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Decision No. 13,585

Application of a CHILD WITH A HANDICAPPING CONDITION, by his parent, for review of the provision of special education services by the Board of Education of the Eastport Union Free School District.

Decision No. 13,585

(March 28, 1996)

Herbert J. Brauer, Jr., Esq., attorney for petitioner

Winkler, Kurtz, Winkler & Dolewski, LLP, attorneys for respondent, Catherine M. Healy, Esq., of counsel

Petitioner challenges respondent's suspension of his son for five days on January 19, 22, 26, 29, and 30, 1996. Petitioner alleges that the suspensions, when added to previous suspensions in the 1995-1996 school year, exceed ten school days, thus constituting an impermissible change in the student's placement. Petitioner also challenges a determination by respondent's Committee on Special Education (CSE) to change his son's current placement, effective February 1, 1996, and move him from the Eastport schools to a BOCES program at Brookhaven Learning Center. The appeal must be sustained in part.

Petitioner's son, who is now 16 years old, has attended Eastport schools for some time, and has been suspended on numerous occasions. In 1995, respondent proposed to classify petitioner's son as "learning disabled," and to place him on home instruction until a 12:1:1 program became available at BOCES. When petitioner refused to consent, respondent initiated an impartial hearing. As a result of the hearing held March 16, 1995, respondent apparently agreed to classify petitioner's son as "other health-impaired" and to place him in an in-district special education program with additional reading services. Petitioner then refused to consent to the resulting IEP, leading to a further hearing on April 27, 1995. Following that hearing, on May 26, 1995, the impartial hearing officer rendered a decision which confirmed the classification of learning disabled and found that the BOCES 12:1:1 program as initially requested by the CSE was appropriate.

Thereafter, attorneys for petitioner and respondent engaged in further negotiations, and reached an understanding which is set forth in a letter of petitioner's attorney dated July 7, 1995:

Pursuant to our telephone conversation of July 7, 1995, I am writing to express my understanding of the agreement between the parties in this matter. My client has agreed not to appeal the May 26, 1995 decision by David Marasciullo concerning the educational placement of Michael Lafferty in return for the following:

The District agrees to classify Michael as Other Health Impaired and to place Michael in a 12:1:1 class, in district, with mainstreaming for non-academics, in accordance with the written recommendation of the CSE drafted after the parties' initial meeting before the Hearing Officer on March 22, 1995 (see enclosed copy of said agreement).

The District also agrees that Michael will receive group counseling once per week and speech & language services twice per week.

The parties will have to meet to develop a specific IEP, of course, it is also understood that Michael's placement/program will be reviewed after the first quarter of the 1995-96 school year.

It is additionally understood that, if the District is not in agreement with the above-stated terms, my client's time to appeal the Hearing Officer's decision is extended with your consent. If you advise me that your client is in agreement with the above-stated terms this matter will be considered closed and no appeal will be pursued.

These terms were accepted by respondent in a letter from its attorney dated July 19, 1995.

It appears that petitioner's son was provided the agreed-upon program, in-district, from the beginning of the 1995-1996 school year. However, after the student had been suspended from that placement several times, the CSE met on January 4, 1996, and determined: "In accordance with the hearing officer's decision dated May 26, 1995, [petitioner's son's] educational needs will best be met in the BOCES 12:1:1 program." Petitioner was informed of the CSE's determination by letter dated January 21, 1996, indicating that the student would commence attendance in the BOCES program, effective February 1, 1996.

This appeal was commenced February 26, 1996, and seeks interim relief ordering respondent to admit petitioner's son to the Eastport schools, and implicitly enjoining his transfer to the BOCES program. Respondent argues that it is merely implementing the hearing officer's decision of May 26, 1995, and that petitioner has waived any right to appeal that decision.

Contrary to respondent's assertion, it is clear from the record that, on January 4, 1996, respondent's CSE recommended a change in the student's placement, thus altering the mutually agreed-upon placement it had implemented July 19, 1995. The fact that the new recommendation is identical to that which was the subject of prior proceedings almost a year ago is irrelevant. In view of respondent's recommended change in the student's current placement, and petitioner's disagreement with that recommendation, the appropriate administrative remedy is an impartial hearing (Education Law '4404[1]; 8 NYCRR 200.5; Appeal of Smith, 32 Ed Dept Rep 109; Appeal of a Child Suspected of Having a Handicapping Condition, 30 id. 448). If either party is dissatisfied with the hearing officer's decision, they may seek review by the State Review Officer pursuant to Education Law '4404(2).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED and

IT IS ORDERED that respondent immediately schedule an impartial hearing, and that, pending the outcome of that hearing, petitioner's son shall remain in his last uncontested placement pursuant to Education Law '4404(4), and

IT IS FURTHER ORDERED that, to the extent petitioner's claims of improper suspension pursuant to Education Law '3214 have not been appealed to the board of education, they are dismissed as premature (see, Appeal of Doty, 35 Ed Dept Rep 134, and cases cited therein); to the extent that such suspension claims relate to providing a free and appropriate public education, they must be referred to the impartial hearing officer; and

IT IS FURTHER ORDERED that petitioner's claims with respect to compensatory education shall be addressed by the impartial hearing officer.

END OF FILE