05-034

           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 Kildonan School (Kildonan) for the 2004-05 school year and for transportation costs to Kildonan from January 2004 to June 2004. Petitioner further appeals the dismissal of her application to withdraw her hearing request. The appeal must be dismissed as untimely.

            The student was 13 years old and in the eighth grade (Dist. Ex. 2 at p. 1) when the impartial hearing began in December 2004.  The student's prior educational history is described in Application of the Bd. of Educ., Appeal No. 04-068, and will not be repeated here in detail.  Briefly, petitioner's son was diagnosed with an attention deficit hyperactivity disorder (ADHD) in kindergarten (Dist. Ex. 4 at p. 1), which has been treated with a variety of medications according to a psychological evaluation conducted in August 2003 (Dist. Ex. 4 at p. 1; Tr. p. 89).  Current areas in need of improvement include working, visual and short-term auditory memory as well as reasoning, spelling, comprehension and writing skills (Dist. Ex. 2 at p. 3).  On August 31, 2004 respondent's Committee on Special Education (CSE) developed an individualized education program (IEP) for the 2004-05 school year which classified the student as learning disabled (LD) and placed him at Taconic Hills Middle School in eighth grade regular education classes, with daily 5:1 resource room services, direct consultant teacher services for English class, and speech-language services for 40 minutes twice per week (Dist. Ex 2 at pp. 1, 10). The student's eligibility for special education and his classification as a student with LD are not in dispute in this appeal.

            On September 8, 2004 respondent received a letter from petitioner addressed to respondent's CSE in which she stated that she was rejecting the proposed 2004-05 IEP for her son and that she had enrolled her son again in the Kildonan School for the 2004-05 school year (IHO Ex. 1).  Petitioner also requested an impartial hearing to seek reimbursement for tuition and related services for the 2004-05 school year and for transportation costs for the 2003-04 school year (id.).

            In a letter dated September 20, 2004 to counsel for both parties, the impartial hearing officer notified them that he had been appointed as the impartial hearing officer and that he was attempting to schedule a pre-hearing conference call on September 23, 2004 (IHO Ex. 3).  Both counsel participated in the conference call and during the call, petitioner's counsel informed the impartial hearing officer that she would not be representing petitioner in the matter before him (Tr. p. 12; IHO Ex. 7). The impartial hearing officer called petitioner and asked if she was representing herself or if she was seeking new counsel (IHO Ex. 7).  According to petitioner, she first became aware that she was without counsel when the impartial hearing officer called her to inquire as to who would be representing her (IHO Ex. 8). She indicated that at that point, she told the impartial hearing officer that she wished to withdraw her request for the impartial hearing (IHO Ex. 11 at p. 2, IHO Ex. 15 at p. 1). By letter dated September 23, 2004 to respondent's CSE, petitioner informed the CSE that she was withdrawing, without prejudice, her request for an impartial hearing for her son while she awaited the outcome of respondent's appeal to the State Review Officer concerning the 2003-04 school year (IHO Ex. 4).  In that appeal, respondent had appealed an impartial hearing officer’s decision which awarded petitioner tuition reimbursement for her son for a portion of the 2003-04 school year (id.).  In the letter to the CSE, petitioner also requested that transportation for her son's placement at the Kildonan School be provided to and from her home and that she be provided with a list of free and/or low cost legal services (id.).

            By letter dated September 27, 2004, respondent provided petitioner with what it characterized as “another” list of free and low cost attorneys per her request (Dist. Ex. 9).  Two days later, by letter dated September 29, 2004, respondent's counsel forwarded to the impartial hearing officer, a copy of petitioner's letter to respondent’s CSE, which stated that petitioner was withdrawing without prejudice, her request for an impartial hearing (IHO Ex. 6 at p. 1).  Respondent stated that it considered any delay in the commencement of the impartial hearing highly prejudicial and that the appeal which was before the State Review Officer was a procedural dispute and therefore it did not anticipate that the decision would have any bearing on petitioner's impartial hearing request regarding the 2004-05 IEP (id.).

