Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the William Floyd Union Free School District relating to impartial hearings.
Decision No. 13,866
(February 13, 1998)
Ehrlich, Frazer & Feldman, Esqs., attorneys for respondent, James H. Pyun, Esq. of counsel
MILLS, Commissioner.--Petitioner seeks an order from the Commissioner defining the term "days" for purposes of 8 NYCRR 200.5(c)(9). The appeal must be dismissed.
Petitioner is the parent of a student with a disability who has been the subject of impartial hearings. Petitioner does not appeal from the decision of an impartial hearing officer pursuant to Education Law §4404 but instead seeks an advisory ruling determining whether the term "days", as used in 8 NYCRR 200.5(c)(9) and which requires the disclosure of evidence five days prior to a hearing, means calendar days or school working days. The petition refers to the definition of the term "days" in 8 NYCRR 200.1 (m) which states, "Days mean school work days, except that during the months of July and August days mean every day except Saturday, Sunday and legal holidays." Petitioner asks if that definition is applicable in interpreting 8 NYCRR 200.5(c)(9).
Respondent contends that the petition should be dismissed for failure to state a claim against the school district and because an appeal brought pursuant to Education Law §310 is an improper forum for issuing an advisory opinion. Respondent also contends that petitioner should have raised any question of past compliance with the five-day rule in the context of an actual hearing or in one of her three prior appeals to the Commissioner and/or state review officer.
This appeal is brought pursuant to Education Law §310 which authorizes the Commissioner to review petitions by an "aggrieved party" from any "official act or decision of any officer, school authorities, or meetings" concerning any matter under the Education Law.
Petitioner has failed to allege or demonstrate a personal injury to her civil, personal or property rights or those of her children resulting from any disclosure of evidence or failure to disclose evidence prior to an impartial hearing and is, therefore, not an "aggrieved party" under §310 of the Education Law (Appeal of Children with Handicapping Conditions, 31 Ed Dept Rep 21; Application of a Child with a Handicapping Condition, 30 id. 53; Application of a Child with a Handicapping Condition, 29 id. 486). In the instant appeal, petitioner requests that the Commissioner render an advisory opinion on the definition of the term "day" as used in 8 NYCRR 200.5(c)(9). To the extent that petitioner seeks an advisory opinion, the Commissioner does not issue advisory opinions in appeals brought pursuant to Education Law §310 (Appeal of Children with Handicapping Conditions, supra; Application of a Child with a Handicapping Condition, 30 Ed Dept Rep 262; Application of a Child with a Handicapping Condition, 30 id. 122; Application of a Child with a Handicapping Condition, 30 id. 53; Application of a Child with a Handicapping Condition, 29 id. 486; Application of a Child with a Handicapping Condition, 29 id. 87; Matter of a Handicapped Child, 24 id. 223; Matter of Board of Educ., Bellmore-Merrick Cent. School Dist., 19 id. 125, reopening den 19 id. 484; Matter of Dell, 18 id. 351). Therefore, the petition must be dismissed.
Petitioner is reminded that general policy issues affecting students with disabilities may be directed to the State Education Department, Office of Special Education Policy and Quality Assurance. In this instance, however, the petition itself cites the regulatory definition it seeks.
THE APPEAL IS DISMISSED.
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