decision by the U.S. District Court for the Northern District of New York, in an action petitioners intended to file, and that any further administrative proceeding would be futile (June 17, 1999 Transcript, p. 128). The advocate and the mother then walked out of the hearing.

        The hearing continued on June 17, 1999 and July 8, 1999. The student's parent had advised the hearing officer that she would not appear. The hearing officer indicated on the record that she would write a decision dismissing the parents' case "in toto with prejudice" after receiving the hearing transcript. However, the hearing officer failed to render a written decision, even after the Board of Education had obtained an order by the Commissioner of Education directing the hearing officer to issue a decision within ten days (Appeal of the Board of Education of the Rondout Valley Central School District, 39 Ed. Dept. Rep. 707).

        Pursuant to the Commissioner's decision, the Board of Education appointed a new hearing officer to review the hearing record and issue a decision. The new hearing officer rendered his decision on June 12, 2000. He found that the Board of Education had provided an appropriate educational program to petitioners' son during the 1998-99 school year.

        Petitioners appealed from the hearing officer's decision. They contended that the hearing officer lacked jurisdiction to rule upon their complaint about their son's educational program for the 1998-99 school year because they had withdrawn their complaint at the hearing on June 17, 1999. In sustaining their appeal on that ground, I pointed out that there were consequences to the withdrawal of a hearing request. Petitioners' request for rulings upon various issues including their son's pendency placement and their claim for reimbursement was denied because those issues had been put to rest by petitioners' withdrawal of their request for a hearing (Application of a Child with a Disability, Appeal No. 00-049). My decision was rendered on September 22, 2000.

        On August 28, 2000, the student's mother requested an impartial hearing to review the school district's alleged failure to conduct certain evaluations and to prepare an appropriate IEP for the 2000-2001 school year (IHO Exhibit 1). On September 26, 2000, the mother requested another hearing to review her complaints about the 1998-99 school year, including the manner in which the hearing had been conducted in the prior proceeding (IHO Exhibit 2). On October 6, 2000, respondent's attorney asked the hearing officer who had been appointed to hear the 2000-2001 matter to consolidate the mother's two hearing requests into a single proceeding.

        Petitioners’ advocate advised the hearing officer that the 2000-2001 matter was no longer before her because of the delay in commencing the hearing with regard to that matter (IHO Exhibit 3). The advocate reiterated that position when the hearing began on October 16, 2000, but he indicated that petitioners had no objection to the hearing officer assuming jurisdiction over their claims for the 1998-99 school year (Transcript p. 7).

        The Board of Education’s attorney moved to dismiss petitioners’ claims with respect to the 1998-99 school year on the grounds that they were no longer viable because petitioners had withdrawn their hearing request in June 1999, and petitioners could not reassert the same claims before another hearing officer in a new proceeding. Petitioners’ advocate opposed the motion, arguing that the withdrawal of the hearing request in the prior proceeding was not absolute, but only conditional pending their attempts to file a complaint against the hearing officer (Transcript p. 23). Over the petitioners’ objection, the hearing officer accepted the record from the prior proceeding which the Board of Education submitted in support of its motion. The hearing officer reserved decision on the Board of Education’s motion to dismiss.

        Pending her determination of the motion, the hearing officer allowed petitioners to present their case at hearings held on November 1, 6, and 29, 2000. In a memorandum dated December 11, 2000, the hearing officer indicated that she was concerned about petitioners ending the prior proceeding because of their dissatisfaction with the interim determinations by the hearing officer in that proceeding and then initiating a new proceeding to address the same issues as in the prior proceeding. However, she decided that it was "premature to make a steadfast ruling" on the Board of Education’s motion to dismiss petitioners’ claims with respect to the 1998-99 school year (IHO Exhibit 17). She reached the same conclusion with regard to the Board of Education’s motion to dismiss on the grounds that petitioners could not obtain an award of reimbursement because of petitioners’ alleged misconduct as reportedly determined by the hearing officer in the first proceeding.

        The hearing continued on December 21, 2000, and concluded on January 18, 2001. The student’s mother was the sole witness to testify. In support of their position, petitioners introduced approximately 140 exhibits. Respondent relied upon the record before the hearing officer in the prior proceeding.

