The State Education Department
State Review Officer

No. 03-045

 

VACATED: ORDER DATED May 3, 2004
NYS SUP CT NASSAU 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 West Hempstead Union Free School District

 

Appearances:
Sonia Mendez-Castro, Esq., attorney for petitioners

Guercio & Guercio, attorney for respondent, Tammy R. Mays, Esq., of counsel

 

DECISION

 

         Petitioners appeal from the decision of an impartial hearing officer which denied their request for tuition reimbursement for their son's attendance at Sinai Special Needs Institute (Sinai) for the 2001-02 and 2002-03 school years. The appeal must be dismissed as untimely.

        Petitioners' son was 16 years old at the time of the hearing and attending tenth grade at Sinai, where he had been unilaterally placed by his parents for the 2001-02 and 2002-03 school years. Sinai is a private school in New Jersey for boys with developmental disabilities and/or learning disabilities. The student is classified as speech impaired and began receiving services from respondent when he was approximately three or four years old (Exhibit H; Transcript p. 549). For the 2001-02 school year, respondent's Committee on Special Education (CSE) recommended a special class with a 15:1 student to staff ratio (Exhibit H). The student's individualized education program (IEP) dated June 11, 2001, indicates that respondent's CSE also recommended the related services of individual occupational therapy once a week for 30 minutes and individual speech-language therapy twice a week for 30 minutes (Exhibit H). By letter dated August 26, 2001, petitioners notified respondent that they would be unilaterally enrolling their son in Sinai and would seek reimbursement for tuition and transportation expenses (Exhibit O).

        By letter dated October 2, 2001, counsel for petitioners requested an impartial hearing (Exhibit P). The hearing began on September 19, 2002, and testimony was heard for a total of four days, concluding on October 22, 2002. On February 17, 2003 the hearing officer rendered his decision finding that respondent had not offered an appropriate educational program to the student. He further found that petitioners' unilateral placement of their son at Sinai was also inappropriate and denied tuition reimbursement. The hearing officer ordered that if petitioners' letter dated August 26, 2001 was a timely request for transportation and the distance to Sinai was less than 50 miles, respondent must reimburse petitioners' transportation expenses for the 2001-02 and 2002-03 school years (IHO Decision p. 15).

        On March 21, 2003, petitioners served a notice of intention to seek review on respondent. By letter dated March 26, 2003, petitioners wrote to the Office of State Review requesting an extension of time for filing a petition until May 6, 2003. By letter dated April 3, 2003, petitioners were informed by the Office of State Review that their request could not be granted because the State Review Officer had no jurisdiction over the matter until an appeal was commenced by service of a petition. The petition was subsequently served on respondent on May 13, 2003, a week after the date until which petitioners had requested an extension. In addition, petitioners did not allege good cause in their petition for the untimely filing.

        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 within 30 days after receipt of the decision. The petition must then 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 32 days of the date of the decision. However, the petition in this appeal was not served upon respondent until 85 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 which 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; 8 NYCRR 275.16, 279.1[a]), 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 good cause 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 [165 day 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 28, 2003

 

PAUL F. KELLY
STATE REVIEW OFFICER