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Decision No. 13,886

Appeal of a STUDENT WITH A DISABILITY, by his mother and aunt, from action of the Boards of Education of the Northeast Central School District and the Dover Union Free School District regarding an order by an impartial hearing officer.

Decision No. 13,886

(March 13, 1998)

Shaw & Perelson, LLP, attorneys for respondent Northeast Central School District, Garrett L. Silveira, Esq., of counsel

Plunkett & Jaffe, P.C., attorneys for respondent Dover Union Free School District, Phyllis S. Jaffe, Esq., of counsel

MILLS, Commissioner.--Petitioners seek an order compelling the Northeast Central School District ("Northeast") to comply with the decision of an impartial hearing officer ("IHO"). The appeal must be dismissed.

Petitioners are the mother and aunt of the child who is the subject of this appeal and who is classified by Northeast's committee on special education ("CSE") as a student with a disability. The student's mother unilaterally placed her son at the Kildonan School for the 1995-96 and 1996-97 school years. In Application of a Child with a Disability, Appeal No.96-42, issued September 10, 1996, the State Review Officer ("SRO") ordered Northeast to reimburse petitioner for the cost of her son's tuition for the 1995-96 school year. Subsequent to the SRO's determination, in January 1997, Northeast determined that the student was a resident of the Dover Union Free School District (See, Appeal of a Student with a Disability, 37 Ed Dept Rep 70; appeal pending, Supreme Court, Albany Co., Index No. 7290-97; Notice of Removal to U.S. Dist. Court, Southern District of New York, 98 CIV 0138). On September 8, 1997, a hearing officer was appointed after petitioner requested an impartial hearing to determine, inter alia, the appropriateness of Northeast's individualized education program (IEP) for her son and to obtain reimbursement for tuition at the Kildonan School for the 1996-97 school year. Respondent appointed an IHO who issued an interim order on September 26, 1997 declaring the Kildonan School to be the current educational placement during the pendency of proceedings regarding petitioner's son, pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. "1415(e)(3) and Education Law "4404(4). The IHO directed Northeast to pay tuition to the Kildonan School for the first half of the 1997 school year and, if the proceedings continued beyond the first half year, for the second half of the 1997-98 school year.

Petitioners commenced this appeal on October 21, 1997 to obtain an order requiring Northeast to comply with the IHO's order. Respondent Northeast contends that the IHO's interim decision is contrary to law and in error and was appealed to the SRO. On December 19, 1997, the SRO issued Application of the BOE of the Northeast CSD, Appeal No. 97-76 annulling the IHO's interim decision. The SRO found that the last mutually agreed upon placement was in the Northeast public schools pursuant to the IEP which the CSE prepared on March 10, 1994 and that the pendency provisions of Federal and State law do not require Northeast to pay for this child's tuition in the Kildonan School for the 1997-98 school year. On January 9, 1998, petitioners filed a complaint in the U.S. District Court for the Southern District of New York appealing Application of the BOE of the Northeast CSD, Appeal No. 97-76 and seeking the relief requested herein. As regards the other school district respondent, petitioners have pursued a number of proceedings concerning this student, including a residency appeal involving both Northeast and the Dover Union Free School District (Appeal of a Student with a Disability, supra). In this appeal, however, no claims are stated against the Dover Union Free School District and no relief requested from it.

The appeal must be dismissed on jurisdictional grounds because the SRO has decided the dispute and petitioners' appeal of Application of the BOE of the Northeast CSD, Appeal No. 97-76 is pending before the United States District Court. Petitioners have elected to pursue an action in federal court against both school district respondents named herein, seeking broad relief, including interalia, the appeal of Application of the BOE of the Northeast CSD, Appeal No. 97-76; a permanent injunction declaring Kildonan School to be the child's "then current educational placement" for purposes of the IDEA; as well as compensatory education and damages for the 1994-95, 1995-96 and 1997-98 school years. Therefore, as a result of petitioners' election of federal court as the forum to litigate this matter, in the interest of judicial economy, I decline to exercise jurisdiction over this appeal arising out of the same set of facts and seeking review of the same IHO decision that was before the SRO in Application of the BOE of the Northeast CSD, Appeal No. 97-76 and is currently pending in the U.S. District Court for the Southern District of New York (see, Appeal of a Student with a Disability, 36 Ed Dept Rep 287; Appeal of a Child with a Handicapping Condition, 32 id. 104).

THE APPEAL IS DISMISSED.

END OF FILE