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Application of the NEW YORK CITY DEPARTMENT OF EDUCATION for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability


Michael Best, Special Assistant Corporation Counsel, attorney for petitioner, Hilary Steuer, Esq., of counsel


            Petitioner, the New York City Department of Education, appeals from the decision of an impartial hearing officer which found that it failed to offer an appropriate educational program to respondent's son and ordered it to reimburse respondent for her son’s tuition costs at the Aaron School (Aaron) for the 2004-05 school year, including the summer 2004 session.  The appeal must be dismissed.

           At the time of the hearing, the child was seven years old and attending Aaron (Dist. Ex. 2, Parent Ex. G).  The child's eligibility for special education programs and services as a student with a speech impairment is not in dispute (8 NYCRR 200.1[zz][11]).  At the time of the hearing, the child’s individualized education program (IEP), dated February 12, 2004, recommended placement at the Gillen Brewer School, an approved nonpublic school, in a 12 month, 12:1:1 self-contained class for all academic subjects (Dist. Ex. 2).  Counseling, occupational therapy, and speech and language therapy were also recommended (id.).

            By letter dated September 13, 2004, respondent requested an impartial hearing alleging that petitioner offered an “invalid” IEP and an “inappropriate recommendation of placement” and requested tuition reimbursement and provision of transportation and related services (Parent Ex. L).  The impartial hearing was held on June 10, 2005.  The impartial hearing officer, in a decision dated July 14, 2005, found that respondent was entitled to reimbursement for the cost of the unilateral placement at Aaron for the 2004-05 school year, including the summer 2004 session.  This appeal ensued.

          At the outset a procedural matter must be addressed.  The Regulations of the Commissioner of Education require that when a board of education initiates an appeal from an impartial hearing officer’s decision the petition must be served upon the parent (8 NYCRR 279.2[c]).  Personal service of a petition for review on a respondent is required whether the petitioning party is a parent or a board of education (8 NYCRR 275.8, 279.1[a]; Application of the Bd. of Educ., Appeal No. 01-048).  Here, petitioner served the petition for review by overnight mail on the attorney who represented respondent in the hearing below (see 8 NYCRR 275.8, 279.2[c]). Petitioner did not personally serve respondent and there is no indication in the record that either respondent or the attorney who represented respondent in the hearing below consented to such service (Application of the Bd. of Educ., Appeal No. 05-067; Application of the Bd. of Educ., Appeal No. 04-058). Moreover, the record does not reflect that the attorney who represented the parent in the hearing below continues to represent respondent, or that petitioner attempted alternative service as provided for by regulation (8 NYCRR 275.8[a]).  Petitioner does not offer any explanation for its failure to personally serve the petition for review.  Respondent has not answered the petition.

         The failure to comply with the practice requirements of Part 279 of the state regulations may result in the dismissal of a petition for review by a State Review Officer (see, e.g.,Application of the Bd. of Educ., Appeal No. 01-048; see also Application of the Bd. of Educ., Appeal No. 05-073; 8 NYCRR 279.8[a], 279.13).  Petitioner is aware, or should be aware, of the procedural requirements associated with practice on review of hearings for students with disabilities, having recently had a petition dismissed for failure to comply with required procedures (seeApplication of the Bd. of Educ., Appeal No. 05-060 [dismissing petition for failure to timely file hearing record].

          Under the circumstances, I will dismiss the appeal for failure to personally serve the petition for review upon respondent, without a determination of the merits of petitioner’s claim.


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