            In an October 6, 2004 letter to both parties, the impartial hearing officer denied petitioner’s application to withdraw her impartial hearing request, asserting that a withdrawal would intentionally delay the impartial hearing and deprive respondent the right to promptly rectify any errors or omissions regarding the IEP that was in dispute (IHO Ex. 7 at p. 1).  The impartial hearing officer directed petitioner to notify the district and himself in writing, by October 15, 2004, as to whether she would proceed with the impartial hearing, and if she were going to proceed, whether it would be with or without an attorney, and that he was treating the withdrawal request as a request for an extension of the timeline for the impartial hearing (IHO Ex. 7 at p. 2).

            By letter dated October 15, 2004 petitioner notified respondent's attorney and the impartial hearing officer of her concerns regarding the denial of her application to withdraw the impartial hearing request (IHO Ex. 8).  Petitioner explained that she thought she was required to ask for an impartial hearing once she rejected respondent's IEP and requested that the impartial hearing be postponed until she was able to observe the recommended program in the 2004-05 IEP which was not "up and running" at the start of the school year.  Petitioner then expressed her concern that it would be "prejudicial" to require her to go forward with the impartial hearing without legal representation and without the opportunity to observe the program being offered by respondent.

            According to petitioner’s statement at the impartial hearing, during a conference call on October 22, 2004, respondent had given her permission to observe the proposed program (IHO Ex. 15 at p. 1).  Petitioner notified respondent via electronic mail on October 26, 2004 that she would observe her son's proposed program on Friday, October 29, 2004 (Tr. p. 106; Dist Ex. 11 at p. 2).  Respondent notified her via electronic mail on October 27, 2004 that the requested date would not be convenient because the program would be operating under a holiday schedule that day but that respondent would send her a list of days that would be appropriate for her to observe the program (Dist. Ex. 11 at p. 2).  Respondent sent petitioner a letter dated October 29, 2004 listing six dates, November 2, 4, 8, 10, 16 and 18, when petitioner could observe three periods where the student would be receiving special education services in the recommended program for the 2004-05 school year (IHO Ex. 9).  However, petitioner stated that because of her work schedule, she was not able to observe the proposed placement on the dates selected by respondent (IHO Ex. 15 at p. 2; Tr. pp. 30-31).  Petitioner notified the impartial hearing officer via electronic mail dated October 28, 2004 that she was having difficulty in obtaining access to the recommended program (Dist. Ex. 11 at p. 1).           

            On November 17, 2004 petitioner wrote a letter addressed to both respondent and the impartial hearing officer regarding a conference call that had been scheduled by the impartial hearing officer for November 11, 2004 but which had never taken place (IHO Ex. 11).  The purpose of the conference call was to update the impartial hearing officer with regard to petitioner's observation of the proposed placement (IHO Ex. 13 at p. 1).  Petitioner further stated in her letter that she had not been able to observe the proposed placement, she had waited all day on the November 11, 2004 Veteran's Day holiday for the conference call but never heard from either the impartial hearing officer nor respondent and therefore she would not participate in any further conference calls (IHO Ex. 11 at p. 2).  Petitioner reiterated that she was not willing to go forward with an impartial hearing without an advocate, again stated that she was withdrawing her request for an impartial hearing, and asked that the impartial hearing officer recuse himself (id.).  Respondent, via electronic mail to petitioner on November 18, 2004, apologized for any inconvenience caused by the fact that the conference call did not take place and stated that she did not realize that it had been scheduled on the Veteran's Day holiday (IHO Ex. 12).

             The impartial hearing officer wrote a letter addressed to both parties on November 22, 2004 in which he reiterated that he had already denied petitioner’s application to withdraw her request for an impartial hearing and explained that he believed if petitioner waited until the "last possible moment" to request another impartial hearing, respondent would be denied the opportunity to correct any mistakes or omissions in providing a free appropriate public education (FAPE) (IHO Ex. 13 at p. 2). The impartial hearing officer stated that petitioner had not observed the proposed placement on the dates made available by respondent, and had not informed him that she had attempted to obtain counsel (IHO Ex. 13 at pp. 2-3). He further stated that in view of the foregoing and petitioner’s refusal to participate in a conference call, he scheduled the impartial hearing to begin on December 6, 2004 (IHO Ex. 13 at p. 3).

             The impartial hearing took place as scheduled on December 6, 2004.  After making a brief statement at the beginning of the impartial hearing in which petitioner stated that she had been forced to continue with the impartial hearing without legal counsel despite her numerous attempts to withdraw her impartial hearing request (Tr. p. 27; IHO Ex. 15), petitioner left the impartial hearing (Tr. p. 34). 

