Appeal of S.L., on behalf of his child, from action of the Board of Education of the Plainview-Old Bethpage Central School District regarding special education services.

Decision No. 18,022

(July 28, 2021)

Guercio & Guercio, LLP, attorneys for respondent, Barbara P. Aloe, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Plainview-Old Bethpage Central School District (“respondent”) to deny his request for in-home special education services for his child (“the student”).  The appeal must be dismissed.   

From March 2014 until September 2019, the student attended school in respondent’s district, where he received special education services.  Respondent’s Committee on Special Education (“CSE”) convened on March 18, 2019 and recommended that the student continue to receive special education services for the 2019-2020 school year.  According to respondent, the CSE recommended that “the Student receive Speech and Language Therapy 2 times weekly in a group of students while attending school in the District.”

On June 13, 2019, Chapter 35 of the Laws of 2019 was enacted, effective immediately, which repealed subdivision nine of § 2164 of the Public Health Law (PHL), thus eliminating the religious exemption to immunization requirements to attend school.  With the enactment of Chapter 35 of the Laws of 2019, students may be exempted from New York’s immunization requirements only if they have received a valid medical exemption (see Appeal of J.A., 60 Ed Dept Rep, Decision No. 17,984).  Prior to the repeal of PHL § 2164 (9), respondent had granted the student a religious exemption from the law’s immunization requirements.

In a telephone conversation on or about September 18, 2019, petitioner notified respondent’s Director of Pupil Personnel Services (“the director”) that he intended to home school the student for the 2019-2020 school year.  According to an affidavit submitted by the director, during that telephone conversation, petitioner inquired “whether the Student’s IEP services could be provided to the Student after he commenced homeschooling the Student.” 

On September 19, 2019, the director emailed petitioner to inform him that, “it is the position of the BOE that we are adhering to the June 1^st guideline.[1]  Next steps would be to express your concern to the BOE by writing  a letter or email and I am sure the issue will be discussed at the next BOE meeting.”  There is nothing in the record to indicate that petitioner followed this suggested course of action.   

On or about September 24, 2019, petitioner submitted an Individualized Home Instruction Plan (IHIP) to the district.  By letter dated October 2, 2019, the director informed petitioner that “we have determined that [the IHIP] meets the New York State Education Department requirements.”  This appeal ensued.  Petitioner’s request for interim relief was granted on October 24, 2019 to the extent that respondent was “directed to convene a meeting of the [CSE] as soon as practicable to develop an Individual Education Services Program for the student.”

Petitioner asserts that he did not meet the June 1 statutory deadline for requesting in-home special education due to the unforeseeable repeal of the religious exemption on June 13, 2019, which was approximately two weeks after the June 1 deadline had passed.  Petitioner requests that his child be treated like a student who recently established residency in the school district, as such students may request special education services after the June 1 deadline (see Education Law § 3602-c [2] [a], [2-c]).  Petitioner further argues that guidance issued by the New York State Department of Health, Office of Children and Family Services, and State Education Department indicates that, “[f]or the 2019-2020 school year, school districts are encouraged to honor parent requests for homeschooled children who may be impacted by the repeal of religious exemptions to vaccination requirements.”  Petitioner seeks a determination that the student is eligible to receive in-home special education services as a homeschooled student for the 2019-2020 school year.

Respondent asserts, among other things, that petitioner failed to properly effectuate service; that petitioner fails to state a claim upon which relief may be granted; that the appeal is moot; that petitioner’s request for in-home special education services was untimely; and that its decision to deny the student in-home special education services was rational. 

The appeal must be dismissed for lack of jurisdiction.  Petitioner seeks a determination that the student is entitled to receive in-home special education services as a homeschooled student for the 2019-20 school year.  Claims brought to enforce rights arising under the Individuals With Disabilities Education Act (“the IDEA”) must be addressed through the due process provisions of the IDEA (20 USC § 1415) and Education Law § 4404 or the State complaint procedure outlined in section 200.5 of the Commissioner’s regulations; such claims may not be addressed in an appeal brought pursuant to Education Law § 310 (Appeal of a Student with a Disability, 52 Ed Dept Rep, Decision No. 16,375; Appeal of R.J.K. and L.K., 50 id., Decision No. 16,232; Appeal of a Student with a Disability, 46 id. 258, Decision No. 15,500).  Therefore, the appeal must be dismissed (Appeal of a Student with a Disability, 59 Ed Dept Rep, Decision No. 17,859; Appeal of a Student with a Disability, 40 id. 170, Decision No. 14,451).[2]

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

THE APPEAL IS DISMISSED.

END OF FILE