02-106

         Petitioners appeal from the decision of an impartial hearing officer which found that their son was properly classified as speech impaired, that the program recommended by respondent's Committee on Special Education (CSE) was appropriate, and that their son could benefit in the recommended program without the additional intervention of home based applied behavioral analysis (ABA). The appeal must be dismissed as untimely.

        The child was nearly five years old when the hearing took place in August 2001. He received early intervention services prior to being classified as a preschool child with a disability (Exhibits 3, 4), and has been receiving home based ABA services since he turned three years old (Transcript p. 93). Respondent's CSE met in May 2001 to recommend a program for the child for the 2001-02 school year, as he would be transitioning to its jurisdiction when he turned five years old at the beginning of that school year (Exhibit 2). The CSE recommended that the child be classified as speech impaired and that he be placed in a 12:1 collaborative team teaching program with related services. It did not recommend continuation of the home based ABA services.

        Petitioners accepted the recommended placement (Exhibit 1). However, they requested a hearing seeking that the ABA services be continued (Exhibit 1). The hearing was held on August 6, 2001, and the hearing officer rendered her decision on October 10, 2001. She found that the child was appropriately classified as speech impaired, that the recommended program was appropriate, and that the child could benefit from the program without the requested ABA services. Petitioners appeal from the hearing officer's decision, claiming that their son should be classified as autistic and that his home based ABA services should be continued. In its answer, respondent asserts, as an affirmative defense, that the appeal is untimely. Although permitted to do so, petitioners did not file a reply responding to respondent's procedural defenses (8 NYCRR 279.6).

        The practice in state level reviews of hearings for students with disabilities is governed by Part 279 of the Regulations of the Commissioner of Education. Pursuant to section 279.2(b) of the Regulations of the Commissioner, when parents appeal to the State Review Officer (SRO), a notice of intention to seek review of an impartial hearing officer's decision must be served on the district within 30 days after receipt of the decision. A notice of intention to seek review is not required when the board of education intends to appeal from a hearing officer's decision (8 NYCRR 279.2[c]). When a notice of intention is required, the petition for review must be served at least ten days after such notice is served. No matter who the petitioner is, the petition must be served no later than 40 days after receipt of the hearing officer's decision (8 NYCRR 279.2[b]). Extensions of the time in which to serve a petition cannot be granted in advance of the commencement of an actual appeal (Application of a Child with a Disability, Appeal No. 97-85).

        An appeal to the SRO is initiated by filing, with the Office of Counsel of the State Education Department, the petition for review and the notice of intention to seek review, where required, together with proof of service of a copy of such documents upon the other party to the hearing (8 NYCRR 279.4). Section 279.1(a) of the Regulations of the Commissioner provides that the provisions of Parts 275 and 276 shall govern the practice on such reviews, except as provided in Part 279. Pursuant to section 275.16 of the Regulations of the Commissioner, a failure to commence an appeal within the time specified may be excused for good cause shown, and the reasons for the delay are to be set forth in the petition. There is no specific provision in Part 279 to the contrary. Accordingly, it is within the SRO's discretion to excuse an untimely petition for good cause shown when the reasons for the delay are set forth in the petition (Application of a Child with a Disability, Appeal No. 03-003; Application of a Child with a Disability, Appeal No. 02-063).

        Petitioners served a notice of intention to seek review upon respondent on November 13, 2001. However, they did not serve their petition upon respondent until November 18, 2002, more than one year later. I note that respondent continued to provide home based ABA services to the child during the 2001-02 and 2002-03 school years (Pet. ¶ 4). Respondent claims that the services were provided pursuant to the pendency provisions of the Individuals with Disabilities Education Act (IDEA) (Answer ¶ 14). As required, petitioners set forth in the petition the reason for the delay in serving the petition. They explained that during the year preceding the filing of the petition, the parties attempted settlement on several occasions which ultimately proved to be unsuccessful (Pet. ¶ 4). Respondent's answer includes an affirmative defense of untimeliness. I note that respondent served its answer almost six months after the petition was served, and after seven requests for extensions with the consent of petitioners were granted.

        Respondent contends that regardless of whether settlement negotiations occurred, service of the petition far exceeded the 40-day requirement. I agree. While the IDEA encourages parents and educators to work out their differences by using nonadversarial means (H.R. Rep. No. 105-95, at 82 [1997]), it also provides a due process mechanism to promptly resolve disputes so that children will receive appropriate special education services. Although I recognize the benefit of and encourage parties to engage in settlement negotiations, under the circumstances presented in this case, I am compelled to find that a delay of more than one year is too long. Accordingly, I find that the appeal is untimely (Application of a Child with a Disability, Appeal No. 99-39 [one year delay in serving petition untimely]; Application of a Child with a Disability, Appeal No. 98-52 [over one year delay in serving petition untimely]).

THE APPEAL IS DISMISSED.