The State Education Department
State Review Officer

No. 03-086

 

 

 

 

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 Springville-Griffith Institute Central School District

Appearances:
Andrew Cuddy, Esq., attorney for petitioner

Hodgson Russ, LLP, attorneys for respondent, Jerome D. Schad, Esq. and Ryan L. Everhart, Esq., of counsel

DECISION

        Petitioner appeals from an impartial hearing officer's decision which determined that respondent had offered a free appropriate public education (FAPE) to petitioner's son in the least restrictive environment (LRE). Petitioner asserts that her son's individualized education program (IEP) was inappropriate. The appeal must be dismissed as untimely.

        At the time of the hearing, petitioner's son was seven years old. Petitioner does not challenge her son's classification as a student with autism. During the hearing, the child attended a 12:1+1 class with a 1:1 aide located within respondent's district where he received special education and related services.

        The hearing concluded on May 14, 2003. On July 10, 2003 the hearing officer rendered his decision finding that respondent had offered an appropriate educational program for the child. In his July 10, 2003 decision, the hearing officer provided that he would "allow the district to move in 14 days to re-open the record for the limited purpose of submitting [the speech pathologist's] certificate if any [sic] exist". In the July 10th decision, the hearing officer ordered the following: that the Committee on Special Education (CSE) review its procedure to ensure future compliance so that reports of evaluations upon which the CSE's recommendation is based shall be forwarded to the BOE along with the recommendations; that the CSE and the BOE for the district should review its procedures to ensure future compliance with part 200.4(d)(5); that the CSE should convene to determine what specific speech and language testing should be provided and the student is directed to submit to same; that the CSE should reconvene to determine whether additional speech and language compensatory services should be provided to the student in light of the certification deficiency of the services provider; that the CSE should reconvene to review the IEP to ensure the appropriate transitional services for the current and future integration in a general education setting; that the issue of training and counseling for the parent and counseling for the student be remanded to the CSE for its further review and recommendation; that the CSE should reconvene to determine the need for further indirect consultant teacher support in addition to the direct support being provided to the student and; that the district must prepare a functional behavioral assessment and the CSE must reconvene to consider said assessment. In addition, the July 10th decision concludes with a notice of the right to appeal and the relevant timeline.

        On August 20, 2003, the hearing officer rendered a "supplemental decision" in response to the district's motion to submit proof regarding certification of the speech pathologist. On October 1, 2003, petitioner served a petition to seek review on respondent. Petitioner did not serve the district a notice of intention to seek review. In its answer, respondent raises the affirmative defense that the petition was not served in a timely manner (Answer 23). Petitioner filed a reply on October 19, 2003. In its petition, petitioner only appeals determinations found in the July 10, 2003 decision.

        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 for review must be served within 40 days after receipt of the decision sought to be reviewed (8 NYCRR 279.2[b]).

        In the instant case, although the record does not reveal when petitioner received the July 10, 2003 decision, petitioner served a petition on respondent on October 1, 2003, 82 days from the July 10, 2003 date of the hearing officer's decision. Petitioner does not allege that the July 10, 2003 decision was received by petitioner in an untimely manner.

        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). Petitioner here asks that I excuse the delay in serving her petition due to the "unusual manner" in which the hearing officer rendered his July 10, 2003 decision followed by an August 20, 2003 "supplemental" decision. I decline to do so. Petitioner was clearly put on notice by the hearing officer, at the end of the July 10, 2003 decision, that the failure to file a timely petition would result in a waiver of the right to appeal "this decision". Counsel for petitioner is also aware of the finality provision, having provided representation in an appeal to a State Review Officer, which resulted in a decision, within the past year, which addressed that particular issue (Application of the Bd. of Educ. of the Springville-Griffith Institute Cent. Sch. Dist., Appeal No. 02-043). Both federal and state regulations provide that a hearing officer's decision is final, except that either party may appeal from such decision to the State Review Officer (34 C.R.R. 300.510[a]; 8 NYCRR 200.5[i][4][ii]). Upon the facts before me, I find that the July 10, 2003 decision is the final determination of the issues from which petitioner seeks review, and that such decision on those issues became final in the absence of a timely appeal. I will not excuse petitioner's delay, and I find that the appeal is 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. 99-039 [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

__________________________

November 21, 2003

PAUL F. KELLY
STATE REVIEW OFFICER