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Decision No. 14,154

Appeal of a STUDENT WITH A DISABILITY, by his parents, from action of the Board of Education of the Half Hollow Hills Central School District; Half Hollow Hills Central School District, Kevin McGuire, as Superintendent of Schools; and Renee Wagenberg, as Assistant Superintendent for Pupil Personnel Services and Chairperson of the Committee on Special Education regarding provision of special education services.

Decision No. 14,154

(July 15, 1999)

Wasserman & Steen, attorneys for petitioners, Lewis M. Wasserman, Esq., of counsel

Ehrlich, Frazer & Feldman, attorneys for respondent, James H. Pyun, Esq., of counsel

MILLS, Commissioner.--Petitioners request an order finding that the Board of Education of the Half Hollow Hills Central School District ("respondent") violated their son's right to special education and related services under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. "1400 et seq., and Article 89 of the Education Law (Article 89). The appeal must be dismissed.

Petitioners' son has been identified as a student with a disability by the Half Hollow Hills Central School District's Committee on Special Education (CSE). The CSE met on June 24, 1998 to review transition services in the individualized education program (IEP) for petitioners' son in anticipation of his twenty-first birthday in July 1998. Following the June 24, 1998 CSE meeting, petitioners requested an impartial hearing to decide whether their son should be permitted to "graduate" and receive his IEP diploma. Respondent appointed an impartial hearing officer (IHO) on July 7, 1998. On July 20, 1998, petitioners received notice from the IHO of his appointment and of the August 20, 1998 hearing date. At petitioners' request, the hearing was postponed until September 23, 1998. Further adjournments were granted to both parties until January 26, 1999. By letter dated December 2, 1998, petitioners' counsel requested the minutes of the meetings of respondent board in which respondent appointed IHOs during 1998-99, as well as the name of the last person to serve in that capacity to verify the district's compliance with regulations governing the appointment of IHOs.

Petitioners commenced this appeal on December 21, 1998, seeking an order that respondents wrongfully denied special education services to their son and violated their procedural rights under the IDEA and Article 89. Petitioners request that I direct respondent to: convene its CSE and make a placement recommendation for their son; develop a plan for appropriate compensatory education services for their son; and maintain their son in his current educational placement during pendency of this appeal. Petitioners seek additional relief on behalf of all disabled students and their parents who reside in respondent's district who are affected by respondent's alleged: failure to comply with the mandated procedures for the appointment of IHOs; practice and policy of terminating services to disabled students on or before their attainment of age 21; and practice and policy of terminating services to disabled high school students generally on June 6th or 7th of each academic year. This request for additional relief includes an order directing respondent to: cease and desist its alleged practice of unlawfully terminating disabled students' education upon their attainment of age 21; adopt procedures to comply with Education Law ""4402(5) and 3202 guaranteeing that disabled students receive a free appropriate public education (FAPE) until they are no longer eligible for such services by reason of their age; appoint IHOs from a rotating list of persons certified pursuant to 8 NYCRR Part 200; cease and desist its alleged practice of terminating services to disabled high school students on or about June 6th or 7th of each academic year; and establish procedures insuring that disabled students in respondent's district receive not less than 190 days of school as defined in Education Law "3204(4) or such additional days of instruction as may be provided by any collective bargaining agreement.

Respondent contends that the Commissioner of Education lacks jurisdiction to entertain petitioner's special education disputes and that petitioners have failed to exhaust their proper means of redress through the impartial hearing requested June 24, 1998. Respondent also contends that petitioners have failed to establish a clear legal right to the relief sought because the determination of pendency and the propriety of respondent's IHO selection process must be made in the first instance by the IHO and petitioners have not requested such determinations from the IHO appointed to hear their complaints. Respondent further contends that the petition should be dismissed as untimely because it was served six months after the CSE's June 24, 1998 determination that their son had earned an IEP diploma and was no longer eligible to receive education services from respondent. Respondent argues that the appeal is untimely also because it was commenced five months after the July 7, 1998 appointment of the IHO. Respondent alleges that the IHO was properly appointed from its rotational list on July 7, 1998, and is certified by the State Education Department. Respondent denies failing to provide petitioners' son transitional services and alleges that, on numerous occasions during the 1997-1998 school year, CSE meetings were conducted to discuss transitional services, but on each occasion petitioners rejected respondent's recommendations. Respondent alleges that petitioners rejected respondent's offers each year since their son attained the age of 14 to provide him with a twelve-month program. Respondent alleges that the failure to meet all IEP goals is not a sufficient basis to award petitioners' son compensatory education beyond the age of 21 when there is no evidence that respondent failed to provide a FAPE or deprived the student of his rights under the IDEA. Respondent further alleges that the stay put or pendency right ceases when the student reaches the age of 21 under "1412 of the IDEA and Education Law "4401(1). Respondent also alleges that petitioners' claim under the Fourteenth Amendment to the U.S. Constitution that their son was deprived of a property interest in violation of the due process clause must be dismissed because an appeal to the Commissioner of Education under Education Law "310 is not the proper method to resolve a novel constitutional issue. Respondent alleges that petitioners' claims on behalf of others should be denied as purely speculative and conclusory and for failure to set forth with any measure of accuracy the number of individuals in the proposed class or that all questions of fact and law raised in this appeal are common to all members of the proposed class. Finally, respondent alleges that there is no basis for claims against individual respondents Kevin McGuire and Renee Wagenberg, neither of whom is vested with the ultimate decision making authority to provide special education services.

