95-021

        Petitioner appeals from the refusal on April 29, 1994 by an impartial hearing officer to resume a hearing which had been adjourned for one and one-half years to accommodate petitioner's health needs. The hearing officer declined to continue with the hearing, which concerned the child's educational program for the 1992-93 school year, on the ground that the passage of time had rendered the matter moot. The appeal must be dismissed as untimely.

        Petitioner's son, who is sixteen years old, was identified a child with a disability and received special education services while he was enrolled in the schools of the Cornwall Central School District. The child's learning disability is manifested by significant delays in the development of his reading and writing skills. In September, 1989, he entered respondent's schools as a fifth grade student. With petitioner's consent, the boy was classified as learning disabled, and he was placed in a special education class of the Board of Cooperative Educational Services of Orange and Ulster Counties (BOCES) located in the Coldenham Elementary School of the Valley Central School District. He remained in the BOCES class until March, 1991, when respondent's committee on special education (CSE) recommended that he be placed in a sixth grade special education class in respondent's Taft Elementary School. The CSE further recommended that the child be mainstreamed in regular education special subject classes, and that he receive individual instruction in reading from his special education teacher and from a reading specialist. His special education teacher reported that the child was not a behavioral problem in her class, but had lost his temper on occasion in unstructured settings.

        For the 1991-92 school year, when the child entered the seventh grade in the Washingtonville Junior High School, the CSE recommended that the child receive primary instruction for English, mathematics, science and social studies in a special education class with a 15:1 child to adult ratio, and that he receive supportive resource room services. The child was mainstreamed for special subjects, and received speech/language therapy, occupational therapy, and group and individual counseling. At the start of the 1991-92 school year, counseling for the child was discontinued at his parents' request, because the child was receiving private counseling. The amount of his resource room services was decreased during the school year, because of scheduling difficulties. In January, 1992, the CSE recommended that the child be mainstreamed for seventh grade social studies.

        In October, 1991, the child received an in-school suspension for fighting with another child. In January, 1992, he received an out-of-school suspension for fighting. He was suspended from school again in February for reportedly having a knife in school. Shortly thereafter, the child was hospitalized at the Westchester County Medical Center, after he reportedly ingested a quantity of Acetaminophen. In May, 1992, the child was suspended from school for fighting with another child. He was also reported to be rude to the teaching staff in May and June.

        On June 5, 1992, the CSE recommended that the child remain classified as learning disabled, but that he be placed in a BOCES special education class for the 1992-93 school year. The CSE recommended the new setting, with its 6:1+1 child to adult ratio, because it believed that the child required a more structured setting. It also recommended that the child receive individual and group counseling, and occupational therapy consultation services.

        Petitioner requested that an impartial hearing be held to review the CSE's recommendation with respect to classification and placement. Prior to the opening of the hearing on July 7, 1992, the parties reportedly agreed that the child's classification as learning disabled would not be challenged, and that the BOCES would perform an in-take evaluation of the child to ascertain whether it had a suitable program for him. It was further agreed that the hearing would resume, if the BOCES indicated that it had a suitable program for the child. On July 17, 1992, the child was evaluated by the BOCES, which indicated that it had an appropriate program for him.

        The hearing resumed on August 8, 1992. Petitioner was assisted at the hearing by a lay advocate, who challenged the validity of the hearing officer's appointment by respondent's superintendent from a list of potential hearing officers who had been approved by respondent (cf. Application of a Child with a Handicapping Condition, Appeal No.92-19). The hearing officer reserved decision on the objection to his appointment. and allowed the hearing to proceed. At or about the time the hearing resumed, petitioner requested that another hearing be held because the CSE had held a meeting which she was unable to attend. When the hearing in the first matter resumed on September 8, 1992, the hearing officer and the parties discussed having the hearing officer take jurisdiction over both matters. Although petitioner, through her advocate, initially contended that the first hearing dealt with the child's placement, and the second hearing was to deal with his educational program, she later conceded that both matters could be addressed by the hearing officer. The "combined" hearing was scheduled to resume on October 27, 1992. However, the hearing did not continue because petitioner was hospitalized for surgery. The hearing officer advised petitioner's advocate that he would not resume the hearing until petitioner asked him to do so.

        In her petition, petitioner alleges that she was incapacitated by her surgery in the Fall of 1992 and subsequent chemotherapy for more than sixteen months. By letter to the CSE chairperson, dated March 2, 1994, petitioner asked that an agreement which the parties had reached concerning the child's reading program be added to the child's individualized education program (IEP). She also asked the CSE chairperson to contact the hearing officer for the purpose of concluding the 1992 hearing by having the hearing officer enter the agreement about the child's reading program on the child's IEP, which " ... would close the issue" (Exhibit 4 to the petition). The record does not reveal what, if any, response to petitioner's proposal was made by the CSE chairperson. In a letter to respondent's Assistant Superintendent for Instruction, dated April 21, 1994, petitioner reiterated her request that the hearing be reconvened. Petitioner acknowledged that the Assistant Superintendent had already orally advised her that the hearing officer believed that the matter was closed because the CSE had subsequently recommended that the child return to respondent's schools. Petitioner asserted that the issue of whether the child attend the BOCES or respondent's schools was one of placement, while "her issue" was the appropriateness of the child's program.

