Decision No. 13,185
Application to reopen the APPEAL OF A STUDENT WITH A DISABILITY, regarding the provision of educational services by the Board of Education of the Ellenville Central School District and the Board of Cooperative Educational Services, Ulster County.
Decision No. 13,185
(May 23, 1994)
Raymond G. Kuntz, P.C., attorneys for applicant Board of Cooperative Educational Services, Wendy Klarfeld Brandenburg, Esq., of counsel
Mid-Hudson Legal Services, Inc., attorneys for respondent parents, RosaLee Charpentier,
Esq., of counsel
SOBOL, Commissioner.--In this proceeding the Board of Cooperative Educational Services, Ulster County (BOCES) seeks to reopen Appeal of a Student with a Disability, 33 Ed Dept Rep 46.
In the prior proceeding, the student's parents appealed the Ellenville school district's alleged failure to provide their daughter with educational services in violation of the Individuals with Disabilities Act (IDEA). In addition, they claimed that both the school district and BOCES failed to comply with Education Law '3214 when BOCES officials suspended their daughter from her temporary placement in a BOCES program without notice or hearing. In sustaining the appeal, I found no evidence in the record that the student's parents were given either notice of their child's suspension from the BOCES program or an opportunity for a hearing prior to the suspension. After finding that both the school district and BOCES had violated the student's rights under Education Law '3214, I directed them to expunge the student's record of any reference to the suspension. I also directed the school district and BOCES to comply, in the future, with the requirements of Education Law '3214. It is that portion of my prior decision that BOCES seeks to reopen.
In the prior appeal, BOCES asserted that the student had not been formally placed in its program, but was instead placed on an interim basis while the district conducted the evaluations necessary to make its recommendation. BOCES argued unsuccessfully that, because it was not the student's formal placement, its subsequent refusal to allow her to return there did not constitute a suspension. In addition, BOCES argued in a conclusory fashion that, as the student's school district of residence, the Ellenville Central School District was solely responsible for any notice and process due.
In this application, BOCES requests that I reopen the portion of my prior decision requiring BOCES to comply with Education Law '3214 in cases where it suspends a student from instruction in excess of five days. In support of its application, BOCES argues that my prior decision was rendered under a misapprehension of fact regarding the nature of the relationship between BOCES and school districts with respect to students' due process rights. BOCES states that, when school districts place students in BOCES programs:
a tacit agreement exists between BOCES and their component districts that once BOCES contacts a district of residence that a problem exists with the continued placement of a student in one of its programs, the district of residence shall notify the parent or person in parental relationship to the student, in accordance with federal or state law.
BOCES asserts that it notified the Ellenville school district regarding the student's inappropriate behavior after she was placed in the BOCES program and that, pursuant to the "tacit agreement", the responsibility to comply with any due process requirements prior to her suspension lay with the school district. BOCES also advances legal arguments in this application regarding the general applicability to BOCES of Education Law '3214.
An application to reopen must present new material evidence not available at the time of the original proceeding or show that the prior proceeding was rendered under a misapprehension of fact (8 NYCRR 276.8[a]; Application to Reopen the Appeal of a Student with a Disability, 33 Ed Dept Rep ___, Decision No. 13146, dated April 6, 1994; Application of Roberts, 31 id. 330). Both the factual and legal arguments advanced by BOCES in this application are presented for my consideration for the first time. In the prior proceeding, BOCES failed to assert the existence of any agreement, "tacit" or otherwise, between BOCES and their component school districts, relying instead on a general claim that the responsibility to comply with due process lay solely with the school district. Similarly, in the prior proceeding, BOCES did not make any legal argument regarding the general applicability of Education Law '3214 to BOCES. BOCES may not use a reopening to augment previously undeveloped factual assertions and arguments. Likewise an application for reopening is not a forum for advancing new legal arguments. In this application, BOCES has neither presented new evidence that it could not have supplied in the prior proceeding nor has it established that my prior decision was rendered under a misapprehension of fact. Consequently, BOCES has failed to demonstrate a basis for reopening my prior decision.
THE APPLICATION IS DENIED.
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