The State Education Department
State Review Officer

No. 03-092

 

 

 

 

 

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 Arlington Central School District

 

Appearances:
Family Advocates, Inc., attorney for petitioners, RosaLee Charpentier, Esq., of counsel

Raymond G. Kuntz, P.C., attorney for respondent, Leah L. Murphy, 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 Oakwood Friends School (Oakwood) for the 2002-03 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 as untimely.

        At the time of the hearing, petitioners' son was 17 years old, classified by respondent's Committee on Special Education (CSE) as emotional disturbed (ED), and attending his senior year at Oakwood where he was unilaterally placed by his parents. Oakwood 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 has a history of attentional and social difficulties in school (Exhibit 102). He is obese and has been teased and harassed by his peers (see Exhibit 102). When the Wechsler Adult Intelligence Scale- Third Edition (WAIS-III) was administered on April 26, 2001 and May 2, 2001, the student obtained a verbal IQ score of 118, a performance IQ score of 113, and a full scale IQ score of 117 (Exhibit 7). The psychologist that administered the WAIS-III also opined that the socially/emotionally Behavior Assessment System for Children (BASC) did not identify this student's depression at that time, but he does have a history of depression and has been diagnosed with depression, oppositional defiant disorder (ODD) and obsessive compulsive disorder (OCD) (Exhibit 7). For the 2001-02 school year, respondent's CSE recommended that petitioners' son be classified as emotionally disturbed and recommended that he be placed at respondent's high school. The CSE recommended that the student be educated with his non-disabled peers, receive one period of resource room daily, and 30 minutes of individual counseling once a month (Exhibit 7).

        A neuropsychological evaluation was conducted in August 2002 where the neuropsychologist recommended that the student be placed in an alternate academic placement with small classes and an individualized approach because of his emotional sensitivity and social anxiety (Exhibit 102). For the 2002-03 school year, respondent's CSE recommended that petitioners' son be classified as ED and recommended that he attend the Karafin School in Mount Kisco (Exhibit 5). The CSE recommended that the student be in a class with a student to staff ratio of 8:1+1 and receive 40 minutes of individual counseling weekly (Exhibit 5).

        By letter dated August 15, 2002, petitioners rejected the CSE's placement determination and requested an impartial hearing to obtain tuition reimbursement for their son's attendance at Oakwood for the 2002-03 school year (Transcript p. 13). The hearing commenced on September 17, 2002 and ended on March 25, 2003. In a decision dated June 19, 2003, the impartial hearing officer found respondent's recommended individualized education program (IEP) to be appropriate. The hearing officer also found that even if respondent's recommended program was not appropriate, Oakwood did not have staff with expertise in petitioners' son's individualized needs, thus it was not appropriate. Further, the hearing officer determined that equitable considerations did not support petitioners' claim because they prevented respondent's CSE from conducting evaluations at an earlier date. Petitioners request that the hearing officer's decision be annulled and that they be awarded tuition reimbursement for the 2002-03 school year at Oakwood.

        On September 9, 2003 petitioners served a notice of intention to seek review on respondent; however, the petition was not served on respondent until October 7, 2003. Petitioners have offered no excuse for their delay of waiting four months from the date of the hearing officer's decision to serve the petition on respondent.

        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 10 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 82 days from the date of the decision. The petition in this appeal was not served upon respondent until 110 days after the date of the decision. Petitioners have not alleged nor shown that they received the hearing officer's decision 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 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., 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 [petition served 165 days from date of decision]; Application of a Child with a Disability, Appeal No. 02-063 [petition served 122 days from date of decision]; Application of the Bd. of Educ., Appeal No. 00-050 [petition served 98 days from date of decision]).

        THE APPEAL IS DISMISSED.

 

 

Dated:

Albany, New York

 

__________________________

 

November 6, 2003

 

PAUL F. KELLY
STATE REVIEW OFFICER