Application to reopen the APPEAL OF A STUDENT WITH A DISABILITY, by her parent, from action of the Board of Education of the North Colonie Central School District regarding the denial of an application to the Capital Region Board of Cooperative Educational Services cosmetology program.

 

 

(February 28, 2003)

 

David W. Morris, Esq., attorney for respondent

 

MILLS, Commissioner.--Petitioner seeks to reopen Appeal of a Student with a Disability, 42 Ed Dept Rep __, Decision No. 14,807, regarding the refusal of the Board of Education of the North Colonie Central School District ("respondent") to enroll his daughter in the Capital Region Board of Cooperative Educational Services ("BOCES") cosmetology program ("program").  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.  The regulation further states that an application to reopen must be made within 30 days of the date of the underlying decision (Application of Satler, 41 Ed Dept Rep __, Decision No. 14,690).

Petitioner"s application is untimely.  The underlying decision was issued on September 19, 2002, and petitioner commenced this proceeding on October 26, 2002, more than 30 days later.  Therefore, the application must be denied.

Even if the application were timely, it would be denied because petitioner has not demonstrated that the 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.  Petitioner submits additional documents, including minutes from a 1995 meeting of respondent"s pupil services team, finding that his daughter was not eligible for special education under the Individuals with Disabilities Education Act (IDEA). However, petitioner fails to demonstrate that the additional documents, dating from 1994 to February 2002, were not available at the time the decision was made.  Moreover, the only documents petitioner claims to have discovered at or after the time of the decision, the 1995 minutes and an accompanying fax sheet dated May 3, 2001, support the decision"s finding of fact that his daughter had a school accommodation plan under Section 504 and did not have an Individualized Education Program (IEP) under the IDEA for the 2001-02 school year.  After thoroughly reviewing the records of the original appeal, I found that her Section 504 plan did not specify special education or BOCES services.  Petitioner essentially attempts to reargue the merits of the original appeal.  Mere reargument of issues presented in a prior appeal is not a basis for reopening an appeal (Application of Satler, supra; Application of Tanzer, 40 id. 229, Decision No. 14,467).

 

THE APPLICATION TO REOPEN IS DENIED.

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