Appeal of a STUDENT WITH A DISABILITY, by her parent, from action of the Board of Education of the Wantagh Union Free School District regarding an impartial hearing.

Decision No. 15,670

(October 10, 2007)

Ingerman Smith, L.L.P., attorneys for respondent, Christopher Venator, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the decision of a State Review Officer (“SRO”) dismissing petitioner’s appeal of an impartial hearing officer (“IHO”) decision.  The IHO decision denied petitioner’s request for educational services and transportation for the summer of 2005 and the 2005-2006 school year.  The appeal must be dismissed.

Petitioner’s daughter is classified as a student with a disability and receives special education services pursuant to an individualized education program (“IEP”) developed by the Wantagh Union Free School District’s (“district”) Committee on Special Education (“CSE”).  Petitioner disagreed with the CSE’s program recommendations for his daughter for the summer of 2005 and the 2005-2006 school year and enrolled her in a private program.

Petitioner requested an impartial hearing from the district regarding his daughter’s IEP and sought reimbursement for her tuition and transportation to the private program.  The impartial hearing was held on April 28, May 18 and June 9, 2006.  At the start of the hearing, the IHO stated that he was not an employee of any school district or of the New York State Education Department (“Department”).  However, the IHO did not disclose that, as an attorney, he represented school districts in the area of special education.

Pursuant to §200.5(j)(5) of the Commissioner’s regulations, the IHO’s decision was due on September 20, 2006.  However, the IHO’s complete decision denying petitioner’s claims and his request for reimbursement was not sent to the parties until December 14, 2006.

By letter dated November 27, 2006, petitioner filed a complaint with the Department claiming that the IHO’s failure to issue a timely decision rendered him incompetent.  On February 1, 2007, the Department informed petitioner by letter that his allegation was founded.

On January 17, 2007, petitioner appealed the IHO’s determination to the SRO.  The SRO affirmed the IHO’s decision on February 28, 2007.  This appeal ensued.

Petitioner claims that he is entitled to a new hearing because the IHO was biased and the SRO failed to consider the Department’s finding that the IHO was “incompetent” due to his failure to render a timely decision.  Respondent argues that the appeal is untimely and must be dismissed for lack of jurisdiction.

A person who is dissatisfied with the decision of an IHO may appeal such decision to the SRO pursuant to Education Law §4404(2).  Petitioner did so and received a decision from the SRO dated February 28, 2007.  Pursuant to Education Law §4404(3), a decision of the SRO may be reviewed only in Supreme Court of the State of New York or in United States District Court.  Consequently, this appeal must be dismissed for lack of jurisdiction (Education Law §4404[1]-[3]; 8 NYCRR §200.5[j] and [k]).

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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