Application of a CHILD WITH A DISABILITY, by his parents, 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 Buffalo
Goldstein, Ackerhalt & Pletcher, LLP, attorney for petitioners, Arthur H. Ackerhalt and Elizabeth R. Wright, Esqs., of counsel
Hon. Michael B. Risman, Corporation Counsel, attorney for respondent, Denise M. Malican, Esq., of counsel
Petitioners appeal from the decision of an impartial hearing officer which denied their request for additional educational services and which did not order that respondent provide their son with a specific level of services, although it determined that the educational program recommended by respondent’s Committee on Special Education (CSE) for their son for the 2004-05 school year was not appropriate. Respondent cross-appeals from that portion of the impartial hearing officer's decision which found that it denied petitioners’ son a free appropriate public education (FAPE). The appeal must be dismissed. The cross-appeal must be dismissed.
At the time of the impartial hearing, the child was nine years old and in third grade (Tr. p. 379; Parent Ex. 10 at p. 1). The child’s eligibility for special education services and classification as a student with a learning disability (LD) are not in dispute (see 8 NYCRR 200.1[zz]). According to petitioners, the child had been diagnosed with a variety of disorders, including a central auditory processing deficit, microcephalia, and hypotonia (Tr. pp. 112-13). During the 2003-04 school year, the child was receiving special education services according to an individualized education program (IEP) developed by respondent's CSE which classified him as a child with a speech or language impairment and placed him at Summit Educational Resources (Summit), a private agency, in a 6:1+1 special education class (Parent Ex. 11; see Tr. p. 218).
On April 23, 2004 the CSE met to develop the child's program for the 2004-05 school year (Parent Ex. 10). The CSE reclassified the child as a child with a learning disability (Tr. pp. 73-74) and developed an IEP that placed him in respondent’s 15:1 language delayed/learning disabled (LD/LD) special education class (Parent Ex. 10 at p. 7). The 2004-05 IEP provided the child with related services consisting of 30 minutes of individual speech-language therapy twice every six days, 30 minutes of group speech-language therapy four times every six days,1 and 30 minutes of indirect vision consultation two times throughout the school year (Parent Ex. 10 at pp. 8A-8B).
On the day before the first day of school, the child's mother telephoned the special education teacher of the child's recommended class and was informed that the child's class was structured differently than the class she had observed in April 2004 (Tr. pp. 120, 122-25, see Tr. p. 161). She was informed that the child would remain in a classroom with a 15:1 student to teacher ratio, but instead of third and fourth graders, the LD/LD class would consist of fourth and fifth graders (Tr. pp. 123, 179), and that due to district-wide staffing modifications it would be staffed full time solely by the special education teacher, with the speech therapist dividing her time between that class and another, and there would be no teacher's aide (Tr. pp. 122-25, 150). By letter dated September 24, 2004 petitioners, through their attorney, notified respondent that they were rejecting respondent’s recommended program and they requested a due process hearing (Parent Ex. 9, see also Parent Ex. 7).
The impartial hearing was bifurcated.2 The second part of the bifurcated hearing, which is the subject of this appeal, was held on April 18 and 19, 2005. Petitioners asserted at the impartial hearing that respondent denied their son a FAPE because it failed to implement his IEP as described by respondent’s representatives at the April 23, 2004 CSE meeting and did not provide notice to petitioners of material alterations in the IEP (IHO Decision, p. 2). Respondent asserted that the IEP was implemented as written, proper notice was provided to petitioners and at the April 23, 2004 CSE meeting, its representatives had informed petitioners that the IEP did not specify a full-time speech and language teacher or classroom aide (id.). The May 30, 2005 impartial hearing officer’s decision held that the staffing changes to the child's 2004-05 program were a material alteration to the 2004-05 IEP, the alteration occurred without notice to petitioners and without their consent, and that the implementation of the child's 2004-05 IEP resulted in a denial of a FAPE (IHO Decision, p. 3). The impartial hearing officer declined to grant petitioners' request for compensatory services but ordered the CSE to convene immediately in order to evaluate the child’s needs, and offer and implement a FAPE while recognizing the difficulties the child experienced regarding the transition from his private placement and the effects of classroom staffing changes to his classroom during the 2004-05 school year (id.).
