95-055

      Petitioner appeals from the decision of the impartial hearing officer which denied petitioner's request for an order requiring respondent to reimburse her for the cost of her son's tuition at the private school in which petitioner placed the child for the 1993-94 school year. The hearing officer denied petitioner's request for reimbursement solely on the basis of petitioner's alleged failure to request reimbursement in a timely manner. This appeal must be dismissed as untimely.

        Petitioner's son, who is eight years old, was classified by respondent's committee on special education (CSE) as emotionally disturbed, on May 21, 1992. His classification is not in dispute. The CSE recommended that the child be placed in a private day school, and he receive speech/language therapy, occupational therapy, and counseling. The record does not reveal whether respondent offered the child a specific placement for the 1992-93 school year. He was enrolled by petitioner, at her expense, in the Stephen Gaynor School in New York City, in September, 1992. The child remained at that school for the 1993-94 and 1994-95 school years. The Stephen Gaynor School has not been approved by the State Education Department as a school for children with disabilities, for the purpose of State reimbursement to school districts which place children in the school.

        A hearing was held on April 3, 1995. Petitioner, who did not attend the hearing, was represented by her attorney. The assistant chairperson of the CSE of Community School District No. 3 appeared on behalf of respondent. The assistant chairperson acknowledged that respondent had failed to offer the child an appropriate placement for either the 1993-94 school year or the 1994-95 school year. No testimony was taken at the hearing. Four documents: the child's individualized education program (IEP), which the CSE had prepared on May 21, 1992, the child's progress report from the Stephen Gaynor School for the 1994- 95 school year, a class profile, and a narrative report from the private school, dated November 17, 1994, were introduced into evidence.

        In a decision which was dated May 8, 1995, the hearing officer found that the Stephen Gaynor School had provided the child with an appropriate program during both the 1993-94 and the 1994-95 school years. He apparently based his finding upon a comparison of the child's abilities and needs from the 1992 IEP with the description of the child's performance in the 1994-95 progress report. The hearing officer opined that petitioner was entitled to be reimbursed for the reasonable cost of tuition at the Stephen Gaynor School for the 1994- 95 school year, but declined to order respondent to reimburse petitioner because she failed to present evidence of the amount of tuition which she had paid. The hearing officer denied petitioner's tuition reimbursement claim for the 1994-95 school year, " ... without prejudice to a renewed application upon proper proofs." The hearing officer held that the petitioner's claim for tuition reimbursement for the 1993-94 school year was time-barred, because it was not asserted during the 1993-94 school year. He denied her claim for the 1993-94 school year " ... with prejudice."

        Petitioner did not appeal from the hearing officer's decision. Instead, her attorney appeared before the hearing officer on June 5, 1995, for the purpose of having the child's teacher testify by telephone about the child's program at the Stephen Gaynor School (notwithstanding the hearing officer's prior finding that the school's program was appropriate for the child). The attorney again submitted the child's 1994-95 progress report. While waiting for the teacher to become available to testify, petitioner's attorney argued that one of the judicial decisions upon which the hearing officer had relied in his May 8, 1995 decision denying petitioner's 1993-94 tuition reimbursement claim was inapplicable to petitioner's tuition claim for the 1993-94 school year, because it was based upon different facts. The assistant chairperson of the CSE objected to consideration of the attorney's argument, on the ground that the hearing officer's decision with regard to the 1993-94 school year was final. The hearing officer reserved decision upon the assistant chairperson's objection. The hearing was concluded, because the child's teacher was unavailable.

        Petitioner's attorney and the CSE assistant chairperson appeared before the hearing officer again, on June 14, 1995, at which time the child's teacher at the Stephen Gaynor School testified by telephone. Petitioners's attorney "renewed" his application for reconsideration of the hearing officer's decision denying petitioner's claim for the 1993-94 school year. The hearing officer responded by indicating that the application was still under consideration.

        In a decision which was dated July 19, 1995, the hearing officer found that the child's program for the 1994-95 school year was appropriate, and that the private school's tuition rate was reasonable. He ordered respondent to reimburse petitioner for the cost of the tuition which she paid for the 1994-95 school year. The hearing officer did not address petitioner's request that his May 8, 1995 decision be reopened.

        This appeal was commenced by service of a notice of intention to seek review upon respondent on July 31, 1995. The petition was not served until August 17, 1995. Petitioner asserts that she is appealing from the May 8, 1995 and July 18, 1995 decisions of the hearing officer. However, she is not aggrieved by the latter decision. She contends that the appeal is timely, because the hearing officer permitted additional argument about her claim for tuition reimbursement during the 1993-94 school year at the June 5, 1995 hearing. She asserts that she would otherwise have appealed from the hearing officer's "interlocutory decision."

        Respondent argues that the appeal is untimely under the Regulations of the Commissioner of Education pertaining to appeals to the State Review Officer. 8 NYCRR 279.2 (b) provides that a parent who seeks review of a hearing officer's decision must serve a notice of intention to seek review upon the board of education within 30 days after receipt of the decision to be reviewed, and must serve the petition for review within 40 days after receipt of the hearing officer's decision.

        Respondent bears the burden of showing when petitioner received the hearing officer's decision. It has not shown when petitioner received the decision. Normally, this omission would be fatal to respondent's defense of untimeliness (Application of a Child with a Disability, Appeal No. 93-23; Application of a Child with a Disability, Appeal No. 95-1). However, it is clear from the record that petitioner must have received the hearing officer's May 8, 1995 decision by the time the second hearing was held on June 5, 1995. The appeal is untimely because it was not brought within the regulatory time limits, even from that date.

        Although petitioner has characterized the hearing officer's May 8, 1995 decision as "interlocutory", I find that it was a final adjudication with respect to her claim for tuition reimbursement for the 1993-94 school year. Her claim for that school year was dismissed with prejudice, while her claim for the 1994-95 school year was dismissed without prejudice. Only the latter claim was subject to a reapplication for consideration. Petitioner cannot convert a final determination into an interim, or interlocutory, ruling merely by attempting to reargue the matter (see 34 CFR 300.509). Under similar circumstances (Application of a Child with a Disability, Appeal No. 95-47), a State Review Officer found that an appeal should have been taken from a hearing officer's final adjudication of a tuition reimbursement claim for one school year, even though the hearing continued with respect to the parent's claim for tuition reimbursement for another school year. In that appeal, respondent did not raise the affirmative defense of untimeliness. However, it has raised the defense in this appeal, and I find that the defense is well founded.

THE APPEAL IS DISMISSED.