Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Wappingers Central School District
Donoghue, Thomas, Auslander & Drohan, attorney for respondent, Daniel Petigrow, Esq., of counsel
Petitioner appeals from a decision of an impartial hearing officer which denied her request for compensatory education for the 2000-01, 2001-02, 2002-03, and 2003-04 school years. The appeal must be dismissed.
The impartial hearing in this matter convened over four years ago when petitioner's son was 15 years old (Dist. Ex. 16 at p. 1), on March 1, 2001, pursuant to a request for a hearing made on or about December 1, 2000 (IHO Ex. 6). The hearing concluded on August 12, 2004. Petitioner’s son is currently 19 years old.
The student's eligibility for special education and his classification as a student with a speech or language impairment (Dist. Ex. 15 at p. 1) are not in dispute in this appeal (see 8 NYCRR 200.1[zz]). Part of the student's education history is described in Application of a Child with a Disability, Appeal No. 95-29, Application of a Child with a Disability, Appeal No. 98-08, Application of the Bd. of Educ., Appeal No. 98-36, and Application of a Child with a Disability, Appeal No. 00-013, and will not be repeated here in detail.
At the time the impartial hearing commenced in this action, petitioner’s son had been expelled from his last educational placement, a district initiated private residential placement, and his mother contested the appropriateness of alternative placements and services offered by respondent (Tr. pp. 3-5, 1145-48, 1151-53; Dist. Exs. 4 at p. 3, 6, 7, 8, 9, 11, 14, 15 at p. 1, 18, 19, 20). The most recent IEP in the record was formulated by a Committee on Special Education (CSE) on September 25, 2003 (Dist. Ex. 54). It recommended that the student attend a 12:1+1 self-contained special class at respondent’s high school with daily individual reading instruction. The student was to receive individual speech therapy and was determined to be eligible for extended school year services (home instruction) through Academic Solutions daily for 3 hours per day.
The hearing request that initiated the due process proceedings below claimed that respondent failed to: 1) provide a free appropriate public education (FAPE); 2) conduct an annual review by the CSE; 3) consider transitional planning; and 4) provide assistive technology equipment (IHO Ex. 6). Petitioner sought an award of compensatory education.
By decision dated January 7, 2005, the impartial hearing officer found the compensatory education claim arising from the 2001-02 school year to be time barred by the statute of limitations (IHO Decision, p. 8). He further found that the district had established that at CSE meetings on July 15, 2002, May 1, 2003, May 27, 2003, and September 25, 2003, respondent offered the student an individualized education program (IEP) with goals and objectives that offered him a free appropriate public education (FAPE) in the least restrictive environment (id.). The impartial hearing officer determined that the student was not yet 21 years old and still eligible to receive a FAPE (IHO Decision, p. 9). He further determined that tutoring services and assistive technology were still available to the student (IHO Decision, p. 9). The impartial hearing officer denied an award of compensatory education services (IHO Decision, p. 9).
On appeal, petitioner requests that the decision of the impartial hearing officer be annulled and that petitioner's son be awarded compensatory education and related services due to a denial FAPE for the 2000-01, 2001-02, 2002-03 and 2003-04 school years.
At the outset, a procedural matter must be addressed. Respondent has raised an affirmative defense asserting that the appeal was commenced in an untimely manner and must be dismissed. A petition for review to the State Review Officer must comply with the timelines specified in section 279.2 of the Regulations of the Commissioner of Education (8 NYCRR 279.13). A petition for review shall be served upon the respondent within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25 or 35 day period, as required by 8 NYCRR 279.2(b). A State Review Officer may excuse a failure to timely seek review within the time specified for good cause shown (8 NYCRR 279.13). The reasons for the failure to timely seek review shall be set forth in the petition (id.). An answer to a petition may interpose procedural defenses and a reply may be submitted in response to defenses raised in the answer (8 NYCRR 279.6).
