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Decision No. 13,634

Appeal of a STUDENT WITH A DISABILITY by her parent, from action of the Board of Education and the Committee on Special Education of the Syosset Central School District.

Decision No. 13,634

(July 11, 1996)

Stein & Schonfeld, attorneys for petitioner, Nancy A. Sorrentino, Esq., of counsel

Pelletreau & Pelletreau, attorneys for respondent, Benjamin L. Herzweig, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges respondents alleged failure to implement terms of a stipulation agreed upon by the parties in their attempt to settle a dispute before an impartial hearing officer regarding special education and related services for her daughter. The appeal must be dismissed.

Petitioner is the parent of a student with a disability who resides in the Syosset Central School District. On June 17, 1993, the district's committee on special education (CSE) prepared an individualized education program (IEP) for petitioner's daughter for the 1993-94 school year. On November 22, 1993, petitioner objected to the recommended placement and requested an impartial hearing. A hearing was scheduled for March 17, 1994 but was not held after petitioner withdrew her hearing request.

On June 6, 1994, the CSE recommended an IEP for the 1994-95 school year that was essentially the same as the IEP for the 1993-94 school year. On June 9, 1994, petitioner requested an impartial hearing and placed her daughter in the Program for Academic Learning Skills at Hofstra University for the 1994-95 school year. The hearing commenced on October 19, 1994 and re-convened on January 27, 1995 and February 10, 1995.

On February 10, 1995, the parties reached a settlement and entered into a stipulation on the record. The hearing officer retained jurisdiction to reconvene the hearing if either party expressed concern regarding implementation of the stipulation. The district agreed to provide an IEP to include certain transition services, speech, language and occupational therapy and a driver education evaluation to petitioner's daughter, who was to take a sufficient and appropriate course load "to meet the local school requirements for purposes of a local school diploma no later than June 30, 1996." By letters dated April 3 and September 1, 1995, petitioner's counsel asked the hearing officer to reconvene the hearing due to the district's alleged failure to provide the agreed upon services. However, it appears that no hearing was held.

Petitioner commenced this appeal on December 8, 1995, seeking an order directing respondents to comply with the terms of the February 10, 1995 stipulation and provide one year of compensatory education services.

Respondents contest the appropriateness of providing certain transition services and contend that the petition should be dismissed as untimely and for lack of jurisdiction.

Where a parent disagrees with the identification, evaluation or proposed educational placement of a student with a disability, as a general rule, the parent is required to exhaust available administrative remedies before seeking review at the state level (Education Law '4404[2]; 8 NYCRR 200.5[c]; Appeal of a Student with a Disability, 33 Ed Dept Rep 46). Parties dissatisfied with the decision of an impartial hearing officer may appeal such decision to the State Review Officer. Here, petitioner seeks relief from the Commissioner without first completing the impartial hearing for which a hearing officer has been appointed. To the extent respondent board has not acted upon petitioner's outstanding requests to reconvene the impartial hearing, it is reminded of its obligation to immediately convene or reconvene a hearing to address the substance of the parent's concerns. A hearing officer must determine whether the services and IEP in question are appropriate. Therefore, the petition must be dismissed for failure to exhaust administrative remedies.