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 Lakeland Central School District
S. Jean Smith, Esq., attorney for petitioners
Shaw & Perelson, LLP, attorneys for respondent, Garrett L. Silveira, Esq., of counsel
Petitioners appeal from an impartial hearing officer's decision denying their request to be reimbursed for the cost of their son's tuition at the Kildonan School (Kildonan) for the 2001-02 school year. The appeal must be dismissed as untimely.
At the time of the hearing, petitioners' son was 11 years old and was in the sixth grade at Kildonan. The student exhibited appropriately developed verbal reasoning, visual-spatial organization, language, and basic sensory motor skills. However, he experienced difficulty with attention and impulse control, flexibility in thinking, speed of information processing, academic achievement, and fine and oral motor skills (Exhibits 11, 12, 13, 40). These difficulties affected his ability to progress in the general education curriculum (Exhibit 22). The student's classification as other health impaired is not in dispute (Transcript pp. 198-200).
At a meeting held August 2, 2001, the Committee on Special Education (CSE) recommended an individualized education program (IEP) (Exhibit 22) that included "collaboration" classes in integrated settings for social studies and language arts, five times a week, for 42 minutes per class, and non-integrated 15:1+1 special classes in math, science, and skills, five times a week, for 42 minutes per class, with adaptive physical education two times a week, for 42 minutes a class. Group occupational therapy was recommended for two 30-minute periods weekly, and individual occupational therapy was recommended to be provided once a week for a 30-minute session. Group speech-language therapy was recommended twice a week for 40-minute periods, and individual speech-language therapy was recommended once a week for a 40-minute session. The CSE recommended an aide be assigned to the student for academic support and to maintain safety during transitions required for changing classes. Sensory integration, an alpha smart keyboard, a calculator and FM sound field equipment were also recommended.
By letter dated August 24, 2001 (Exhibit 6), the student's mother expressed her disagreement with the proposed August 2001 IEP and requested an impartial hearing. She asserted that the IEP was not significantly different from prior IEPs which, in her opinion, had not been educationally beneficial for her son. In addition, the mother rejected the placement recommended for her son as inappropriate and inconsistent with recommendations, but she did not refer to specific recommendations. At the hearing, petitioners sought reimbursement for their son's tuition at Kildonan.
An impartial hearing was convened on three separate dates during the period of November 20, 2001 to December 21, 2001. In a decision dated February 14, 2002, the impartial hearing officer found that the respondent failed to sustain its burden of establishing that it had offered the student an appropriate IEP, that petitioners failed to prove that Kildonan was an appropriate program for their son's educational needs, and that equitable considerations did not favor the parents (See Sch. Comm. of Burlington v. Dep't of Educ., 470 U.S. 359 ). The hearing officer denied petitioners' application for tuition reimbursement and related expenses for the 2001-02 school year.
Petitioners contend that the hearing officer erred in determining that they failed to establish that Kildonan appropriately addressed their son's needs and that equitable considerations did not favor reimbursement. Respondent has not cross appealed from the hearing officer's determination that it did not offer an appropriate IEP; it has, however, included in its answer affirmative defenses regarding the timeliness of the appeal, procedural irregularities, and the merits of the petition.
This appeal is replete with jurisdictional and procedural defects. Respondent contends that the appeal is procedurally defective because petitioners did not properly serve their notice of intention to seek review, notice with petition, and petition upon respondent, in accordance with the requirements of 8 NYCRR 279.2(a) and (b). Respondent further argues that the petition was improperly verified (8 NYCRR 279.1, 275.5) and untimely (8 NYCRR 279.2[b]).
The Regulations of the Commissioner of Education require that a notice of intention to seek review of an impartial hearing officer's decision be served within 30 days after receipt of the decision, and that the petition for review be served within 40 days of receipt of the decision (8 NYCRR 279.2[b]). The petition must be verified by at least one of the petitioners (8 NYCRR 275.5). Service of the verified petition upon a school district must be made by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education of such school district, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR 279.2[b], 275.8[a]). The State Review Officer has discretion to excuse an untimely appeal for good cause shown, and the reasons for failure to initiate a timely appeal are to be set forth in the petition (8 NYCRR 275.16, 279.1[a]). Subsequent pleadings may be served upon the adverse party or its counsel by mail or personal service (8 NYCRR 275.8[b]). A reply to respondent's answer must be served within three days after service of the answer, unless service of the answer has been effectuated by mail, in which case, the date of mailing and the subsequent two days will be excluded from the computation of the three day period (8 NYCRR 279.6, 279.9).
