Application of the New York City Department of Education

STATE OF NEW YORK

OFFICE OF STATE REVIEW

05-060

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

Appearances:

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 that awarded tutoring services to be provided to respondent’s son during summer 2005.  The appeal must be dismissed.

Petitioner appeals from an impartial hearing officer’s decision dated May 11, 2005.^[1]  The petition, dated June 15, 2005, was served upon respondent on June 15, 2005, and was filed with the Office of State Review of the New York State Education Department on June 23, 2005.  Petitioner failed to file the record of the proceeding before the impartial hearing officer together with the petition with the Office of State Review as required by 8 NYCRR 279.9(b) of the Regulations of the Commissioner of Education. The Office of State Review has not received the hearing record from petitioner to date.

Federal and state regulations require each school district to maintain a verbatim record of the proceedings before an impartial hearing officer (34 CFR § 300.509[a][4]; 8 NYCRR 200.5[i][3][v]).  It was petitioner’s obligation to furnish the Office of State Review the complete hearing record upon the filing of its petition (8 NYCRR 279.9[a], [b]);^[2] however, the petition was filed on June 23, 2005 without the hearing record.  In the absence of the record of the proceeding below, a State Review Officer cannot properly proceed with a review of the findings of fact and decisions of the impartial hearing officer because the review requires an examination of the entire hearing record (34 C.F.R. § 300.510[b][2][i]; 8 NYCRR 200.5[j][1]). Moreover, an expeditious review by a State Review Officer is particularly appropriate here because the dispute involves changes in the student’s individualized education program (IEP) and what placement and services should be offered during summer 2005. Further, implementation of the impartial hearing officer’s determination, which apparently ordered that petitioner provide the student with specific services during this summer, is likely stayed, absent agreement of the parties, pursuant to the pendency provisions of the Individuals with Disabilities Education Act (IDEA) and Article 89 of the Education Law.^[3],^[4] Therefore, in the instant case, petitioner’s failure to provide the record it wishes to have reviewed forecloses a review of the merits of petitioner’s claim. As a result, the summer services ordered by the impartial hearing officer very well may go undelivered as the time for summer instruction passes prior to the opportunity for a determination on the merits.

Petitioner is aware or should be aware of the procedural requirements associated with practice on review of hearings for students with disabilities (see 8 NYCRR Part 279).  Additionally, petitioner was cautioned in the recent past, by decision dated May 16, 2005, and warned of the possibility of a dismissal for failing to submit a hearing record on time (Application of the Bd. of Educ., Appeal No. 05-033).  Petitioner has also been admonished previously for failing to supply a complete hearing record and for failing to comply with the filing regulations (Application of a Child with a Disability, Appeal No. 04-073; Application of a Child with a Disability, Appeal No. 03-055).  It is within the discretion of a State Review Officer to dismiss an appeal by the board of education when a complete hearing record is not filed within the timeframes proscribed under the regulations (8 NYCRR 279.9[b]).  Under the circumstances presented herein, I will not excuse or accept a late filing of the hearing record by petitioner (Application of the Bd. of Educ., Appeal No. 05-033; Application of a Child with a Disability, Appeal No. 04-073; Application of a Child with a Disability, Appeal No. 03-055) and I will dismiss the petition without a determination of the merits of petitioner’s claim.

THE APPEAL IS DISMISSED.

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Footnotes

[1] While not providing a copy of the impartial hearing officer’s decision, petitioner references the decision in its petition. 

[2]  Petitioner is required by 8 NYCRR 279.9(a) to submit the following: the decision of the impartial hearing officer, a bound copy of the written transcript before the impartial hearing officer, including a word index for the written transcript, as well as an electronic transcript, and the original exhibits accepted into evidence at the hearing and an index to the exhibits. The board of education is also required to submit a certification with the record that the record submitted is the complete hearing record.

[3] The pendency provisions of the IDEA and the New York State Education Law require that a child remain in his or her "then-current educational placement," unless the child’s parents and the board of education otherwise agree, during the pendency of any due process complaint proceedings relating to the identification, evaluation or placement of the child (20 U.S.C. § 1415[j]; 34 C.F.R. § 300.514; N.Y. Educ. Law § 4404[4]; see Application of the Bd. of Educ., Appeal No. 05-011). A student's pendency placement can only be changed by an unappealed decision of an impartial hearing officer (Application of a Child with a Disability, Appeal No. 03-019), an agreement of the parties (see Bd. of Educ.  v. Schutz, 137 F.Supp. 2d 83 [N.D.N.Y. 2001], aff'd, 290 F.3d 476 [2d Cir. 2002], cert. denied, 537 U.S. 1227 [2003]), a decision by the State Review Officer agreeing with the parents (34 C.F.R. § 300.514[c]; 8 NYCRR 200.5[1][2]), or a determination by a court (Schutz, 290 F.3d 476 at 484; Bd. of Educ. v. Engwiller, 170 F.Supp.2d 410, 415 [S.D.N.Y. 2001]; Murphy v. Bd. of Educ., 86 F.Supp 2d 354, 366 [S.D.N.Y. 2000], aff'd, 297 F.3d 195 [2d Cir. 2002]; Application of a Child with a Disability, Appeal No. 02-002; Application of a Child with a Disability, Appeal No. 01-088).

[4] 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 [IDEIA], Pub. L. No. 108-446, 118 Stat. 2647). Citations contained in this decision are to the statute as it existed prior to the 2004 amendments. Petitioner initiated this proceeding prior to the effective date of the 2004 amendments to the IDEA, therefore, the provisions of the IDEIA do not apply.