99-039

       Petitioner appeals from the decision of an impartial hearing officer which upheld the recommendation of respondent's committee on special education (CSE) that her daughter's classification be changed from learning disabled to emotionally disturbed, and that she be placed in a specialized instructional environment-VIIB (SIE-VIIB) program at P.S. 771 in Brooklyn for the 1997-98 school year. The appeal must be dismissed as untimely.

        Although served with the petition in this appeal, respondent did not answer the petition, or appear in this appeal.

        The child was eight years old and in the third grade at the time of the hearing. She was initially referred by petitioner to the CSE in Community School District 19 in May, 1995, when she was in the first grade at P.S. 158, because of academic difficulties (Exhibit 10). In June, 1995, the school based support team (SBST) classified the child as learning disabled, and recommended that she be placed in a supplemental instructional services-I (SIS-I) program (resource room) (Exhibit 19). She began receiving resource room services in the second grade at P.S. 158 in September, 1995 (Exhibit 12). On November 1, 1996 she was referred to the CSE for a possible change in placement by her resource room teacher because of behavioral problems (Exhibit 12). That same month she was transferred pursuant to a district variance to P.S. 345 in Community School District 19, where she was placed in a regular education classroom with resource room services (Exhibit 13). In January, 1997, the SBST/CSE recommended that the child's classification be changed to emotionally disturbed, and that she be placed in a special class at P.S. 771 (Exhibit 2). The CSE met again on April 1, 1997. At that meeting, the child's mother indicated that she disagreed with the CSE's recommendation and requested an impartial hearing challenging the recommended classification and placement (Exhibit 3). The hearing took place on various dates in April and May, 1997. On September 10, 1997, the hearing officer rendered his decision upholding the CSE's recommendation for a change of classification and placement.

        On September 17, 1997, petitioner served a notice of intention to seek review upon respondent. However, she did not serve a petition upon respondent until August 4, 1998, nearly one year after the hearing officer’s decision. State regulation requires that a parent seeking review of a hearing officer’s decision serve a notice to seek review upon the board of education within thirty days after receipt of the decision sought to be reviewed, and to serve the petition within forty days after receipt of the hearing officer's decision (8 NYCRR 279.2 [b]). Although petitioner's notice of intention to seek review was served in a timely manner, her petition was not served until August 4, 1998. I find that petitioner's unexplained delay in serving her petition for more than ten months is unacceptable, especially in light of the fact that she did not file her appeal with the State Education Department until June 2, 1999, after almost another school year had ended. Article 89 of the Education Law, and its Federal counterpart, the Individuals with Disabilities Education Act, 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. Petitioner's substantial delay is inconsistent with the purposes of the Federal and State statutes (Application of a Child with a Disability, Appeal No. 98-52).

THE APPEAL IS DISMISSED.