05-048

            Petitioner appeals from the decision of an impartial hearing officer which denied in part her claim for reimbursement of tutoring expenses and denied in full her claims for reimbursement of educational consultant expenses and for a private school placement for her daughter.  The Board of Education cross-appeals from the impartial hearing officer’s award of reimbursement to petitioner of part of the student’s tutoring expenses.  The appeal and cross-appeal must be dismissed.            

           At the time of the hearing, the student was 13 years old and a seventh grader in respondent’s middle school (Tr. p. 1184).  The student’s eligibility for special education programs and services as a student with multiple disabilities (see 8 NYCRR 200.1[zz][8]) is not in dispute.  The student has had prior classifications of speech or language impaired, learning disabled, and mental retardation (Dist. Exs. 72, 73, 95).  Respondent’s Committee on Special Education (CSE) changed the student's classification to that of a student with multiple disabilities at a May 11, 2004 meeting due to a diagnosis of an attention deficit hyperactivity disorder (ADHD) and her learning and language disabilities (Dist. Ex. 123).  At the time of the hearing, the student’s special education program, pursuant to an individualized education program (IEP) dated October 13, 2004, provided for placement in a 15:1 self-contained class for all academic subjects (Dist. Ex. 146 at p. 6).  Small group academic intervention services (AIS) in reading were also provided to the student (id. at p. 2).

           By letter dated September 24, 2004, petitioner requested an impartial hearing alleging that respondent failed to provide the student with an appropriate education and requested an order that the student be placed in a private educational setting at respondent’s expense and that respondent reimburse petitioner for outside evaluations and tutoring (Parent Ex. C).

           The hearing was held on six days between September 27, 2004 and January 14, 2005.  The impartial hearing officer, in a thorough decision dated March 21, 2005, found that petitioner was entitled to reimbursement for the cost of a private tutor for the 2004-05 school year, up to two hourly sessions per week, and to reimbursement for an independent evaluation. The impartial hearing officer denied petitioner’s request for the student’s placement in a private educational setting, denied reimbursement to petitioner for the cost of an educational consultant, and denied reimbursement to petitioner of an additional tutoring program (IHO Decision, pp. 44-54).  The impartial hearing officer remanded the matter to respondent’s CSE to develop a program consistent with his decision (IHO Decision, p. 54).

          On appeal, petitioner asserts that the impartial hearing officer erred in denying her request for reimbursement of the cost of a tutoring program, in denying reimbursement for the cost of an educational consultant, in remanding the matter to the CSE, and in denying the student placement in a private educational setting.  On cross-appeal, respondent asserts that the impartial hearing officer improperly awarded petitioner reimbursement for the cost of a private tutor and requests that the impartial hearing officer’s decision should be annulled.  Petitioner did not file a reply to respondent’s answer nor did petitioner file an answer to respondent’s cross-appeal.

          Respondent asserts as an affirmative defense in its answer that the notice of intention to seek review and the notice of petition and petition for review were served in an untimely manner and must be dismissed.  A notice of intention to seek review and 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).  The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed.  The petition for review shall be served upon the respondent within 35 days from the date of the decision sought to be reviewed (8 NYCRR 279.2[b]).  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 period (id.).  A State Review Officer, in his or her sole discretion, 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.).

         The impartial hearing officer’s decision is dated March 21, 2005 (IHO Decision, p. 54) and was mailed to the parties (Pet. ¶ 6).  Petitioner served the notice of intention to seek review on respondent on April 25, 2005 and served the notice with petition and petition for review on respondent on May 6, 2005 (see Petitioner's Aff. of Service sworn to May 6, 2005).  Under the applicable provisions of 8 NYCRR 279.2(b), petitioner did not timely serve these documents upon respondent.

         In her petition, petitioner requests that the delay in service of the notice of intention to seek review and of the petition be excused, stating that she had been undecided whether to file an appeal given the impartial hearing officer’s “split decision,” and that by the time she decided to appeal, her attorney was unavailable due to professional commitments to other clients (Pet. ¶ 10).  Petitioner also cites the size of the hearing record as justification for delay (id.). 

          I am not persuaded that the reasons for delay set forth by petitioner amount to good cause to excuse the untimely service of the notice of intention to seek review and the petition for review.  The petition is, therefore, dismissed (Application of a Child with a Disability, Appeal No. 04-103; 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).

          Respondent served its cross-appeal along with its answer on May 16, 2005 (see Respondent's Aff. of Service sworn to May 16, 2005).  While generally a cross-appeal is considered timely when it is served upon petitioner with an answer within 10 days after the date of service of a copy of the petition (see 8 NYCRR 279.4[b], 279.5), this is predicated upon the petition for review itself being timely served.  In this matter, the notice of intention to seek review and the petition for review were untimely and, therefore, the cross-appeal is untimely (see, e.g., Endicott Johnson Corporation v. Liberty Mutual Insurance Company, 116 F.3d 53 [2d Cir. 1997] [finding plaintiff’s untimely notice of appeal made defendant’s subsequent cross-appeal also untimely]).  The cross-appeal is, therefore, dismissed.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS DISMISSED.