Application of a CHILD WITH A DISABILITY, by her parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Vestal Central School District
Gina L. Blasdell, Esq., attorney for petitioners
Hogan, Sarzynski, Lynch, Surowka & DeWind, LLP, attorney for respondent, Edward J. Sarzynski, Esq., of counsel
Petitioners appeal from the decision of an impartial hearing officer which determined that the educational program respondent's Committee on Special Education (CSE) had recommended for their daughter for the 2005-06 school year was appropriate and which denied their requests to be reimbursed for related services and the cost of an independent educational evaluation (IEE). The appeal must be dismissed on procedural grounds and on the merits.
Respondent asserts as affirmative defenses in its answer that the petition for review was both improperly and untimely served. Petitioners did not file a reply to respondent's affirmative defenses (see 8 NYCRR 279.6) nor do they allege good cause for untimely service (see 8 NYCRR 279.13).
Personal service of a petition on a respondent is required whether the petitioning party is a parent or a board of education (8 NYCRR 275.8, 279.1[a], 279.13; Application of the Dept. of Educ., Appeal No. 06-078; Application of the Bd. of Educ., Appeal No. 05-082; Application of the Bd. of Educ., Appeal No. 01-048). Service of a petition upon a school district shall be made by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education of such school district, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR 279.2[b], 275[a]).
First, I will address respondent's defense of improper service. Respondent asserts that petitioners failed to personally serve the appropriate person identified by regulation to accept service. Here, petitioners personally served the notice with petition and petition on respondent's CSE chairperson on September 18, 2006 (Blasdell Aff.). Respondent's CSE chairperson is not a person that petitioners may serve (8 NYCRR 275.8[a]). Petitioners subsequently served respondent's superintendent on or about September 30, 2006. Petitioners did not effectuate proper service on September 18, 2006.
Respondent also asserts that the petition was not timely served. 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 petitioners, 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.). The impartial hearing officer's decision is dated August 9, 2006 (IHO Decision, p. 45). Here, the last day to serve the petition was September 18, 2006. However, the petition for review was not timely and properly served. Therefore, 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).
Although I will dismiss the petition for review as untimely, I have reviewed the hearing record and the merits of petitioners' appeal. Upon a review of the record as a whole, I find that petitioners' assertions are not supported by the record. Based upon my careful review of the record and the thorough and well-reasoned decision of the impartial hearing officer, I find that the impartial hearing was conducted in a manner consistent with the requirements of due process, and that there is no need to modify the determinations of the impartial hearing officer (34 C.F.R. § 300.514[b]; N.Y. Educ. Law § 4404). I find that the decision of the impartial hearing officer demonstrates that he carefully reviewed the allegations contained in the due process complaint notice and applied a proper legal analysis in reaching his conclusions. I, therefore, adopt the impartial hearing officer’s final determinations and order of dismissal of petitioners' claims.
I have considered petitioners' remaining contentions and I find them to be without merit.1
1 Petitioners also contend that the "four corners" of the impartial hearing officer's decision contains numerous errors (Pet. pp. 15-17). While it is true that the impartial hearing officer's lengthy 45 page decision contained typographical errors and a few minor incorrect legal citations, this amounts to harmless error given his correct conclusions (see Application of a Child Suspected of Having a Disability, Appeal No. 05-122).