Copies of the hearing officer's decision were received by petitioners and respondent on March 5, 2002 (See Notice of Intention to Seek Review and Answer Exhibits C and D). On April 1, 2002, petitioners personally served their notice of intention to seek review upon the secretary to respondent's pupil personnel services director, instead of upon the district clerk, a member of the board of education, the superintendent, or an individual designated by the board (8 NYCRR 275.8[a], 279.2[a] and [b]).
Petitioners' memorandum of law was served by mail, without a petition, on respondent's CSE and respondent's attorney on April 30, 2002, approximately two weeks after the petition was required to be personally served on one of the individuals authorized to receive service. By letter dated June 19, 2002, addressed to the State Education Department's Office of Counsel, petitioners' attorney acknowledged her failure to serve the petition on respondent, attributing this omission to inadvertence and offering no other justification. Also on June 19, 2002, petitioners served an improperly verified petition (8 NYCRR 275.5) and notice with petition on respondent's attorney by mail, instead of personally serving the district clerk, a member of the board of education, the superintendent, or an individual designated by the board (8 NYCRR 275.8[a], 279.2[b]). I note that the petition was dated April 29, 2002, even though it should have been served on respondent no later than April 15, 2002 (8 NYCRR 279.2 [b]).
On June 27, 2002, the Office of Counsel informed petitioners that their appeal would not be considered unless they corrected the personal service and verification deficiencies. Petitioners were directed to comply with the regulations within 14 days [by July 11, 2002] or the appeal would be considered abandoned. On July 22, 2002, eleven days after the specified deadline, the petition was properly verified by the parent (8 NYCRR 275.5, 279.1[a]). However, the verified petition was then served on July 23, 2002 on the secretary to the respondent's pupil personnel services director instead of on an individual authorized to receive service (8 NYCRR 275.8[a], 279.2[b]). Petitioners' reply was served on August 8, 2002, approximately four weeks after the due date of July 8, 2002 (8 NYCRR 279.6, 279.9).
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 (8 NYCRR 275.16, 279.1[a]; Application of a Child with a Disability, Appeal No. 02-063; Application of the Bd. of Educ. of the City Sch. Dist.of the City of New York, Appeal No. 00-050), and the reasons for the delay are to be set forth in the petition. In the instant case, no reason for the delay in commencing the appeal is set forth in the petition (8 NYCRR 275.16, 279.1[a]; Application of a Child with a Disability, Appeal No. 02-063; Application of the Bd. of Educ.of the City Sch. Dist. of the City of New York, Appeal No. 00-050). Petitioners' letter to the Office of Counsel dated June 19, 2002, citing the mistake of inadvertence as the reason why the petition was not served with the memorandum of law upon respondent on April 30, 2002, did not constitute good cause for the delay and was not set forth in the petition. I further note that even if the petition had been served with the memorandum of law on April 29, 2002, it would have been two weeks late and lacking any explanation for that delay.
As of today, more than 15 months after the notice of intention to seek review and the petition were due to be personally served on respondent, petitioners still have not complied with the regulations by serving one of the specified individuals authorized to receive service (8 NYCRR 275.8[a], 279.1[a], 279.2[a] and [b]). In light of petitioners' failure to establish good cause for their delay in commencing this appeal, I decline to excuse such delay. Accordingly, I find that the appeal is untimely (Application of a Child with a Disability, Appeal No. 02-063; Application of the Bd. of Educ. of the City Sch. Dist. of the City of New York, Appeal No. 00-050).
THE APPEAL IS DISMISSED.
Albany, New York
July 31, 2003
PAUL F. KELLY