Appeal of A STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Sayville Union Free School District regarding services.

Decision No. 15,500

(December 15, 2006)

Guercio & Guercio, attorneys for respondent, Douglas A. Spencer and Gary L. Steffanetta, Esqs., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Sayville Union Free School District (“respondent”) to provide services to his son in a setting other than Sayville High School.  The appeal must be dismissed.

Petitioner’s son is classified as a student with a disability and receives special education services pursuant to an individualized education program (“IEP”) developed by respondent’s Committee on Special Education (“CSE”).  The student’s IEP for the 2005-2006 school year provided for him to receive services in an integrated 9th grade class at Sayville High School.

On November 7, 2005, petitioner’s son was suspended for possessing a knife and drug paraphernalia on school grounds.  He began home instruction on November 9, 2005.  A superintendent’s hearing was held on November 16, 2005 and the student was found guilty of the charges.  That same day, respondent’s manifestation team met and found that the student’s conduct was a manifestation of his disability.  The manifestation determination noted that the student’s behavioral intervention plan (“BIP”) would be reviewed and revised as necessary to address the behavior, and the CSE would review the appropriateness of his services and placement upon completion of a psychiatric evaluation.  In the interim, the parties agreed that the student would remain on home instruction.   The CSE met on December 22, 2005 to review the results of the psychiatric evaluation and determined that petitioner’s son required a more intensive academic setting. 

On February 14, 2006, the CSE determined that the Centereach Academic Center operated by the local Board of Cooperative Educational Services (“BOCES”) was the student’s appropriate placement.  On February 17, 2006, petitioner disagreed with the CSE determination and requested that his son continue receiving home instruction until a different school placement could be agreed upon.  Attempts were made throughout March 2006 to interview petitioner’s son for a less restrictive BOCES placement at the Islip Academic Center but petitioner objected to this proposed placement on March 28, 2006. 

The CSE met on April 4, 2006 and again determined that the student’s appropriate placement was the BOCES Centereach Academic Center.  By letter dated April 10, 2006, petitioner disagreed with the CSE determination and requested that his son continue receiving home instruction for the remainder of the 2005-2006 school year.  Petitioner commenced this appeal on May 10, 2006 and requested an impartial hearing from respondent on May 11, 2006.  On May 19 and 26, 2006, an impartial hearing was held.  The impartial hearing officer (IHO) issued a decision on August 31, 2006 dismissing petitioner’s challenge to the student’s 2006-2007 IEP. 

Petitioner contends that neither the BOCES Centereach Academic Center nor the Islip Academic Center is an appropriate placement for his son.  Petitioner also contends that respondent did not hold a manifestation determination meeting.  Petitioner asserts that the appropriate placement for his son is Sayville High School.  Petitioner also seeks an independent educational evaluation (“IEE”) at respondent’s expense, followed by a meeting of the CSE to review the results of the IEE and implement changes to the IEP.  

Respondent contends that the appeal is untimely and should be dismissed for lack of jurisdiction and failure to exhaust administrative remedies.  Respondent also contends that the appeal is moot because the issues have been resolved.

Federal and State law establish procedural safeguards to ensure the opportunity for parental participation in, and the appeal of, decisions relating to eligibility for special education services to children with disabilities.  The Individuals with Disabilities Education Act (“IDEA”) and Education Law §4404 provide parents with the right to an impartial hearing regarding a complaint on any matter relating to the identification, evaluation, or educational placement of a child, or the provision of a free appropriate public education to such child (20 USC §1415).

Petitioner’s claims relate entirely to respondent’s alleged violations of the IDEA and its alleged failure to provide his son with appropriate special education services.  Because these are special education issues governed by the IDEA, they are properly the subject of an impartial hearing brought pursuant to Education Law §4404(1) and §200.5(j) of the Commissioner’s regulations. 

Petitioner received an impartial hearing and a decision from the IHO.  A person who is dissatisfied with the decision of the IHO may appeal such decision to the State Review Office (“SRO”) pursuant to Education Law §4404(2).  Petitioner did not appeal the IHO’s decision and the time to appeal has expired (see 8 NYCRR Part 279). Consequently, this appeal must be dismissed for lack of jurisdiction (Education Law §4404(1) and (2); 8 NYCRR §200.5(j); Appeal of a Student Suspected of Having a Disability, 44 Ed Dept Rep 12, Decision No. 15,079; Appeal of a Student with a Disability, 40 id. 170, Decision No. 14,451; Appeal of a Student with a Disability, 39 id. 354, Decision No. 14,257).

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

THE APPEAL IS DISMISSED.

END OF FILE