02-096

         Petitioners appeal from an impartial hearing officer's decision denying their request to be reimbursed for the cost of their son's tuition at the Believe and Achieve Home School Resource Center (Believe and Achieve) for the 2001-02 school year. The appeal must be dismissed as untimely.

        At the time of the hearing, petitioners' son was almost 11 years old, classified by respondent's Committee on Special Education (CSE) as other health impaired, and enrolled in a fifth grade class at Believe and Achieve where he was unilaterally placed by his parents. Believe and Achieve is a private program which supplements the student's home instruction by providing reading, writing, mathematics, science, and social studies, while the parents provide art, music, physical education, fire safety, and drug abuse awareness (Transcript p. 202). Believe and Achieve has not been approved by the Commissioner of Education to contract with boards of education for the education of students with disabilities. There is no dispute about the student's classification.

        In March 2000, when the student was in the third grade, respondent developed an accommodation plan pursuant to section 504 of the Rehabilitation Act of 1973 (504 Plan) to address petitioners' son's need for extra time to complete class assignments and tests (Exhibit p. 1). When he was in the fourth grade at respondent's Center Street School, the student was referred to respondent's CSE, and at a meeting on November 9, 2000, the CSE recommended that the student be classified as other health impaired. The committee recommended one hour per day of resource room services (Transcript p. 17; see Exhibit p. 9). The student's individualized education program (IEP) also provided for the reading of directions and several classroom and testing modifications (Exhibit p. 11). On March 3, 2001, the CSE revised the student's IEP to, among other things, provide for the use of positive reinforcement as a classroom modification (Exhibit pp. 24, 27).

        By letter dated September 25, 2001, the student's parents filed a complaint with the State Education Department (SED) about respondent's failure to follow the student's IEP (Exhibit pp. 44-48). By letter dated November 30, 2001, SED issued a letter sustaining the complaint, finding that the supplemental aids and services listed in the student's IEP were not being provided to the student consistently (Exhibit pp. 49-51). SED directed respondent to submit a revised IEP with "clear accommodations" that would be provided to the student consistently (Exhibit p. 51). The CSE met on December 20, 2001 to promulgate an IEP that would be consistent with SED's directives (Transcript p. 224, Exhibit p. 62).

        By letter dated December 24, 2001, petitioners rejected the CSE's recommended IEP and requested an impartial hearing to obtain tuition reimbursement for their son's tutoring at Believe and Achieve, together with reimbursement for transportation expenses for the 2001-02 school year (Exhibit pp. 65-66). The hearing commenced on April 3, 2002 and concluded on May 1, 2002. In a decision dated August 23, 2002, the impartial hearing officer determined that respondent offered the student a free appropriate public education (FAPE), and he denied petitioners' request for reimbursement. The hearing officer further determined that petitioners failed to demonstrate the appropriateness of their placement at Believe and Achieve because of the restrictiveness of the placement. Petitioners request that the hearing officer's decision be annulled and that they be awarded reimbursement for tuition, transportation expenses, and attorneys' fees for the 2001-02 school year.

        Petitioners received the hearing officer's decision on August 28, 2002 (Pet. ¶ 5), and the petition in this appeal was served on respondent on October 10, 2002. In its answer, respondent raises the affirmative defense that the petition was not served in a timely manner (Answer ¶ 37). Article 89 of the Education Law and its federal counterpart, the Individuals with Disabilities Education Act (IDEA), provide a due process mechanism to promptly resolve the disputes that arise between parents and school districts, so that children will receive appropriate special education services. Section 279.2(b) of the Regulations of the Commissioner of Education requires that the petition in an appeal from an impartial hearing officer's decision must be served on the board of education, district clerk, or chief school officer within 40 days after receipt of the decision (Application of a Child with a Disability, Appeal No. 02-106). An untimely petition may be excused for good cause shown (Application of a Child with a Disability, Appeal No. 97-18; Application of the Bd. of Educ., Appeal No. 91-35), and the reasons for the delay are to be set forth in the petition (8 NYCRR 275.6, 279.1[a]). Petitioners offer no explanation in their petition for their delay in serving that pleading. Moreover, they have not filed a reply responding to respondent's affirmative defense that the petition is untimely (see 8 NYCRR 279.6). Therefore, I have no basis upon which to excuse their delay, and I find that the appeal is untimely (Application of a Child with a Disability, Appeal No. 03-005; Application of the Bd. of Educ., Appeal No. 00-050; Application of a Child with a Disability, Appeal No. 99-39; Application of a Child with a Disability, Appeal No. 98-52).¹

        Even if the appeal were not dismissed on procedural grounds, I would dismiss it on the merits since I find that the hearing officer's determination is supported by the record. The hearing officer determined that the student's November 2000 and March 8, 2001 IEPs lacked appropriate annual educational goals and measurable instructional objectives as required by 8 NYCRR 200.4(d)(2)(iii). Further, the hearing officer found that the IEP, as written, was not consistently implemented. Despite the inadequacies of the IEP and program implementation deficiencies, the hearing officer determined that the student was provided a FAPE and petitioners were not entitled to reimbursement. I agree.

        The hearing officer found that the student's fourth grade report card revealed grades that "were not only satisfactory but excellent" and that the grades reflected achievement with respect to the regular fourth grade curriculum (Exhibit p. 69). For example, the report card indicated that in academic areas his grades were "good" to "excellent" and that in all areas of personal and social development he achieved "satisfactory" or "excellent" ratings. Further, the hearing officer noted that the student's performance on the New York State fourth grade test, taken with the accommodations provided on his IEP, was consistent with his classroom achievement (Transcript pp. 40-41). Moreover, the record indicates that the student's performance on achievement tests demonstrated "gains in all areas" (Transcript p. 114). As noted by the hearing officer, there is no dispute pertaining to academic success. The record amply supports the hearing officer's conclusion that the student received significant benefit from his educational program despite respondent's failure to fully develop and fully implement his IEP.

        The hearing officer applied the proper legal analysis in determining whether the student received a FAPE (see Bd. of Educ. v Rowley, 458 U.S. 176, 206-07 [1982]), whether the parents were entitled to tuition reimbursement (see Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Application of a Child with a Disability, Appeal No. 00-008), and whether educational benefit was indicated in the record (Walczak v. Bd. of Educ., 142 F.3d 119, 130 [2d Cir. 1998]; Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; Application of a Child with a Disability, Appeal No. 99-055). Based upon my review of the entire hearing record, I find that the hearing was conducted in a manner consistent with the requirements of due process and that there is no need to modify the determination of the hearing officer (34 C.F.R. § 300.510[b][2]; Education Law § 4404[2]). I, therefore, adopt the findings of fact and determination of the hearing officer. I do, however, caution respondent to be mindful that it must make a good faith effort in assisting students to achieve the goals and objectives or benchmarks listed in their IEPs and must consistently provide the special education and related services in accordance with such IEPs (34 C.F.R. § 300.350[a]; 8 NYCRR 200.4[e][7]). More generally, I urge respondent to review its obligations under 34 C.F.R. §§ 300.340-.350 and 8 NYCRR 200.4. A review of 34 C.F.R. Part 300, Appendix A and of the New York State Education Department's "Sample Individualized Education Program and Guidance Document" (December 2002) might also prove useful.

THE APPEAL IS DISMISSED.