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Application of the BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability


Hon. Michael D. Hess, Corporation Counsel, attorney for petitioner, Michele Titus, Esq., of counsel

Neal H. Rosenberg, Esq., attorney for respondent


       Petitioner appeals from the decision of an impartial hearing officer, which granted respondent's request for tuition reimbursement for the cost of her daughter's tuition at the Steven Gaynor School (Gaynor) for the 1999-2000 school year. The appeal must be dismissed as untimely.

        Respondent's daughter was ten years old and in the equivalent of fourth grade at Gaynor at the time of the hearing. The student’s prior educational history was set forth in a prior appeal to the State Review Officer (Application of a Child with a Disability, Appeal No. 99-14). She was initially referred to petitioner’s Committee on Special Education (CSE) in 1997. Although the CSE reportedly recommended that the student be classified as learning disabled and placed in modified instructional services-I (MIS-I) class for the 1997-98 school year, her parent chose to enroll her in Gaynor. Gaynor specializes in instructing children with disabilities, but has not been approved by the State Education Department to provide such instruction. In June 1998, the CSE recommended that the student be placed in a Supplemental Instructional Services-I (SIS-I), i.e., resource room, program for the 1998-99 school year. The parent enrolled the student in Gaynor for the 1998-99 school year. After an impartial hearing officer had upheld the appropriateness of the educational program recommended by the CSE, the student’s parent appealed to the State Review Officer, seeking an award of tuition reimbursement for the 1998-99 school. The appeal was sustained, and the Board of Education was ordered to reimburse the parent for the cost of the student’s tuition at Gaynor for the 1998-1999 school year (Application of a Child with a Disability, Appeal No. 99-14).

        In December 1998, a psychologist who had evaluated the student reported that she was capable of doing age appropriate academic work, but had a poor self-image and was anxious about her school performance (Exhibit 1). An educational evaluator reported that the student was in need of direct remediation in reading because of delays in her word identification and passage comprehension skills. The student had strong math skills (Exhibit 3). A CSE observer of the student in her reading class at Gaynor in February 1999 reported that she worked slowly and made a number of errors (Exhibit 2). The student’s speech/language skills were also evaluated in February 1999 (Exhibit 4). The evaluator reported that the student manifested deficits in her receptive and expressive language skills, involving auditory comprehension and understanding semantic relationships. She recommended that the student receive speech/language therapy twice per week in a group.

        On March 5, 1999, the CSE conducted its annual review. It recommended a placement in a 15:1 MIS-I class at P.S. 41, with three 30-minute sessions of speech/language therapy in a group of three per week, for the student during the 1999-2000 school year. Instead, respondent continued her daughter's placement at Gaynor and requested a hearing, seeking tuition reimbursement for her daughter's placement at Gaynor for the 1999-2000 school year. The hearing was held on February 14 and 24, and March 3, 2000.

        On April 27, 2000, the hearing officer rendered her decision. She noted that the parties agreed that the student required instruction in a self-contained class, but disagreed about the size of the class. The hearing officer found that the proposed placement in an MIS-I class was inappropriate because the class could contain as many as 15 pupils. In addition, she found that the CSE’s recommendation was deficient because it did not include the related service of occupational therapy. The hearing officer further found Gaynor to be an appropriate placement for the student. She awarded tuition reimbursement and transportation costs to respondent for the 1999-2000 school year.

        Petitioner commenced this appeal by serving its petition and accompanying papers upon respondent on August 3, 2000. Respondent has raised the affirmative defense of untimeliness. A board of education seeking review of a hearing officer's decision must serve its petition and accompanying papers upon the parent within 40 days after the board's receipt of the hearing officer's decision (8 NYCRR 279.2[c]). The petition in this appeal was served upon respondent more than 90 days after the date of the decision. The record does not reveal when petitioner received the decision. I note that petitioner has not replied to the affirmative defense as permitted by 8 NYCRR 279.6.

        In her affidavit of service, petitioner’s attorney states that the appeal is from a decision dated June 28, 2000. She is apparently referring to the fact that on June 27, 2000, the parent’s attorney asked petitioner’s Office of Impartial Hearings to make a correction on the first page of the hearing officer’s decision to reflect the appearances by the parties’ attorneys at the hearing (Exhibit B to answer). On June 28, 2000, the decision was amended only with respect to the appearances (Exhibit C to the answer). Accordingly, I find that the correction was entirely technical in nature, and that the decision from which petitioner should have appealed was dated April 27, 2000.

        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. An untimely petition may be excused for good cause shown (Application of the Board of Education of the Wappingers Central School District, Appeal No. 91-35; Application of a Child with a Disability, Appeal No. 97-18). However, petitioner offers no explanation for its delay. Therefore, I will not excuse its delay, and I find that the appeal is untimely (Application of a Child with a Disability, Appeal No. 99-39).


Topical Index

District Appeal
Preliminary MattersPleadingsTimeliness of Petition