Appeal of J.M. and R.M., on behalf of their daughter, from action of the Board of Education of the Oakfield-Alabama Central School District regarding special education.

Decision No. 18,021

(July 28, 2021)

Hodgson, Russ, LLP, attorneys for respondent, Andrew J. Freedman, Esq., of counsel

ROSA., Commissioner.--Petitioners appeal the determination of the Board of Education of the Oakfield-Alabama Central School District (“respondent”) to deny their request for in-home special education services for their child (“the student”).  The appeal must be dismissed. 

Prior to the events giving rise to this appeal, the student, who resides in respondent’s district, attended the New York State School for the Blind, where she received special education services.  Prior to the 2019-2020 school year, respondent granted the student a religious exemption from the immunization requirements of Public Health Law § 2164.

Respondent’s Committee on Special Education (“CSE”) convened on May 5, 2019 and recommended that, for the 2019-2020 school year, the student “continue to receive services from the New York State School for the Blind’s special education program along with adapted physical education, speech/language therapy, occupational therapy and a special class 12:1+(3:1).”

On June 13, 2019, Chapter 35 of the Laws of 2019 was enacted, effective immediately, which repealed subdivision nine of § 2164 of the Public Health Law, thus eliminating the religious exemption to immunization requirements to attend school.  With the enactment of Chapter 35 of the Laws of 2019, students may be exempted from New York’s immunization requirements only if they have received a valid medical exemption (see Appeal of J.A., 60 Ed Dept Rep, Decision No. 17,984).

In August 2019, petitioners submitted a New York State Department of Health (“DOH”) medical exemption statement to respondent seeking a medical exemption from certain vaccinations for the student.  By letter dated August 16, 2019, respondent’s superintendent of schools (“the superintendent”) informed petitioners that the student did not qualify for a medical exemption.  Specifically, the superintendent noted that the information petitioners provided did not “identify a specific medical contraindication” for the vaccines from which they sought exemptions.  The letter further informed petitioners that the student would be excluded from school after September 18, 2019 if she did not receive the necessary vaccinations.  The letter also informed petitioners of their right to appeal respondent’s decision to the Commissioner of Education within 30 days.

On September 23, 2019, petitioners requested that respondent provide special education services for the student.  On or about October 15, 2019, petitioners accepted an invitation from respondent’s Coordinator of Student Services (“the coordinator”) to attend a meeting of the CSE, scheduled for October 23, 2019, to discuss the student’s education needs.  By letter dated October 17, 2019, the superintendent and the coordinator informed petitioners that:

According to … Education Law § 3602-c, a parent of a homeschooled student must file a request for special education services with the District by June 1^st preceding the school year for which services are requested.  You have not met this statutory requirement, therefore your request is denied and we will no longer need to meet on October 23 ….

The record reflects that petitioners’ Individual Home Instruction Plan was approved on November 1, 2019.  This appeal ensued.  Petitioner’s request for interim relief was granted on November 20, 2019 to the extent that respondent was “directed to convene a meeting of the [CSE] as soon as practicable to develop an Individual Education Services Program for the student.”

Petitioners assert that they did not meet the June 1 statutory deadline for requesting in-home special education due to the unforeseeable repeal of the religious exemption on June 13, 2019, which was approximately two weeks after the June 1 deadline had passed.  Petitioners request that their child be treated like a student who recently established residency in the school district, as such students may request special education services after the June 1 deadline (see Education Law  §§ 3602-c [2] [a], [2-c]).  Petitioners further argue that guidance issued by the New York State Department of Health, Office of Children and Family Services, and State Education Department indicates that, “[f]or the 2019-2020 school year, school districts are encouraged to honor parent requests for homeschooled children who may be impacted by the repeal of religious exemptions to vaccination requirements.”  Petitioners seek a determination that the student is eligible to receive special education services for the 2019-2020 school year, and that such services should be provided “either in-home or at a neutral location….”  Alternatively, petitioners seek a determination that the student’s “medical exemption should be recognized and that she should be admitted to the New York State School for the Blind as a student for the 2019-2020 school year and following….”

Respondent asserts, among other things, that the Commissioner of Education lacks jurisdiction over this matter; that petitioners fail to state a claim upon which relief may be granted; that petitioners’ request for in-home special education services was untimely; and that its decision to deny the student in-home special education services was rational and supported by State law. 

With regard to petitioners’ request that I order respondent to provide education services for the 2019-2020 school year (either in-home or at a neutral location), the appeal must be dismissed for lack of jurisdiction.  Petitioners seek a determination that the student is entitled to receive in-home special education services as a homeschooled student for the 2019-20 school year.  Claims brought to enforce rights arising under the Individuals With Disabilities Education Act (“the IDEA”) must be addressed through the due process provisions of the IDEA (20 USC § 1415) and Education Law § 4404 or the State complaint procedure outlined in section 200.5 of the Commissioner’s regulations; such claims may not be addressed in an appeal brought pursuant to Education Law § 310 (Appeal of a Student with a Disability, 52 Ed Dept Rep, Decision No. 16,375; Appeal of R.J.K. and L.K., 50 id., Decision No. 16,232; Appeal of a Student with a Disability, 46 id. 258, Decision No. 15,500).  Therefore, the appeal must be dismissed (Appeal of a Student with a Disability, 59 Ed Dept Rep, Decision No. 17,859; Appeal of a Student with a Disability, 40 id. 170, Decision No. 14,451).^[1]

With regard to petitioners’ request that I recognize the medical exemption they submitted on behalf of the student, the appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  Here, the superintendent informed petitioners that the student did not qualify for a medical exemption by letter dated August 16, 2019; the letter further advised petitioners of their right to appeal respondent’s decision to the Commissioner of Education within 30 days.  Petitioners, however, did not commence this appeal until November 2019, well past the 30-day period in which to bring an appeal to the Commissioner.  Accordingly, petitioners’ request that I recognize the medical exemption submitted on behalf of the student is dismissed as untimely.[2]

In light of this determination, I need not address the parties’ remaining contentions.  

THE APPEAL IS DISMISSED.

END OF FILE