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Decision No. 13,928

Appeal of a STUDENT SUSPECTED OF HAVING A DISABILITY, by her parent, from action of the Board of Education of the Sewanhaka Central High School District regarding eligibility for special education services.

Decision No. 13,928

(April 30, 1998)

Long Island Advocacy Center, Inc., attorneys for petitioner, Sherrie Levine, Esq., of counsel

Douglas E. Libby, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner challenges the alleged failure of the Committee on Special Education ("CSE") for the Board of Education of the Sewanhaka Central High School District ("respondent") to find her daughter eligible for special education services. Petitioner seeks an order referring her daughter to the CSE and directing the CSE to classify her daughter as a student with a disability in the category of emotionally disturbed or other health impaired, and to provide an appropriate placement. In the alternative, petitioner asks that I order respondent to hold an impartial hearing to determine her daughter's classification and special education placement. The appeal must be dismissed.

Petitioner's daughter is seventeen years old and has not received a high school diploma. She was initially referred to respondent's CSE on February 1, 1993 due to her failing grades, problematic socialization with peers, lateness to classes and lack of impulse control. On August 31, 1993, the CSE determined that she was not a student with a disability. The student was referred to the CSE a second time, after being released from a psychiatric facility, and was again found to be ineligible for special education on July 8, 1994. The student was placed on home instruction in the spring of 1994 and was still out of school when she was referred to the CSE and found ineligible a third time on March 19, 1996.

Petitioner's daughter became pregnant during the spring of 1996. Respondent attempted to place her in a teenage pregnancy program offered by the Nassau County Board of Cooperative Educational Services but was notified on May 15, 1996 that the student would not be accepted. On September 9, 1996, petitioner was invited to a meeting of respondent's child study team to discuss the possible need for program accommodations for her daughter under Section 504 of the Rehabilitation Act but no plan was developed.

Sometime after giving birth on November 30, 1996, the student resumed home instruction. The CSE scheduled an evaluation of the student in the spring of 1997, but she was not at home and was not keeping her tutoring appointments. Her county case manager subsequently informed respondent's director of special education that the student had been unavailable for evaluation in the spring of 1997 "due to some emotional difficulties but was available as of August 5, 1997.

On September 8, 1997, petitioner and her daughter signed a form witnessed by a school official, withdrawing the student from respondent's high school because the student was working full time. By letter dated September 18, 1997, respondent's school psychologist contacted petitioner to confirm whether her daughter would be completing the psychoeducational evaluation begun September 5, 1997 and whether the CSE should review the testing completed thus far.

Petitioner contends that her daughter has failed academic courses and exhibited behavioral and emotional problems since her initial referral to the CSE in 1993 and should be classified as a student with a disability. Respondent contends that the Commissioner does not have jurisdiction to grant the relief petitioner seeks because only the CSE is authorized to make the determination to classify a student as Emotionally Disturbed or Other Health Impaired. Respondent also contends that it will convene its CSE and evaluate the student but that petitioner has refused to consent to an updated psychiatric evaluation. Respondent further contends that petitioner has failed to exhaust administrative remedies by not requesting an impartial hearing to appeal any of the three CSE determinations finding her daughter ineligible for special education services. Finally, respondent contends that the decision by petitioner and her daughter to withdraw from its public schools moots the appeal because the student is not of compulsory school age.

The appeal must be dismissed on jurisdictional grounds due to the nature of the relief requested. The CSE must, in the first instance, determine a child's eligibility to receive special education services (Education Law "4402; 8 NYCRR 200.4). If the recommendation of the CSE is not acceptable to the parents, or if the CSE or board of education fails to effectuate the recommendation in a timely manner, and the parents notify the board of this situation, the board shall appoint an impartial hearing officer to hear the appeal and make a determination within forty-five days (Education Law "4404(1); 8 NYCRR 200.5(c)). Because petitioner contends that respondent failed to identify her child as a student with a disability and disputes the CSE's determinations of August 31, 1993, July 8, 1994, and March 19, 1996, the proper avenue of redress is to request an impartial hearing (Education Law 4404(1); 8 NYCRR "200.5; Appeal of a Student with a Disability, 36 Ed Dept Rep 4; Appeal of a Student with a Disability, 35 id. 405; Appeal of Smith, 32 id. 109; Appeal of a Child Suspected of Having a Handicapping Condition, 30 id. 448). If either party is dissatisfied with the hearing officer's decision, they may seek review by the State Review Officer pursuant to Education Law 4404(2). The record indicates that petitioner has never requested an impartial hearing to appeal any of the CSE determinations. Therefore, since the record contains no evidence that respondent is unwilling to convene its CSE or appoint an impartial hearing officer upon petitioner's request, the appeal must be dismissed for lack of jurisdiction.

In light of the foregoing disposition, I will not address the parties' remaining claims.