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Decision No. 14,451

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

Decision No. 14,451

(August 31, 2000)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Susan Johns, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the individualized education program ("IEP") developed for his daughter for the 1999-2000 school year by the Committee on Special Education ("CSE") of the Board of Education of the Fayetteville-Manlius Central School District ("respondent"). The appeal must be dismissed.

Petitioner’s daughter is eighteen years old and respondent’s CSE has identified her as a student with a disability. The CSE met on June 23, 1999 to develop her IEP for the 1999-2000 school year. The CSE concluded that her program should consist of home-based instruction. According to the IEP, the instruction would be provided by a teaching assistant rather than directly by a teacher.

Petitioner complained about the IEP to the State Education Department (SED) on December 21, 1999. On January 3, 2000, petitioner complained to respondent’s superintendent regarding the IEP’s provision for a teaching assistant. The superintendent responded on January 10, 2000, that advice from counsel supported the use of a teaching assistant, but that petitioner may request the CSE to reconvene to review his daughter’s program, initiate mediation, or initiate an impartial hearing.

On February 17, 2000, the CSE met and developed an IEP that specified direct instruction by a certified special education teacher and the assistance of a 1:1 teaching assistant. On February 28, 2000, petitioner commenced this appeal seeking to prohibit respondent from using teaching assistants to provide home-based instruction. By letter dated March 3, 2000, SED informed the superintendent that it had investigated petitioner’s complaint and concluded that the document prepared as a result of the June 23, 1999, CSE meeting was not a valid IEP.

Petitioner contends that the June 23, 1999 IEP improperly proposed the use of a teaching assistant to provide home-based instruction services, contrary to the Education Law.

In defense of the June 23, 1999 IEP, respondent denies that teaching assistants are prohibited from providing home-based instruction and asserts that Education Law "3009(2) and 8 NYCRR 80.33(b) allow teaching assistants to provide direct instructional services to a student, as long as the teaching assistant is working under the general supervision of a certified teacher and provided that the teaching assistant is not required to work in the direct physical presence of said teacher.

Respondent contends that the petition is moot because the CSE amended the June 23, 1999 IEP on February 17, 2000 to specify direct instruction by a certified special education teacher and the assistance of a 1:1 teaching assistant in the home setting. Respondent further contends that the Commissioner lacks jurisdiction over IEP disputes. Respondent also contends that the appeal is untimely because the petition was not served until February 14, 2000, beyond thirty days from development of the June 23, 1999 IEP.

The appeal must be dismissed on jurisdictional grounds. The CSE must, in the first instance, determine the special education services to be provided in the IEP. If the recommendation of the CSE is not acceptable to the parent, and the parent notifies the board of education of this situation, the board shall appoint an impartial hearing officer to hold a hearing and make a determination within forty-five days (Education Law "4404(1); 8 NYCRR "200.5). Because petitioner contends that the CSE failed to provide an appropriate IEP, 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, 39 Ed Dept Rep 354, Decision No. 14,257; Appeal of a Student with a Disability, 37 id. 565, Decision No. 13,928). Parties dissatisfied with the decision of an impartial hearing officer may appeal such decision to the State Review Officer. In this case, petitioner did not request an impartial hearing. However, he did submit a complaint to SED that resulted in the changes he sought to his daughter’s 1999-2000 IEP and apparent resolution of the dispute. Because an appeal pursuant to Education Law "310 is not the proper forum to resolve IEP disputes, the appeal must be dismissed for lack of jurisdiction.