As a preliminary matter, petitioners seek permission to maintain this appeal as a class appeal on behalf of all parents and students affected by respondent's alleged: failure to comply with the mandated procedures for the appointment of IHOs; practice and policy of terminating services to disabled twenty-one year-old students and practice and policy of terminating services to disabled high school students generally on June 6th or 7th of each academic year. An appeal may only be maintained on behalf of a class "where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class" (8 NYCRR "275.2; Appeal of Aloisio, 38 Ed Dept Rep 169, Decision No. 14,009; Appeal of Parent-Student Coalition of Fallsburg, 37 id. 522, Decision No. 13,917; Appeal of Czerepak, 31 id. 448, Decision No. 12,695). Petitioners must set forth the number of individuals they seek to represent (Appeal of Sperl, 33 Ed Dept Rep 388, Decision No. 13,088) and must show that all questions of law and fact would be common to all members of the class (Appeal of Donnelly, 33 Ed Dept Rep 362, Decision No. 13,079).

In the instant appeal, the number of prospective members of the class has not been set forth. Petitioners show no evidence that anyone has experienced a similar situation and refer only to the total number of 1,163 disabled students enrolled in respondent's district during the 1997-98 school year. It is also unclear whether all the potential class members have the same interests or claims. Petitioners purport to bring the appeal on behalf of all disabled students and their parents "affected" by respondent's alleged failure to comply with mandated procedures for appointment of IHO's. First, petitioners have not set forth the number of students or parents, if any, who have requested an impartial hearing in respondent's district. Secondly, the act of appointing an IHO is individualized and subject to review. Each appointment of an IHO is a discrete act regarding only one individual student and subject to immediate scrutiny at the impartial hearing for which the appointment is made, as well as further review if appealed. Petitioners have not demonstrated how any other student or parent was "affected" by the July 7, 1998 appointment of the IHO to preside over the hearing requested by petitioners or aggrieved by any other appointment of an IHO.

Petitioners also seek to represent all students and their parents who are "affected" by respondent's alleged practice or policy of terminating service to disabled students on or before their attaining age 21. The petition fails to show either the existence of a practice or policy and, as with the previous claim, how any other member of the purported class has been aggrieved.

Petitioners also purport to bring the appeal on behalf of all disabled high school students whose educational services are terminated on June 6th or 7th of each academic year. Again, petitioners fail to meet the necessary criteria as they provide no evidence that any student has had or will have services improperly terminated on those dates. Moreover, any student with a disability who disagrees with respondent's provision of special education services or failure to provide a free appropriate public education (FAPE) is entitled to request an impartial hearing to address those concerns. Therefore, class status is denied.

Federal and state law establish procedural safeguards to ensure the opportunity for parental participation in and the appeal of decisions relating to the provision of special education services to children with disabilities. The Individuals with Disabilities Education Act (IDEA), 20 USC "1415 and Education Law "4404 provide parents with the right to an impartial hearing regarding a complaint with respect to any matter relating to the identification, evaluation, or educational placement of a child, or the provision of a FAPE to such child. Petitioners' claims relate entirely to respondent's alleged procedural violations of the IDEA and its alleged failure to provide a FAPE to their son. Because these are special education issues governed by the IDEA and the relief sought includes a directive to the CSE to provide compensatory education, a pendency determination of the student's "current educational placement," and other determination of their son's rights to special education services and procedures, 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 these issues, particularly the pendency placment pursuant to 8 NYCRR "276.1, whether the CSE's placement determination was supported by the evidence, whether a FAPE was provided, whether, upon a motion to recuse, his appointment was made according to the requirements of 8 NYCRR "200.2(e), whether petitioners' son is entitled to compensatory education, and whether respondent applied policies or practices in violation of the IDEA or Article 89 of the Education Law.

The record reflects that petitioners have requested an impartial hearing and that it has been scheduled. 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, petitioners have attempted, in effect, to bypass the impartial hearing and state review process established for special education disputes. Consequently, this appeal must be dismissed for lack of jurisdiction due to petitioners' failure to exhaust their administrative remedies (Education Law "4404(1); 8 NYCRR "200.5(c); Appeal of a Student Suspected of Having a Disability, 37 Ed Dept Rep 565, Decision No. 14,094; Appeal of a Student with a Disability, 35 id. 280, Decision No. 13,541; Appeal of a Student with a Disability, 33 id. 46, Decision No. 12,969; Application of a Child with a Handicapping Condition, 31 id. 212, Decision No. 12,623; Application and Appeal of a Child with a Handicapping Condition, 26 id. 540, Decision No. 11,845).

In light of the foregoing disposition, I need not address the parties' remaining claims which may be raised before the impartial hearing officer.

THE APPEAL IS DISMISSED.

END OF FILE