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Decision No. 12,623

Application of a CHILD WITH A HANDICAPPING CONDITION, by his parent, from action of the Board of Education of the Wappingers Central School District regarding a child with a handicapping condition.

Decision No. 12,623

(December 30, 1991)

Paul A. Spletzer, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals from various actions taken by respondent, respondent's school attorney and other school personnel in conjunction with the hospitalization of her son, a child with a handicapping condition. The appeal is dismissed.

At the start of the 1990-91 school year, petitioner became embroiled in a dispute with respondent over the classification of her son as a child with a learning disability. On October 10, 1990, a hearing was commenced before an impartial hearing officer to review the individualized education program (IEP) recommended by respondent's Committee on Special Education at a September 6, 1990 meeting.

While he was in school on October 11, 1990, petitioner's son complained of chest pains and had to be taken by ambulance to the emergency room at St. Francis Hospital. He was subsequently hospitalized from October 13 through October 26, 1990 at the New York Hospital-Cornell Medical Center in New York City. Although the petition is largely indecipherable, it appears that petitioner's primary allegation in this appeal is that various actions on the part of respondent's employees, the school attorney and the impartial hearing officer in the pending hearing caused her son's collapse and hospitalization. Petitioner complains of various acts of alleged negligence on the part of school employees and the school attorney in refusing to issue a payment voucher for her son's hospitalization. In addition, petitioner accuses school officials of unspecified "criminal acts." Petitioner, among other things, seeks an order directing respondent to pay her son's medical bills, to pay for testing conducted while he was hospitalized and to reimburse her for her costs incurred in travelling to the two hospitals. Petitioner seeks removal of the school attorney and unspecified school personnel for their alleged wrongdoing in conjunction with the incident and requests an award of attorney's fees, or the equivalent, for the costs incurred by her parent advocate at the impartial hearing and in this appeal.

Petitioner also requests that I order the removal of documents from her son's records relating to an alleged referral of her son to Family Court as a person in need of supervision and an alleged referral of petitioner and her husband to the child protective services unit of the local Department of Social Services. Finally, petitioner raises various complaints about the evaluation of her son, the contents of his individualized education program (IEP) and the appropriateness of his educational placement.

The petition does not involve an appeal from a final determination of an impartial hearing officer pursuant to '4404 of the Education Law. Instead, it is brought pursuant to '310 of the Education Law while an impartial hearing is pending. Where a dispute involves a controversy surrounding the identification, evaluation or placement of a child with a handicapping condition, both state and federal law provide that an impartial hearing is the primary vehicle for resolving such disputes (20 USC '1415[b][1][E][2][1]; Education Law '4404[1]; 8 NYCRR 200.5[c]; Application of a Child with a Handicapping Condition, 30 Ed Dept Rep 211; Application of a Child with a Handicapping Condition, 30 id. 53). Respondent contends that petitioner is seeking review of procedural issues concerning the development of an IEP for petitioner's son that have already been raised by petitioner in the pending impartial hearing. To the extent this appeal raises procedural questions affecting services provided to the child, such issues are for the hearing officer to address in the first instance, and are not properly the subject of an appeal to the Commissioner (Application of a Child with a Handicapping Condition, supra).

To the extent that petitioner seeks removal of the school attorney and unspecified school personnel, the appeal must be dismissed for failure to join such individuals as parties to this appeal. It is well settled that individuals whose rights would be adversely affected by a determination of an appeal in favor of the petitioner are necessary parties to the appeal (Appeal of Keiling, 25 Ed Dept Rep 122). A petition seeking removal of a school attorney or of school officers must be personally served upon each individual whose removal is sought (8 NYCRR '277.1; Appeal of Como, 30 Ed Dept Rep 214; Application and Appeal of a Child with a Handicapping Condition 26 id. 540). Because petitioner has failed to name the individuals sought to be removed as respondents and failed to serve the petition upon them, the appeal must be dismissed insofar as it seeks removal of these individuals (Appeal of Osterman, 30 Ed Dept Rep 290). Respondent contends that the appeal must be dismissed for failure to set forth a clear and concise statement of petitioner's claim. The Regulations of the Commissioner of Education require that:

...the petition shall contain a clear and concise statement of the petitioner's claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled. Such statement must be sufficiently clear to advise the respondent of the nature of petitioner's claim and of the specific act or acts complained of (8 NYCRR '275.10).

The petition in this matter consists of approximately 45 typewritten pages, with approximately 100 pages of exhibits, drafted in a rambling and anecdotal manner. Although the petition is lengthy, argumentative and redundant, I find it to be adequate to advise respondent of the nature of petitioner's claims. Because petitioner is not represented by counsel, a liberal interpretation of the pleading is appropriate, absent prejudice to the opposing party (Application of a Child with a Handicapping Condition, 28 Ed Dept Rep 519). Respondent was able to address adequately petitioner's allegations in its answer and supporting affidavits and has failed to establish that it was prejudiced by petitioner's drafting. Accordingly, I decline to dismiss the petition on this basis.

The remainder of the appeal must be dismissed for failure to state a claim upon which relief may be granted. Insofar as petitioner seeks reimbursement for medical expenses and other consequential money damages incurred as a result of the alleged negligence of school officials, petitioner's remedy is to bring a negligence action for damages in court. An appeal to the Commissioner of Education is not the proper forum for a negligence action for damages against a school district. In any event, petitioner has failed to establish that she has any legal right to reimbursement by the school district for expenses incurred as a result of her son's hospitalization.

Insofar as petitioner seeks removal of the school attorney, the appeal must be dismissed for failure to state a claim because the Commissioner of Education has no jurisdiction to remove a school attorney (Matter of Rojek and Spadone, 24 Ed Dept Rep 434; Matter of Riendeau, 23 id. 487).

Petitioner's request for attorney's fees must also be denied. Even if petitioner had been a prevailing party, which is not the case here, her request for attorney's fees would have to be denied because the Commissioner of Education lacks authority to award attorney's fees in an appeal pursuant to Education Law '310 (Application of a Child with a Handicapping Condition, 28 Ed Dept Rep 408; Appeal of Kubinski, 26 id. 348).

Although petitioner requests that I order removal from her son's records of documents relating to referrals allegedly made to Family Court and the local Department of Social Services during his illness, respondent denies that such documents exist. In fact, respondent denies that any such referrals were made for this particular child and asserts that the documents submitted as exhibits to the petition pertain to referrals of petitioner's other children. Respondent's contention is substantiated by the documents submitted by petitioner, which bear the names of children other than petitioner's son. Petitioner has failed to establish the existence of the documents she seeks removed or that such documents are a part of her son's school record.

I have reviewed petitioner's remaining allegations and find that they have no merit.

THE APPEAL IS DISMISSED.

END OF FILE