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Application of a CHILD WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of New York


Sonia Mendez Castro, Esq., attorney for petitioner

Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Paul Kleidman, Esq., of counsel


         Petitioner appeals from the decision of an impartial hearing officer which denied petitioner's request for tuition reimbursement for her daughter's attendance at Ramat Sinai High School (Sinai School) for the 2001-02 school year. The appeal must be dismissed as untimely.

        Petitioner's daughter was 16 years old at the time of the hearing and attending ninth grade at Sinai School, where she had been unilaterally placed by her parent for the 2001-02 school year. Sinai School is a private school in New Jersey for girls with learning disabilities. From kindergarten through eighth grade petitioner's daughter had been enrolled in a private religious elementary school. Prior to entry into high school, in June 2001, petitioner requested that her daughter be evaluated by respondent's Committee on Special Education (CSE). Due to some confusion regarding the community school district in which petitioner and her daughter resided, respondent did not develop an individualized education program (IEP) for the student until February 28, 2002. The CSE classified the student as learning disabled and recommended that she be placed in its public school system in a special class with related services (Exhibit 2). Petitioner rejected the recommendation and initiated a due process hearing, requesting tuition reimbursement for the 2001-02 school year at Sinai School.

        The hearing concluded on June 12, 2002. On July 18, 2002 the hearing officer rendered his decision finding that respondent had offered an appropriate educational program for the student and denying tuition reimbursement. On August 21, 2002 petitioner served a notice of intention to seek review on respondent; however, the petition was not served on respondent until December 30, 2002. Petitioner has offered no excuse for her delay of waiting over five months from the date of the hearing officer's decision to serve the petition on respondent.

        Section 279.2(b) of the Regulations of the Commissioner of Education provides that the notice of intention to seek review from an impartial hearing officer's decision must be served on the board of education, district clerk, or chief school officer within 30 days after receipt of the decision. The petition must be served on said parties at least 10 days after the notice of intention is served, but no later than 40 days after receipt of the decision.

        In the instant case, although the record does not reveal when petitioner received the decision, petitioner served respondent with a notice of intention to seek review within 34 days of the date of the decision. However, the petition in this appeal was not served upon respondent until 165 days after the date of the decision.

        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 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 a Child with a Disability, Appeal No. 97-18; Application of the Bd. of Educ., Appeal No. 91-35). Petitioner here offers no explanation for her delay of over five months in serving her petition. Therefore, I have no basis upon which to excuse her delay, and I find that the appeal is untimely (Application of the Bd. of Educ., Appeal No. 00-050 [90 day delay in serving petition 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]).


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