The State Education Department
State Review Officer

No. 02-063

 

VACATED: ORDER DATED  March 25, 2004
NYS SUP CT KINGS CO

 

 

 

Application of a CHILD WITH A DISABILITY, by his parents, 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:
Sonia Mendez-Castro, Esq., attorney for petitioners

Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Alexandra Standish, Esq., of counsel

 

DECISION

        Petitioners appeal from an impartial hearing officer's decision denying their request to be reimbursed for the cost of their son's tuition at Gesher Yehuda ("Gesher") for the 2001-02 school year. The hearing officer determined that respondent offered to provide the student with a free appropriate public education (FAPE) during that school year. The appeal must be dismissed.

        At the time of the hearing on January 14, 2002, petitioners' son was about to turn 11 years old, was classified by respondent's Committee on Special Education (CSE) as learning disabled, and was attending a combined fifth and sixth grade class at Gesher where he was unilaterally placed by his parents. Gesher is a private school that has not been approved by the Commissioner of Education to contract with boards of education for the education of students with disabilities. There is no dispute about the student's classification.

        Petitioners' son attended pre-kindergarten through first grade at the Magen David School (Exhibit 3). He was first referred to respondent's CSE in 1998, at which time the committee recommended placement in a Modified Instruction Service IV (MIS-IV) class and related services (Transcript p. 18). In 1999, respondent's CSE recommended an MIS-I class with a student to staff ratio of 15:1, but petitioners chose not to accept this placement and enrolled the student in Gesher for the 1999-2000 school year (Transcript p. 18). In May 2001, respondent's CSE recommended that the student complete the 2000-01 school year in an MIS-I class, which had a student to staff ratio of 15:1, and then move to a special class with a student to staff ratio of 12:1+1 for the 2001-02 school year (Exhibit 13). The CSE recommended that the student receive individual counseling, individual occupational therapy, and individual speech-language therapy, each for 30-minute sessions two times per week (Exhibits 13, 14, 15).

        By letter dated June 21, 2001, respondent confirmed the CSE recommendation for the 2001-02 school year, specifying the actual class recommended for the student (Exhibit 15). Upon receipt of such letter, the student's mother stated that she could not agree or disagree with the recommendation until she was able to visit the class in September 2001 (Exhibit 15). The mother visited respondent's recommended class on September 10, 2001 (Transcript pp. 77-78), at which time the school's assistant principal showed her both the recommended 12:1+1 class and a 12:1 class that was, in his opinion, better suited for the student (Transcript pp. 45-48). Specifically, the assistant principal opined that the 12:1 class would be preferable because the student's mother stated that her son was in fifth grade and the 12:1+1 class did not contain any fifth graders (Transcript pp. 48, 78).

        By letter dated September 14, 2001, petitioners rejected the CSE's placement recommendation and requested an impartial hearing to obtain tuition reimbursement for their son's attendance at Gesher for the 2001-02 school year (Exhibit A). The hearing was held on January 14, 2002. In a decision dated February 27, 2002 and amended March 1, 2002, the impartial hearing officer found that the assistant principal's opinion that the 12:1+1 program was not appropriate for the student neither equitably estopped respondent from asserting that its recommended placement was appropriate nor waived respondent's right to do so. The hearing officer found that the placement recommended by the CSE was appropriate, and he denied petitioners' request for tuition reimbursement. Petitioners request that the hearing officer's decision be annulled and that they be awarded tuition reimbursement for the 2001-02 school year at Gesher.

        On April 1, 2002 petitioners served a notice of intention to seek review on respondent; however, the petition was not served on respondent until July 1, 2002. Petitioners did not allege good cause in their petition for their delay of waiting four months from the date of the hearing officer's decision to serve the petition on respondent. It should be noted that petitioners did contact the Office of State Review, by letter dated April 19, 2002, advising that a petition, with consent of respondent, would be filed by May 30, 2002. The petition was not filed within that timeline.

        Section 279.2(b) of the Regulations of the Commissioner of Education provides that the notice of intention to seek review from an impartial hearing officer's decision must be served on the board of education, district clerk, or chief school officer within 30 days after receipt of the decision. The petition must be served at least ten days after the notice of intention is served, but no later than 40 days after receipt of the decision.

        In the instant case, although the record does not reveal when petitioners received the decision, petitioners served respondent with a notice of intention to seek review within 31 days of the date of the decision. However, the petition in this appeal was not served upon respondent until 122 days after the date of the decision.

        Article 89 of the Education Law and its federal counterpart, the Individuals with Disabilities Education Act (IDEA), provide a due process mechanism to promptly resolve the disputes that arise between parents and school districts, so that children will receive appropriate special education services. An untimely petition may be excused for good cause shown (Application of a Child with a Disability, Appeal No. 97-18; Application of the Bd. of Educ. of the Wappingers Cent. Sch. Dist., Appeal No. 91-35), and the reasons for the delay are to be set forth in the petition (8 NYCRR 275.16, 279.1[a]). Petitioners here offer no explanation for their delay in serving their petition. Therefore, I have no basis upon which to excuse their delay, and I find that the appeal is untimely (Application of a Child with a Disability, Appeal No. 03-005 [approximately four months delay in serving petition untimely]; Application of the Bd. of Educ. of the City Sch. Dist. of the City of New York, Appeal No. 00-050 [90 day delay in serving petition untimely]; Application of a Child with a Disability, Appeal No. 99-39 [one year delay in serving petition untimely]; Application of a Child with a Disability, Appeal No. 98-52 [over one year delay in serving petition untimely]).

 

 

        THE APPEAL IS DISMISSED.

 

 

 

 

Dated:

Albany, New York

 

__________________________

 

July 24, 2003

 

PAUL F. KELLY
STATE REVIEW OFFICER