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Decision No. 13,736

Appeal of a STUDENT WITH A DISABILITY, by his parents, from action of the Board of Education of the Northport-East Northport Union Free School District regarding the decision of an impartial hearing officer.

Decision No. 13,736

(February 21, 1997)

Antoinette Probish, Esq., attorney for petitioners

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich & Scricca, attorneys for respondent, Warren H. Richmond, Esq., of counsel

MILLS, Commissioner.--Petitioners challenge the decision of an impartial hearing officer upholding the recommendations of respondent's committee established pursuant to '504 of the Rehabilitation Act of 1973 (29 U.S.C. '794) concerning reasonable accommodations for petitioners' son. The appeal must be dismissed.

During the 1995-96 school year, petitioners' son was a second grade student in respondent's school district. On September 13, 1995, respondent's '504 committee met and determined that petitioners' son was disabled within the meaning of '504 due to asthma, and agreed to a variety of accommodations and modifications. However, respondent refused petitioners' request to make modifications to the school's "all purpose room," where the children eat lunch and attend assemblies. Rather, it modified petitioners' son's schedule so that he would not have to enter the room. Petitioner requested an impartial hearing regarding the question of the all purpose room, which was held on November 29, 1995. The hearing officer found petitioners had not established a connection between the room and their son's reaction, that respondent's accommodations were reasonable and adequate, and that respondent did not discriminate against petitioners' son under '504. This appeal ensued. Petitioners request that I find respondent violated '504 and failed to comply with its own '504 plan.

Respondents contend that the petition is untimely, that the Commissioner lacks jurisdiction over '504 issues, that petitioners may not raise issues of noncompliance which were not raised before the '504 committee or the impartial hearing officer, and that the decision of the impartial hearing officer was fair, reasonable, and in compliance with law.

The appeal must be dismissed due to lack of jurisdiction. Where a child is identified as a student with a disability pursuant to the Individuals with Disabilities Education Act ("IDEA"), federal law requires State educational agencies to provide impartial reviews of local decisions (20 USC 1415(c)). In New York, the Legislature vested the authority to conduct such reviews in a State Review Officer (Education Law '4404(2)). However, '504 of the Rehabilitation Act of 1973 contains no similar requirement nor has the New York State Legislature granted such authority to the Commissioner or State Review Officer. In certain cases, the Commissioner may have an independent basis for addressing petitioners' claims which would also constitute '504 violations (Appeal of a Child with a Handicapping Condition, 32 Ed Dept Rep 232). Similarly, cases properly before the State Review Officer may raise '504 issues (Applications of the Board of Educ., Ramapo Central School District and of a Child Suspected of Having a Handicapping Condition, Appeal No. 92-5 & 6; Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 92-12). However, where, as here, a petitioner is solely alleging '504 violations, enforcement is within the jurisdiction of the federal courts, the U.S. Department of Justice and the U.S. Department of Education (cf.Appeal of Cochran, 35 Ed Dept Rep 555; Appeal of Roberts, 33 id. 601; Commissioner has no jurisdiction over claims of '504 violations regarding access to school district election facilities).