Education Law - SchoolNET

Special Education Due Process Hearings

In declaratory judgment action, Supreme Court Justice Peter J. Notaro enjoined an Impartial Hearing Officer from asserting jurisdiction over a parent's new hearing request -- filed during still-pending hearing proceedings in response to a prior hearing request -- when the District (a) opposed consolidation of the new request with the old request and (b) the District complied with Education Law 4404(1), Commissioner of Education regulations at 8 N.Y.C.R.R. §§ 200.2(e)(1)(i)&(ii) and 200.5(i)(3)(i)&(ii) and its own policy to appoint a different Hearing Officer pursuant to the Education Law's rotational selection and appointment process. WNY School District v. Jane Doe, parent of J. Doe and Impartial Hearing Officer #1, Slip Opinion, (Sup. Ct. Erie Co., Index No. I2004/3827, May 26, 2004).

The Hearing Officer and the parent had relied upon three decisions of the Office of State Review which, at best, suggested that consolidation, over one party's objection, may be legal [see, Application of a Child with a Disability, Appeal No. 95-51, Application of a Child with a Disability, Appeal No. 91-057 and Application of the Board of Education of the Pawling Central School District, Appeal No. 03-022.

The parent was represented by a not-for-profit corporation, Western New York Family Advocacy for Children's Educational Services, Inc., in the due process hearing.

Supreme Court Justice Notaro, relying on the Education Law and Commissioner's regulations, found that:

"The actions taken by the Impartial Hearing Officer #1 [the hearing officer who attempted to consolidate the new matter before him with the old matter to which he had been promptly appointed] are wholly beyond the grant of power to him. He was not, and has not, been appointed to hearing the March 1, 2004 request and is without power or authority to undertake this hearing."

The lesson for public schools is that where parents file multiple hearing requests, the public school should appoint a new Hearing Officer to hear and determine each new request.