06-097
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 Hempstead Union Free School District
Frank X. Kilgannon, P.C., attorney for petitioner, Frank X. Kilgannon, Esq., of counsel
Lamb & Barnosky, L.L.P., attorney for respondent, Frank H. Cohen, Esq., of counsel
Decision
Petitioner appeals from the decision of an impartial hearing officer which denied her request to be reimbursed for her son's tuition costs at the Vincent Smith School (VSS) for the 2005-06 school year. The appeal must be dismissed.
Respondent asserts as an affirmative defense in its answer that the petition for review was untimely served. Petitioner does not allege good cause for untimely service (see 8 NYCRR 279.13), nor has she filed a reply to respondent's affirmative defense (see 8 NYCRR 279.6).
A petition for review by a State Review Officer must comply with the timelines specified in the state regulations (see 8 NYCRR 279.2). The petition must be served upon the respondent within 35 days from the date of the impartial hearing officer's decision sought to be reviewed (8 NYCRR 279.2[c]). If the impartial hearing officer's 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 good cause for the failure to timely seek review must be set forth in the petition (id.).
Here, the impartial hearing officer's decision is dated June 26, 2006 (IHO Decision, p. 23). Assuming the decision was mailed, the last day to serve the petition was August 7, 2006.1 Petitioner's affidavit of service shows that the date of service was August 29, 2006. Therefore, the petition for review was not timely served. In the absence of good cause stated, I will dismiss the appeal as untimely (Application of a Child with a Disability, Appeal No. 04-067).
In addition, the petition does not comport with section 279.4(a) of the Regulations of the Commissioner of Education (8 NYCRR 279.4[a]). Section 279.4(a) provides, in pertinent part: "[t]he petition for review shall clearly indicate the reasons for challenging the impartial hearing officer's decision, identifying the findings, conclusions and orders to which exceptions are taken, and shall briefly indicate what relief should be granted by the State Review Officer to the petitioner." In this appeal, petitioner is represented by counsel. The statements in the petition are unduly vague and ambiguous as to preclude respondent from effectively formulating a responsive answer. Other than asserting in general terms that challenge the impartial hearing officer's decision and request reversal, petitioner does not provide any particulars as to the reasons why she challenges the impartial hearing officer's decision. For example, one of petitioner's four general statements merely asserts that the impartial hearing officer "failed to comply with the rules and regulations of the Department of Education," without any further specification (Pet. ¶ 11[D]). The petition for review is required to "clearly indicate the reasons for challenging the impartial hearing officer's decision" (8 NYCRR 279.4[a]). The petition in this case fails to meet this requirement (Application of a Child with A Disability, Appeal No.06-096).
Although I will dismiss the petition as untimely, I have reviewed the hearing record and the merits of petitioner's appeal. Based upon my careful review of the record as a whole, and the decision of the impartial hearing officer, I agree with the conclusion of the impartial hearing officer that the individualized education program created by respondent's CSE was reasonably calculated to provide petitioner's son educational benefit. I further agree that the procedural inadequacies found by the impartial hearing officer did not impede the child's right to a free appropriate public education (FAPE); significantly impede the petitioner's opportunity to participate in the decision making process regarding the provision of a FAPE for her son; or cause a deprivation of educational benefit to petitioner's son (20 U.S.C. § 1415 [f][3][E][ii]2; see Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377 [2d Cir. 2003]; 34 C.F.R. § 300.513 [a][2]3).
THE APPEAL IS DISMISSED.
1 Calculating 35 days from the date of the decision, excluding the date of mailing and subsequent 4 days thereto, leads to an August 5, 2006 service due date. However, because August 5, 2006 was a Saturday, service on Monday, August 7, 2006, would have been permitted as the final day for timely service (8 NYCRR 279.11).
2 On December 3, 2004, Congress amended the IDEA, however, the amendments did not take effect until July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 [2004], Pub. L. No. 108-446, 118 Stat. 2647). The relevant events in the instant appeal took place prior to the effective date of the 2004 amendments to the IDEA. Therefore, the provisions of the IDEA 2004 do not apply. However, for convenience, citations herein refer to the statute as amended.
3 The Code of Federal Regulations (34 C.F.R Parts 300 and 301) has been amended to implement changes made to the Individuals with Disabilities Education Act, as amended by the Individuals with Disabilities Education Improvement Act of 2004. The amended regulations became effective October 13, 2006. In this case, none of the new provisions contained in the amended regulations are applicable because all relevant events occurred prior to the effective date of the new regulations. However, for convenience, citations herein refer to the regulations as amended because the regulations have been reorganized and renumbered.
Topical Index
1 Calculating 35 days from the date of the decision, excluding the date of mailing and subsequent 4 days thereto, leads to an August 5, 2006 service due date. However, because August 5, 2006 was a Saturday, service on Monday, August 7, 2006, would have been permitted as the final day for timely service (8 NYCRR 279.11).
2 On December 3, 2004, Congress amended the IDEA, however, the amendments did not take effect until July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 [2004], Pub. L. No. 108-446, 118 Stat. 2647). The relevant events in the instant appeal took place prior to the effective date of the 2004 amendments to the IDEA. Therefore, the provisions of the IDEA 2004 do not apply. However, for convenience, citations herein refer to the statute as amended.
3 The Code of Federal Regulations (34 C.F.R Parts 300 and 301) has been amended to implement changes made to the Individuals with Disabilities Education Act, as amended by the Individuals with Disabilities Education Improvement Act of 2004. The amended regulations became effective October 13, 2006. In this case, none of the new provisions contained in the amended regulations are applicable because all relevant events occurred prior to the effective date of the new regulations. However, for convenience, citations herein refer to the regulations as amended because the regulations have been reorganized and renumbered.