On appeal, petitioners assert that the impartial hearing officer improperly declined to order the relief necessary to provide the child with a FAPE in the least restrictive environment. Specifically, petitioners allege that although the CSE reconvened on June 20, 2005 as ordered by the impartial hearing officer, it failed to implement the decision of the impartial hearing officer by recommending the same placement for the 2005-06 school year as was offered in the 2004-05 IEP which the impartial hearing officer had determined to be inappropriate.
Respondent asserts as an affirmative defense that the notice of intention to seek review, the notice with petition and petition for review were served in an untimely manner and must be dismissed. Respondent also asserts as affirmative defenses that the impartial hearing officer had no authority to issue any order subsequent to her May 30, 2005 decision and that petitioners are not an aggrieved party.
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). 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. 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 (8 NYCRR 279.2[b]). 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 May 30, 2005 (IHO Decision, p. 1) and was mailed to the parties (id.). Petitioners’ notice of intention to seek review was served on July 11, 2005, and their petition for review, which should have been served on or before July 11, 2005, was served on August 5, 2005. The impartial hearing officer issued a “supplemental” decision and order dated July 25, 2005 in which she entered into evidence as a hearing exhibit the audio tapes of a June 20, 2005 CSE meeting and extended the 35-day time line for petitioners to appeal to begin on July 8, 2005 (Pet. Ex. C). Petitioners ask that the petition be accepted based upon the impartial hearing officer's extension of the 35-day time line in her July 25, 2005 “supplemental” decision. Petitioners assert that respondent was obligated to implement or appeal the impartial hearing officer’s decision and further assert that respondent did neither. Petitioners state that they relied upon their expectation that respondent would appeal and, therefore, did not appeal within the time frame set forth in state regulation. I do not find that this constitutes good cause and decline to excuse petitioners’ untimely appeal.
The July 25, 2005 “supplemental” decision was issued after the final date for serving a petition for review of the May 30, 2005 decision. 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 (see 34 C.R.R. § 300.510[a]; see 8 NYCRR 200.5[i][v]) (Application of a Child with a Disability, Appeal No. 05-022).
Upon the facts before me, I find that the May 30, 2005 decision is the final determination of the issues from which petitioners seek review, and that such decision on those issues became final in the absence of a timely appeal. In consideration of the foregoing, I will not excuse petitioners' delay, and I find that the appeal is untimely (Application of a Child with a Disability, Appeal No. 05-048; 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).
In addition, respondent served its cross-appeal along with its answer on August 16, 2005 (see Respondent's Aff. of Service sworn to Aug. 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] and 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.
As a final matter, I note that enforcement of prior orders of an impartial hearing officer and/or the State Review Officer are not properly determined by the State Review Officer (seeApplication of a Child Suspected of Having a Disability, Appeal No. 03-071); Application of a Child with a Disability, Appeal No. 01-086; Application of the Bd. of Educ., Appeal No. 99-4). Therefore, I find petitioners' requests are not properly before me (Application of a Child with a Disability, Appeal No. 04-100). The enforcement of an impartial hearing officer's order can properly be sought by filing an administrative complaint with the State Education Department's Office of Vocational and Educational Services for Individuals with Disabilities pursuant to applicable federal and state regulations (see 34 C.F.R. §§ 300.660-300.662; 8 NYCRR 200.5[k]), or in federal court under 42 U.S.C. § 1983 (see A.T. v. New York State Educ. Dep't., 1998 WL 765371 at *7 [E.D.N.Y. August 4, 1998]; Blazejewski v. Bd. of Educ., 560 F. Supp. 701 [W.D.N.Y. 1983]; see Application of the Bd. of Educ., Appeal No. 04-085; Application of the Bd. of Educ., Appeal No. 99-004).
I have considered petitioners' and respondent's remaining contentions and I find them to be without merit.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS DISMISSED.
1 Petitioners' son actually received group speech-language therapy every day, instead of four out of six days, in the class (Tr. p. 185).
2 The first part of the bifurcated hearing, which addressed the sole issue of pendency placement, was held on November 19 and 22, 2004 and was addressed in Application of the Bd. of Educ., Appeal No. 05-006.