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Decision No. 14,541

Application to reopen the Appeal of A STUDENT WITH A DISABILITY, by her parent, from action of the Board of Education of the Fayetteville-Manlius Central School District regarding special education services.

Decision No. 14,541

(March 6, 2001)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Susan Johns, Esq., of counsel

MILLS, Commissioner.--Petitioner seeks to reopen Appeal of A Student with a Disability (40 Ed Dept Rep ___, Decision No. 14,451), which dismissed his appeal of the individualized education program ("IEP") developed for his daughter for the 1999-2000 school year by the Committee on Special Education ("CSE") of the Board of Education of the Fayetteville-Manlius Central School District ("respondent"). The application must be denied.

Section 276.8 of the Regulations of the Commissioner of Education governs applications to reopen. It provides that such applications are addressed solely to the discretion of the Commissioner and will not be granted in the absence of a showing that the original decision was rendered under a misapprehension of fact or that there is new and material evidence that was not available at the time the decision was made.

In the underlying appeal, petitioner claimed that respondent"s CSE developed an inappropriate IEP for his daughter on June 23, 1999 for the 1999-2000 school year because it proposed the use of a teaching assistant to provide home-based instruction services. The CSE amended the IEP on February 17, 2000 to specify direct instruction by a certified special education teacher and the assistance of a 1:1 teaching assistant in the home setting. The appeal was dismissed on jurisdictional grounds because Education Law "4404(1) provides that the proper avenue of redress for petitioner was to request an impartial hearing to challenge the appropriateness of the IEP. I noted that petitioner had not requested an impartial hearing but had instead submitted a complaint to the State Education Department that resulted in the changes he sought to his daughter"s 1999-2000 IEP and apparently resolved his dispute.

In this application to reopen the appeal, petitioner makes no showing that my original determination was rendered under a misapprehension of fact concerning the CSE"s development of his daughter"s IEP for the 1999-2000 school year, nor does petitioner present new and material evidence that was not available at the time of my decision on August 31, 2000. Accordingly, petitioner presents no grounds to reopen the issue upon which the prior decision was based. An application for reopening is not intended to provide an opportunity for mere re-argument of a proper decision on the law (Application of Tanzer, 40 Ed Dept Rep ___, Decision No. 14,467; Application of Gordon, 39 id. 384, Decision No. 14,266).

THE APPLICATION TO REOPEN IS DENIED.

END OF FILE