The impartial hearing officer’s decision is dated January 7, 2005. The record reveals that the decision was served on petitioner by mail. On February 17, 2005, petitioner served respondent with a notice with petition and petition for review. The petition was served beyond the service deadline established by state regulation. Petitioner offers no excuse or good cause in her petition for the late service of the petition for review. As an affirmative defense respondent has asserted that the appeal must be dismissed as untimely. Petitioner has not filed a reply to respondent’s procedural defense (8 NYCRR 279.6). Petitioner offers no explanation for the delay in serving the petition for review; therefore, I have no basis upon which to excuse the delay. I find that the appeal is untimely and the petition is, therefore, dismissed (Application of a Child with a Disability, Appeal No. 04-067; Application of a Child with a Disability, Appeal No. 03-109; Application of a Child with a Disability, Appeal No. 02-096).1 Both federal and state regulations provide that an impartial hearing officer's decision is final, except that either party may appeal from such decision to the State Review Officer (20 U.S.C. § 1415[i][A]; 34 C.F.R. § 300.510[a]; 8 NYCRR 200.5[i][v]).2 Upon the facts before me, I find that the January 7, 2005 decision is the final determination of the issues from which petitioner seeks review, and that such decision on those issues became final in the absence of a timely appeal.
Notwithstanding the above, while I do not make any determination on the merits of this appeal, I note I have reviewed the extensive record in this matter. It is not clear from the record, in the absence of a current IEP, whether petitioner’s son is receiving, or being offered, special education services from respondent pursuant to an IEP. If the student is currently entitled to special education services, I encourage both parties to work cooperatively in developing an appropriate program at the next CSE meeting. To the extent determined appropriate, the student should participate in the meeting (34 C.F.R. 300.344 [a]). Moreover, I encourage the CSE to consider the student's needs at the next CSE meeting in the following areas: speech-language skills; including expressive and receptive language, pragmatic language, auditory perception and auditory memory; writing; and transition planning. I encourage respondent to provide appropriate services and I urge petitioner to facilitate, not impede, the delivery of such services. If the student’s needs remain as mentioned above, upon review of his educational program, the CSE is further encouraged to review the Office of Vocational and Educational Services for Individuals with Disabilities [VESID], “Sample Individualized Education Program and Guidance Document” [December 2002] pages 54-61 (goals and objectives) and pages 79-83 (transition planning) as well as 34 C.F.R. Part 300, Appendix A, Notice of Interpretation Questions 1 (goals and objectives) and 11-13 (transition planning).
THE APPEAL IS DISMISSED.
1 Petitioner is an experienced advocate who has been given notice regarding the procedural requirements of the appeals process. Petitioner has been involved in four prior petitions for review by the State Review Officer regarding her son, who is the subject of this appeal (Application of a Child with a Disability, Appeal No. 00-013; Application of the Bd. of Educ., Appeal No. 98-36; Application of a Child with a Disability, Appeal No. 98-08, Application of a Child with a Disability, Appeal No. 95-29). She has brought petitions for review regarding her other children as well (Application of a Child with a Disability, Appeal No. 98-6; Application of a Child with a Disability, Appeal No. 98-1; Application of a Child with a Disability, Appeal No. 97-13; Application of a Child with a Disability, Appeal No. 96-76; Application of a Child with a Disability, Appeal No. 96-51; Application of a Child with a Disability, Appeal No. 96-43; Application of a Child with a Disability, Appeal No. 96-38; Application of a Child with a Disability, Appeal No. 94-40; Application of a Child with a Disability, Appeal No. 94-39; Application of a Child with a Handicapping Condition, Appeal No. 92-32; Application of a Child with a Handicapping Condition, Appeal No. 92-19; (Application of a Child with a Handicapping Condition, Appeal No. 92-18).
Petitioner has also brought petitions for review as an advocate for other parents (Application of a Child with a Disability, Appeal No. 04-103; Application of a Child with a Disability, Appeal No. 04-099). In Application of a Child with a Disability, Appeal No. 04-103, dated January 5, 2005 and issued before petitioner's untimely submission of her petition in this appeal, the State Review Officer dismissed the petition for review because it was not commenced in a timely manner and good cause for the untimeliness was not asserted.
2 I note that the impartial hearing officer's decision notice incorrectly advised the parties that they could appeal the decision "within 30 days" (IHO Decision, p. 10). This is not the applicable standard for determining timeliness of a petition for review. However, if petitioner had complied with the time line as identified by the impartial hearing officer for serving a petition for review, petitioner’s appeal would have been timely under state regulations (8 NYCRR 279.2[b]). The record does not reflect that petitioner relied to her detriment on the impartial hearing officer’s notice of appeal deadlines, nor has petitioner asserted such an argument (compare Application of a Child with a Disability, Appeal No. 04-051[excusing the failure to timely appeal, in part, because of detrimental reliance on erroneous hearing officer notice advising of longer time to appeal than timeline established by state regulation]).