             The impartial hearing officer issued his decision on January 24, 2005 concluding that the 2004-05 IEP offered a program that was calculated to confer meaningful educational benefit to the student in the least restrictive environment (IHO Decision, p. 18).  In his decision, the impartial hearing officer cited the determination in Application of the Bd. of Educ., Appeal No. 04-068, that respondent had offered a FAPE to the student for the 2003-04 school year, that there was no new information given to the CSE after the 2003-04 school year that would result in any major changes to the 2004-05 IEP and that the only significant changes to the 2004-05 IEP were in the goals and objectives, making them “more meaningful” for the student (id.).  The impartial hearing officer found that the 2004-05 IEP offered the student a FAPE (IHO Decision, pp. 17-18).  He denied petitioner's request for tuition reimbursement for the 2004-05 school year and denied reimbursement for transportation costs from January 2004 to June 2004.

            Petitioner requests that the impartial hearing officer’s decision be annulled, alleging that the impartial hearing officer lacked jurisdiction to hear her case after she withdrew her request for the impartial hearing and that she was denied access to legal representation and, therefore, was unable to either assert her claims or refute false statements presented to the impartial hearing officer (Pet. ¶¶ 11-12).

           At the outset, I will address a procedural matter raised in this appeal.  Respondent raises an affirmative defense asserting that the appeal was commenced in an untimely manner and must be dismissed.  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 petition of 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 January 24, 2005.  Although petitioner asserts that she received the decision on January 28, 2005 (Pet. ¶ 10), it is not clear from the record how the decision was served.  On March 14, 2005, 49 days after the date of the impartial hearing officer’s decision, petitioner served respondent with a notice with petition and petition for review.  I find that regardless of the manner by which the impartial hearing officer’s decision was served, the petition was served beyond the service timelines established by state regulations.

            Petitioner’s counsel has submitted on appeal an affirmation acknowledging late service of the petition for review and asserting that there is good cause for the late service.  Counsel has also submitted a reply asserting the same good cause.  In her affirmation, counsel states that she prepared a notice of intention to seek review and notice with petition and verified petition for petitioner, met with petitioner, and gave petitioner written instructions on how and when to serve the pleadings (Affm. ¶¶ 3, 4, 5).  Counsel asserts that she telephoned petitioner on the evening of March 11, 2005 because her office had not been notified that the petition had been served (id. at ¶ 6).  She states she was advised by petitioner that a family member had agreed to perform the service, that service of the petition had not been made due to confusion concerning counsel’s directions, and that the papers had been misplaced (id. at ¶ 7).  New pleadings were drafted on March 14, 2005 and served upon respondent on the same day (id. at ¶ 8).  Petitioner’s counsel asserts that the notice of intention to seek review was timely served and that respondent is not prejudiced by the delay.  Respondent answers by asserting that petitioner is represented by experienced counsel who is well aware of appeal timelines and that the reasons given for good cause are not credible. 

            In the present case, petitioner is represented by counsel who is experienced in practice before the State Review Officer and who has represented parents in prior appeals involving the timelines for service of petitions for review (see Application of a Child with a Disability, Appeal No. 03-007 [excusing late service of petition due to postal service error]; Application of a Child with a Disability, Appeal No. 03-092 [dismissing late petition as untimely due to lack of assertion of good cause for delay]; Application of a Child with a Disability, Appeal No. 04-067 [dismissing late petition as untimely due to lack of assertion of good cause for delay]).  In Application of a Child with a Disability, Appeal No. 03-007, the State Review Officer specifically cautioned “to ensure that proper and timely service takes place in future appeals.”  Moreover, I note that the petitioner in the instant case has also been involved in appeals to the State Review Officer in the recent past, and as such is also familiar with the impartial hearing and review process (see Application of a Child with a Disability, Appeal No. 04-068).  Under the circumstances presented herein, I will not excuse petitioner’s delay (Application of a Child with a Disability, Appeal No. 05-026; Application of a Child with a Disability, Appeal No. 04-103). 

            I have not considered the merits of petitioner’s claims on appeal.

THE APPEAL IS DISMISSED.