        By letter to petitioner, dated April 29, 1994, the hearing officer responded to petitioner's letter of April 21, 1994 to the Assistant Superintendent. Reminding petitioner that he had informed her in October, 1992, that the hearing would not be resumed until she contacted him, the hearing officer asserted that she had never contacted him. He further asserted that the issues which had been before him in the hearing concerned the child's program for the 1992-93 school year, and that those issues had become moot. The hearing officer further asserted that the shortcomings, if any, of the child's 1992-93 program could no longer be corrected, and suggested that petitioner wait until the child's program for the 1994-95 school year had been developed and challenge that program.

        During the 1993-94 school year, the child was enrolled in special education English and reading classes, and in regular education mathematics, earth science, social studies, and special subjects. On April 20, 1994, the CSE recommended that the child be enrolled in special education only for English during the 1994-95 school year, and that he be mainstreamed in tenth grade classes for all other subjects.

        On May 20, 1994, petitioner requested that an impartial hearing be held, but did not specify the subject matter for the hearing. The hearing officer from the 1992 hearing was appointed to conduct the hearing which petitioner requested in May, 1994. On June 28, 1994 the parties entered into a stipulation before the hearing officer, pursuant to which respondent agreed to provide the child with a reading program using the Orton-Gillingham technique during the Summer of 1994, and to evaluate the child's needs for occupational therapy and speech/language therapy. In addition, respondent agreed to pay for a neurological evaluation of the child. Although petitioner's advocate suggested that the hearing officer retain jurisdiction to determine any issue arising from either the child's existing IEP, or a new IEP, the hearing officer declined to do so.

        The child's IEP for the 1994-95 school year was revised by the CSE on September 13, 1994, to include special education instruction in reading. The CSE also reviewed the results of the child's evaluations, and agreed to petitioner's request for an independent occupational therapy evaluation. On December 12, 1994, the CSE met to review the results of the child's independent occupational therapy evaluation. The independent evaluator recommended that the child not receive occupational therapy, but that he receive keyboarding training. The CSE accepted the evaluator's recommendation.

        On or about December 8, 1994, respondent appointed another hearing officer, in response to a request by petitioner for an impartial hearing. The hearing commenced on February 1, 1995. Petitioner, through her lay advocate, identified two issues to be determined by the hearing officer. First, she asserted that the hearing was a "continuation" of the hearing which she had requested in June, 1992, and which the hearing officer in that matter had declined to reconvene in April, 1994. Second, petitioner asserted that the child's IEP for the 1994-95 school year was procedurally flawed and substantively defective. The hearing officer orally ruled that he had no jurisdiction to review the actions of the hearing officer in the prior hearing, and that petitioner's only remedy was an appeal to the State Review Officer.

        The hearing, which began on February 1, 1995, was continued on March 15, 1995. At the second day of the hearing, the parties entered into a written stipulation, pursuant to which it was agreed that the hearing would be adjourned sine die, and that the CSE would conduct its annual review of the child to prepare his IEP for the 1995-96 school year on April 7, 1995. The parties further agreed that, for the remainder of the 1994-95 school year, the child would receive special education instruction in reading for one class period per day and special education in English for one period per day. In addition, he would receive two periods per day of resource room services. The parties also agreed that petitioner could reopen the hearing if respondent failed to implement the stipulation within five school days, and that respondent would appoint the same hearing officer to conduct the hearing, in the event petitioner challenged the child's IEP for the 1995-96 school year. In a brief written decision, dated March 24, 1995, the hearing officer incorporated the March 15, 1995 stipulation.

        This appeal was commenced by service upon respondent of a notice of intention to seek review on May 8, 1995. The petition was served on May 9, 1995. Petitioner seeks a decision by the State Review Officer concerning the action by the hearing officer in the first hearing denying petitioner's request to resume the hearing, so that she may obtain closure with regard to the allegations which she was unable to present at the first hearing. She does not identify those allegations.

        Respondent asserts that the appeal is untimely, because it is taken from the hearing officer's letter of April 29, 1994 denying petitioner's request for a resumption of the hearing. The hearing officer's letter was dated slightly more than one year before this appeal was commenced. State regulation requires that the petition in an appeal to the State Review Officer be served upon the board of education, the district clerk, or the chief school officer within 40 days after receipt of the hearing officer's decision (8 NYCRR 279.2 [a]).

        Respondent bears the burden of proving its affirmative defense that the appeal is untimely (Application of a Child with a Disability, Appeal No. 93-38; Application of a Child with a Disability, Appeal No. 95-1). Ordinarily, this would require respondent to establish the date on which petitioner received the hearing officer's letter (Hyde Park CSD v. Peter C., Sharon C., and the State Review Officer, 93 Civ. 0250 [S.D.N.Y., 1994]). In this instance, petitioner has attached a copy of the hearing officer's letter of April 29, 1994 to her petition, thereby establishing that she received the letter. Although petitioner and her advocate appeared before the hearing officer on June 28, 1994, neither petitioner nor her advocate raised the issue with him. Petitioner does not assert that she was ill, or otherwise precluded from promptly bringing an appeal to challenge the hearing officer's decision. Instead, she asserts that she believed that her next step was to raise the issue with another hearing officer. Nevertheless, she did not attempt to pursue the issue with another hearing officer for several months. When she did raise the issue at the hearing on February 1, 1995, she was advised by the hearing officer to bring an appeal to the State Review Officer. Thereafter, petitioner waited another three months to bring the appeal. Upon the record before me, I find that petitioner is guilty of laches in commencing her appeal.

THE APPEAL IS DISMISSED.