        The hearing officer rendered her decision in this proceeding on March 29, 2001. The hearing officer found, as had the hearing officer in the prior proceeding, that the IEP which respondent’s CSE had prepared for the student at its July 23, 1998 annual review was appropriate for the student during the 1998-99 school year, and it reflected the student’s pendency placement. She further found that respondent had made "all efforts" to make a smooth transition from the program provided by Bancroft to a district operated program for the student, and that respondent’s efforts had been hampered by petitioners’ actions. The hearing officer denied petitioners’ request for an award of compensatory education for their son, and dismissed their claims with respect to the 1998-99 school year.

        Petitioners contend that the hearing officer erred by allowing the Board of Education to introduce the transcripts and evidence from the prior proceeding into evidence. They also assert that she failed to advise them of their right to redirect examination of a witness, and unfairly refused to allow the student’s mother to finish presenting her case. Petitioners argue that the hearing officer should not in any way have relied upon the interim decisions of the hearing officer who was ultimately replaced in the prior proceeding because they discontinued that proceeding. They contend that the record shows that respondent failed to provide their son with an appropriate education during the 1998-99 school year, and they request an award of compensatory education for five years.

        Respondent argues that petitioners are collaterally estopped from relitigating the issues that were decided by the interim decisions of the hearing officer in the prior proceeding. It asserts that an interim determination by the hearing officer on May 23, 1999 in the former proceeding found that the student’s IEP for the 1998-99 school year was appropriate. Respondent contends that the hearing officer was not divested of jurisdiction until petitioners withdrew their hearing request on June 17, 1999, almost one month after the interim decision had been made.

        The central issue in this appeal is whether petitioners may assert their claims with regard to the 1998-99 school year in the present proceeding, having withdrawn their request for a hearing on the same claims in the prior proceeding. Federal and state law clearly accord the parents of a student with a disability the right to challenge at an impartial hearing the appropriateness of the educational program which the school district is providing, or has offered to provide, to the student (20 USC 1415 § 1415[f]; New York State Education Law § 4404[1]).

        Petitioners were afforded the opportunity to challenge the appropriateness of their son’s educational program for the 1998-99 school year during that school year. They did so, but chose to withdraw their hearing request in June 1999 for the express purpose of avoiding a final decision by the hearing officer. Although that hearing officer ultimately failed to write a final decision, it must be noted that petitioners had withdrawn their hearing request before the hearing was concluded. Petitioners have raised the argument that the hearing officer in question was biased against them. However, I must point out that claims of bias or prejudice should be asserted in an appeal from a hearing officer’s final decision. Hearing officer decisions have been annulled on appeal for either actual bias or the appearance of bias (see e.g., Application of a Child with a Handicapping Condition , Appeal No. 91-10), and for denying a parent the right to present his case (see e.g., Application of a Child with a Handicapping Condition, Appeal No. 92-38).

        The due process procedure set forth in federal and state laws for the education of children with disabilities is intended to provide an inexpensive and expeditious method by which a parent can obtain review by an impartial decision maker of a CSE's action or failure to act. Prompt resort to the due process procedure must be made so that any mistake or omission in providing a free appropriate public education can be remedied (Matter of Northeast Central School District v. Sobol, 79 NY 2d 598 [1992]; Bernardsville Board of Education v. J.H., 42 F. 3d 149 [3d Cir., 1994]). I find that allowing petitioners to pursue their claims with regard to the 1998-99 school year in a new proceeding before a different hearing officer would be to sanction "judge shopping", and that it is inconsistent with the purpose of providing an inexpensive and expeditious means of reviewing a student's educational program. It is now two years after the conclusion of the 1998-99 school year. Despite a voluminous record in this appeal, that record consists largely of procedural disputes between the parties. It is time for this matter to be laid to rest. As I noted in my previous decision involving the matter, there are consequences to petitioners' withdrawal of their initial hearing request at the hearing on June 17, 1999. I find that petitioners are barred from raising the claims for which that request was made, or which could have been made, in a subsequent due process proceeding.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the hearing officer's decision is hereby annulled.