The State Education Department
State Review Officer

No. 98-52

Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of New York

Appearances:
Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Lisa Grumet, Esq., of counsel

 

DECISION

        Petitioner appeals from the determination of an impartial hearing officer that a sufficient basis existed for respondent's committee on special education (CSE) to evaluate petitioner's son, without petitioner's consent, in order to ascertain whether the child has an educational disability for which he should receive special education services. The appeal must be dismissed as untimely.

        The child was seven years old, and had just completed the second grade in a regular education class at respondent's P.S. 5 at the time of the hearing in this proceeding. On April 28, 1997, the child's second grade teacher referred him to the CSE because the boy had reportedly exhibited continuous emotional outbursts which interfered with his academic progress, and because he allegedly presented a health and safety danger to himself and others. Petitioner refused to consent to the evaluation of her son. Pursuant to Federal and State regulations, parental consent must be obtained before a preplacement evaluation is conducted (34 CFR [b][1][i]; 8 NYCRR 200.5 [a][1]). The principal of P.S. 5 requested an impartial hearing seeking permission to evaluate the child without parental consent, as provided for in 8 NYCRR 200.4 (a)(8). Petitioner attended the hearing which was held on July 3, 1997. The hearing officer rendered his decision on August 5, 1997, ordering a complete evaluation of the child.

        On August 29, 1997, the petitioner served a notice of intention to seek review upon respondent. However, she did not attempt to serve a petition upon respondent until August 28, 1998, which was more than one year after the hearing officer's decision. State regulation requires that a parent seeking review of a hearing officer's decision serve a notice to seek review upon the board of education within thirty days after receipt of the decision sought to be reviewed, and to serve the petition within forty days after receipt of the hearing officer's decision (8 NYCRR 279.2[b]).

        In an affidavit attached to respondent's answer, the CSE chairperson explained that she made a number of attempts to ascertain the status of petitioner's appeal. In May, 1998, she was advised by the Office of Legal Services at the New York City Board of Education that the appeal had not been perfected. The CSE chairperson, in accordance with the hearing officer's order, arranged for the child to be evaluated. The evaluation was conducted on various dates in June, 1998. At the CSE meeting on June 26, 1998, the CSE recommended that the child be classified as emotionally disturbed, and that he be placed in respondent's Modified Instructional Services-II program.

        On August 28, 1998, petitioner attempted to serve the petition upon respondent. However, the papers were insufficient, and proper service wasn't accomplished until September 14, 1998. Petitioner raised several issues in her petition including objecting to the placement recommended by the CSE at its June 26, 1998 meeting.

        Respondent argues that the appeal is untimely. Though petitioner's notice of intention to seek review was served in a timely manner, her petition was not properly served upon respondent until September 14, 1998, more than a full year later. I find that petitioner's failure to file her petition for over one year is unacceptable. Article 89 of the Education Law, and its Federal counterpart, the Individuals with Disabilities Education Act, provide a due process mechanism to promptly resolve the disputes which arise between parents and school districts, so that children will receive appropriate special education services. Petitioner's substantial delay is inconsistent with the purposes of the Federal and State statutes.

        I note that the petition includes allegations challenging the June 26, 1998 CSE meeting and the recommendations made at that meeting on both procedural and substantive grounds. However, at the time the petition was served, these issues had not been the subject of an impartial hearing, and therefore, there is no determination of an impartial hearing officer to be reviewed (See Education Law Section 4404 [2]). If petitioner is dissatisfied with the CSE's recommendation, she must first request that an impartial hearing be held. I note that petitioner requests that her son's records be expunged. If she believes that her son's records are inaccurate, she may request a hearing pursuant to the Family Educational Rights and Privacy Act.

 

        THE APPEAL IS DISMISSED.

 

Dated: Albany, New York __________________________
June 1, 1999 ROBERT G. BENTLEY