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Decision No. 14,074

Appeal of a STUDENT WITH A DISABILITY, by her parent, from action of the Board of Education of the Wappingers Central School District regarding special education services.

Decision No. 14,074

(February 5, 1999)

Michael K. Lambert, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner challenges the actions of the Board of Education of the Wappingers Central School District ("respondent") concerning the implementation of the recommended individualized education program (IEP) for her child. The appeal must be dismissed.

Petitioner's daughter is classified by respondent's committee on special education (CSE) as a student with a disability. On July 17, 1997 petitioner requested a hearing by an impartial hearing officer (IHO) concerning the provision of services to her daughter. She withdrew this request on July 18, 1997 claiming that respondent did not appoint an IHO from the rotational list required by 8 NYCRR "200.2(e)(1). Petitioner commenced this appeal on August 28, 1997. Subsequently, petitioner requested an impartial hearing regarding respondent's alleged failure to properly implement her daughter's IEP for the 1997-98 school year. Petitioner requested that the hearing also address respondent's alleged failure to develop an appropriate IEP for the 1997-98 school year. An impartial hearing officer (IHO) was appointed and a hearing scheduled for August 13, 1998. The IHO's decision was issued on September 10, 1998, finding in respondent's favor. Petitioner appealed the IHO's decision to the State Review Officer (SRO), who on November 30, 1998 annulled the IHO's findings with respect to the appropriateness of the child's IEP and its implementation and ordered that a new hearing officer be appointed to conduct a hearing on these issues.

Petitioner’s allegations are numerous and difficult to follow. However, it appears that petitioner is dissatisfied with the provision of services to her child. She also alleges improper sharing of information between various agencies performing evaluations of her child and those providing services. Petitioner maintains that she has not been given timely notice of her daughter's evaluations, that she has not been given sufficient input into her daughter’s IEP, and that some of the evaluations of her daughter are biased and contain erroneous information.

Respondent contends that the petition fails to state a claim upon which relief can be granted, and that petitioner has failed to prove it acted improperly. Respondent further contends that I lack jurisdiction to address petitioner's claims as they should be heard by an IHO.

The appeal must be dismissed on jurisdictional grounds. When a parent disagrees with the provision of a free appropriate public education (FAPE) to a student with a disability, generally 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, 36 Ed Dept Rep 4). If a party disagrees with the decision of an IHO he may appeal that decision to the State Review Officer. Here, petitioner complains about the provision of services to her daughter and seeks relief from the Commissioner while an impartial hearing is pending. The impartial hearing is the appropriate forum to address whether the services and IEP in question are appropriate. The IHO may also consider any matter relating to the evaluation, including whether or not petitioner has received timely notice of her daughter's evaluations, and whether or not the evaluations are biased or contain misinformation (20 USC "1415(b)(6), 1415 (f)(1)). Therefore, this appeal must be dismissed for failure to exhaust administrative remedies. I have no jurisdiction over these complaints.