The State Education Department
State Review Officer

No. 05-098

 Application of a CHILD WITH A DISABILITY, by her parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Baldwin Union Free School District

Appearances:
Neal Howard Rosenberg, Esq., attorney for petitioners

Ingerman Smith, LLP, attorney for respondent, Lawrence W. Reich, Esq., of counsel

DECISION

            Petitioners appeal from the decision of an impartial hearing officer which denied their request to be reimbursed for their daughter's tuition costs at the Vincent Smith School for the 2004-05 school year.  The appeal must be dismissed.

            At the time of the two day impartial hearing in this proceeding, conducted in May 2005, the student was 15 years old and attending the Vincent Smith School (Tr. p. 319; Dist. Ex. 28). The student began attending the Vincent Smith School on October 4, 2004 (Joint Ex. 16). The Vincent Smith School has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities. The student's eligibility for special education programs and services as a student with an emotional disturbance (see 8 NYCRR 200.1[zz][4]), as determined at an October 14, 2004 Committee on Special Education (CSE) meeting, is not in dispute.  The dispute is whether respondent violated its child find obligation to timely locate, identify and evaluate the student (20 U.S.C. § 1412[a][3]; 34 C.F.R. § 300.125[a][1][i]) and whether petitioners interfered with respondent's evaluation process and ability to secure an appropriate placement for the student.

            By letter dated November 1, 2004, petitioners requested an impartial hearing on the issue of tuition reimbursement for petitioners' unilateral placement of their daughter at the Vincent Smith School for the 2004-05 school year, alleging that respondent's placement recommendation for the 2004-05 school year did not address the student's educational needs and was based on an invalid and inappropriate individualized education program (IEP) (Dist. Ex. 36).  

            The impartial hearing was held on May 2, 2005 and May 18, 2005.  The impartial hearing officer, in a decision dated July 25, 2005, denied petitioners' request for tuition reimbursement at the Vincent Smith School (IHO Decision, p. 17), finding that respondent's obligation to initiate CSE proceedings did not "mature" until August 5, 2004 (IHO Decision, pp. 13-16) and that petitioners subsequently interfered with respondent's evaluation process and ability to secure an appropriate placement for the student (IHO Decision, p. 16).

            On appeal, petitioners assert numerous claims regarding the impartial hearing officer's findings and request that the impartial hearing officer's decision be overturned in its entirety. 

            A petition for review to the State Review Officer must comply with the timelines specified in section 279.2 of the Regulations of the Commissioner of Education (8 NYCRR 279.13).  A petition for review must be served upon a school district within 35 days from the date of the decision sought to be reviewed (8 NYCRR 279.2[b]).  If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the period (id.).  A State Review Officer, in his or her sole discretion, may excuse a failure to timely seek review within the time specified for good cause shown (8 NYCRR 279.13).  The reasons for the failure to timely seek review shall be set forth in the petition (id.).   The impartial hearing officer's decision is dated July 25, 2005 (IHO Decision, p. 17).  There is no indication in the record that the decision was mailed.  Petitioners served the petition for review upon respondent on September 8, 2005 (see Pet. Aff. of Service sworn to Sept. 17, 2005).  Regardless of whether the decision was mailed, petitioners did not timely serve the petition upon respondent as required by 8 NYCRR 279.2(b).    Even assuming that the decision was served by regular mail and petitioners were entitled to the presumptive additional "date of mailing and four subsequent days thereto" exclusion in calculating the time for service of a petition, the petition should have been served by September 6, 2005.1 By letter to the State Review Officer dated September 14, 2005,2 counsel for petitioners requested that the delay in service of the petition be excused, stating simply that petitioners were unavailable during the Labor Day weekend when petitioners were on vacation.  Such reason was not set forth in the petition (8 NYCRR 279.13).  Nevertheless, I am not persuaded that the reason for delay set forth by petitioners amounts to good cause to excuse the untimely service of the petition for review.  The petition is, therefore, dismissed (Application of a Child with a Disability, Appeal No. 05-078; Application of a Child with a Disability, Appeal No. 05-066; Application of a Child with a Disability, Appeal No. 05-048; Application of a Child with a Disability, Appeal No. 04-103; Application of a Child with a Disability, Appeal No. 04-067; Application of a Child with a Disability, Appeal No. 03-109; Application of a Child with a Disability, Appeal No. 02-096).

            Although I will dismiss the petition for review as untimely, I have reviewed the hearing record and the merits of petitioners' appeal.3 I find that there is no need to modify the determination of the impartial hearing officer to deny petitioners' request to be reimbursed for their daughter's tuition costs, given the circumstances of this case. The record supports the impartial hearing officer's conclusion that a timely referral was made to respondent's CSE, that the student was placed by petitioners in a private school during the course of respondent’s CSE evaluation and IEP development, that the removal from home school instruction and placement took place without adequate notice to respondent (20 U.S.C. 1412[a][10][C][iii][I][bb],[II]4), and that petitioners failed to reasonably cooperate with the evaluation and placement process (Application of a Child with a Disability, Appeal No. 05-075).  I note that the impartial hearing officer made no finding as to the appropriateness of the private school placement and I find that the record does not demonstrate, by a preponderance of evidence, that the Vincent Smith School offered services or programming appropriate to meet the student’s social and emotional needs.

            THE APPEAL IS DISMISSED.

Dated:

Albany, New York

__________________________

 

October 19, 2005

PAUL F. KELLY
STATE REVIEW OFFICER

1  Calculating 35 days from the date of the decision, excluding the date of mailing and subsequent 4 days thereto, leads to a September 3, 2005 service due date. However, because September 3, 2005 was a Saturday and the following business day was a legal holiday, service on Tuesday, September 6, 2005, would have been permitted as the final day for timely service (8 NYCRR 279.11).

2  This letter, on its face, does not appear to have been copied to respondent.

3 Respondent argues that petitioners are not eligible for tuition reimbursement because the student has not previously received special education and related services under the authority of a public agency (20 U.S.C. § 1412 [a][10][C][ii]). For reasons discussed in Application of the Dept. of Educ., Appeal No. 05-074, I decline to find that the statutory provision relied on by respondent precludes petitioners from seeking tuition reimbursement (see also Placement of Children by Parent if FAPE is at Issue, 34 C.F.R. § 300.403, 64 Fed. Reg. 12601 at 12602 [Mar. 12, 1999]; Letter to Luger, 33 IDELR 126 [OSEP 1999]).

4  On December 3, 2004, Congress amended the IDEA, however, the amendments did not take effect until July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 [IDEIA], Pub. L. No. 108-446, 118 Stat. 2647).  Citations contained in this decision are to the statute as it existed prior to the 2004 amendments.  The relevant events in the instant appeal took place prior to the effective date of the 2004 amendments to the IDEA, therefore, the provisions of the IDEIA do not apply.