Decision No. 13,694

(October 21, 1996)

MILLS, Commissioner.--Petitioners appeal respondent's alleged failure to provide their daughter with appropriate educational services, including a tutor to assist her in making up school work missed due to a chronic health condition. The appeal must be dismissed.

Petitioners' daughter is fifteen years old and attends the Fort Plain High School. During the 1995-96 school year, while in the ninth grade, she was absent for a total of 81 full school days and 26 half days. A meeting was scheduled for November 27, 1995 to address her attendance problem, but petitioners were unable to attend. At the re-scheduled meeting on December 8, 1995, with the student's mother present, respondent's superintendent of schools/Fort Plain High School principal, school nurse/attendance officer, and chairman of the committee on special education (CSE) decided to refer the student to the CSE for an evaluation, reduce her class schedule, and provide her with resource room services, extra help from her teachers, and counseling. At a meeting on March 18, 1996, the CSE found the student to have a disability, classified her as "other health impaired" and recommended that she be tutored for the remainder of the 1995-96 school year and repeat the ninth grade in 1996-97 with resource room services. On June 13, 1996, the student's father met with the superintendent/principal and requested that his daughter be permitted to take her final examinations and that a plan be developed for her to make up missed assignments. Petitioners commenced this appeal on August 14, 1996.

Petitioners contend that despite a request from their daughter's doctor and the recommendation of the CSE, respondent has failed to provide her with a tutor. Petitioners request that I order respondent to implement one of several educational plans they have developed for their daughter. Petitioners also request that I order the staff of the Fort Plain High School to participate in training regarding the nature of their daughter's medical condition. Finally, petitioners request that I remove respondent's superintendent/principal from office.

Respondent contends that the petition should be dismissed because the district has complied with its obligation to provide petitioners' daughter with a free appropriate public education. Respondent also contends that petitioners failed to provide medical documentation supporting their claim and failed to cooperate with respondent to develop an educational plan.

Section 200.4(c) of the Regulations of the Commissioner of Education requires the development of an individualized education program (IEP) for a student who has been determined by the CSE to be eligible for special educational services. Upon receipt of an initial referral, the CSE must complete the necessary evaluations and make its recommendation for an IEP to the board of education. This must occur within 40 days of receipt of the referral or within 30 days of receipt of parents' consent to the evaluation, whichever is earlier. The CSE, when developing an IEP, shall provide home instruction when appropriate to meet the needs of the child (8 NYCRR 200.6(h).

If the recommendation of the CSE is not acceptable to the parents, or if the CSE or board of education fails to effectuate the recommendation in a timely manner, and the parents notify the board of this situation, the board shall appoint an impartial hearing officer to hear the appeal and make a determination within forty-five days (Education Law 4404(1); 8 NYCRR 200.5(c)). Because petitioners contend that respondent failed to provide services recommended by the CSE for the 1995-96 school year and dispute the CSE's recommendation for the 1996-97 school year, the proper avenue of redress is to request an impartial hearing (Education Law '4404(1); 8 NYCRR 200.5; Appeal of a Student with a Disability, 35 Ed Dept Rep. 405; Appeal of Smith, 32 id. 109; Appeal of a Child Suspected of Having a Handicapping Condition, 30 id. 448). If either party is dissatisfied with the hearing officer's decision, they may seek review by the State Review Officer pursuant to Education Law '4404(2).

With regard to petitioners' request for removal of the superintendent/principal, petitioners have not named the superintendent/principal as a party to the appeal. A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner must be joined as a party (Appeal of Bussfeld, 4 Ed Dept Rep 383; Appeal of McCall, 34 id. 29; Appeal of Basile, 32 id. 330; Appeal of Osterman 30 id. 290). Because a ruling in petitioners' favor on their request for relief against the superintendent/principal will adversely affect him, petitioners' failure to join him requires the dismissal of their claim for relief against him. In addition, to the extent that petitioners request his removal from the office of principal, such relief is not within the Commissioner of Education's jurisdiction pursuant to Education Law '306 because a principal is a district employee, not an "officer" subject to removal pursuant to that section (Application of Morris, 35 Ed Dept Rep 193).

While I am constrained to dismiss the appeal, respondent is reminded of its obligation to provide petitioners' daughter with an IEP and, if requested by petitioners, with a timely impartial hearing to address the disputed issues raised herein.

THE APPEAL IS DISMISSED.

END OF FILE

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