Decision No. 13,541

(January 26, 1996)

MILLS, Commissioner.--Petitioner seeks an order annulling a determination of respondent's committee on special education (CSE) because of alleged procedural violations. The appeal must be dismissed.

Petitioner's son is nine years old and is classified by respondent's CSE as multiply handicapped. By notice dated April 12, 1995, petitioner was informed that the CSE would meet on April 26, 1995 to review and/or consider changes in his son's individualized education program (IEP). The notice identified by name and title ten members of the CSE expected to attend, four of whom did not attend. Four other school employees whose names and titles were not included in the notice, including the student's teacher, attended the meeting. Respondent's lawyer was present briefly at the beginning of the meeting but left as a result of petitioner's objection.

The record indicates that petitioner participated in the meeting on April 26, 1995. Minutes of the meeting document both the CSE's recommendation to change the student's placement to a more structured setting with constant supervision and petitioner's objection to the recommended program because of travel time and medical concerns.

Petitioner contends that the CSE's determination should be annulled because of procedural violations relating to the contents of the April 12, 1995 notice and the conduct of the meeting on April 26, 1995. Specifically, petitioner complains that school personnel, including respondent's attorney, attended the meeting without prior notice and that the CSE's psychologist member was biased because her children attended the same school as petitioner's son.

Respondent contends that the appeal should be dismissed because petitioner failed to exhaust his administrative remedies by not requesting an impartial hearing to resolve his disagreement with the CSE regarding his son's special education placement. Respondent also contends that the CSE was properly constituted at the April 26, 1995 meeting because mandated members, including the child's teacher, were present. Respondent further contends, interalia, that due process was not denied because petitioner was provided with notice and an opportunity for full and effective participation at the meeting.

As a preliminary matter, petitioner submitted a reply seeking removal of two school district administrators, even though these additional requests for relief were not previously set forth in the petition. Because the purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR 275.14), I will not consider those portions of petitioner's reply containing new requests for relief.

Federal and state law establish procedural safeguards to ensure the opportunity for parental participation in decisions relating to the provision of special education services to children with disabilities. The Individuals with Disabilities Education Act (IDEA), 20 USC '1415(b)(1)(c) and Education Law '4402(1)(b)(3)(c) require the CSE to provide the parents of a handicapped child with written notice whenever it plans to modify or change the child's educational placement. The purpose of the notice is to advise the parent of his or her opportunity to address the CSE, either in person or in writing, on the appropriateness of its placement recommendations to be made to the board of education. The board must ensure that each meeting of the CSE includes such mandated members as a representative of the school district who is qualified to provide or supervise the provision of special education, the child's teacher, a school psychologist, a school physician if requested by the parent, a parent of a handicapped child residing in the school district and other individuals designated by the board (Education Law '4402[1][b][1], 8 NYCRR '200.3).

Petitioner's claims relate to alleged defects in the procedures followed by respondent in reviewing and recommending revisions in his son's IEP. Because these are special education issues governed by the IDEA and the relief sought is annulment of the CSE's determination regarding his son's special education placement, they are properly the subject of an impartial hearing brought pursuant to Education Law '4404(1) and '200.5(c) of the Regulations of the Commissioner of Education. A hearing officer must, in the first instance, determine whether the CSE's placement determination was supported by the evidence or was improperly tainted by procedural defects. Parties dissatisfied with the decision of the impartial hearing officer may appeal such decision to the State Review Officer. By appealing to me, pursuant to Education Law '310, petitioner has attempted, in effect, to bypass the impartial hearing and state review process established for special education disputes. Consequently, this appeal must be dismissed for petitioner's failure to exhaust his administrative remedies (Education Law '4404(1); 8 NYCRR '200.5(c); Appeal of a Student with a Disability, 33 Ed Dept Rep 46; Application of a Child with a Handicapping Condition, 31 id. 212; Application and Appeal of a Child with a Handicapping Condition, 26 id. 540).

THE APPEAL IS DISMISSED.

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