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Decision No. 14,630

Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education and the Committee on Special Education of the East Islip Union Free School District regarding services.

Decision No. 14,630

(August 23, 2001)

Pamela Phillips Tucker, Esq., attorney for petitioner

Bouvier, O"Connor, LLP, attorneys for respondent, Arthur H. Ackerhalt, Esq., and Bruce A. Goldstein, Esq., of counsel

CATE, Acting Commissioner.--Petitioner appeals the decision of the Board of Education of the East Islip Union Free School District ("respondent") to deny her an impartial hearing to challenge her son"s individualized education program ("IEP") which does not include a foreign language exemption and does not require respondent to contract with the West Islip Union Free School District ("West Islip") to provide the IEP services. The appeal must be dismissed.

Petitioner and her son reside within the East Islip Union Free School District. Her son, who attends the ninth grade at Saint John the Baptist Diocesan High School ("St. John") in West Islip, is a student with a disability identified by respondent"s Committee on Special Education ("CSE"). At the CSE meeting on August 23, 2000, petitioner requested that respondent contract with West Islip to provide services at St. John. For the 2000-01 school year, respondent"s CSE instead recommended that resource room services be provided five times per week at respondent"s Islip Terrace Junior High School.

By letter dated October 4, 2000, petitioner asked respondent"s superintendent to review the CSE"s determination. Petitioner requested mediation on October 5, 2000, but the scheduled mediation was cancelled on November 28, 2000 because respondent required additional time to contact its attorney. By letter dated January 10, 2001, respondent"s board president offered to reschedule the mediation. Petitioner instead requested an impartial hearing on January 24, 2001. By letter dated February 6, 2001, respondent"s counsel denied petitioner"s hearing request. Petitioner commenced this appeal on March 29, 2001.

Petitioner contends that respondent denied her right to an impartial hearing under Education Law "3602-c and requests an order directing respondent to contract with West Islip to provide resource room services for her son. Petitioner also requests an order exempting her son from foreign language instruction, or in the alternative, directing respondent to immediately appoint an impartial hearing officer to review her request.

Respondent contends that the appeal is premature because its denial of petitioner"s January 24, 2001 hearing request was based on the federal laws cited in her letter, not on Education Law "3602-c, raised for the first time in this appeal. Respondent argues that petitioner should submit her request for a hearing under "3602-c to respondent and then only after respondent grants or denies the request, is the matter ripe for appeal to the Commissioner. Petitioner replies that her January 24, 2001 hearing request included all information necessary to give respondent notice of the dispute and relief sought and that it is not necessary to state the statute upon which the request was made.

Respondent contends that the appeal is untimely because it was commenced more than 30 days after the February 6, 2001 letter denying petitioner"s request for a hearing. Respondent also contends that the requirement in Education Law "3602-c(9) that students must attend regular classes of the public school and not be provided services separately from pupils regularly attending the public schools, precludes it from contracting with West Islip for resource room services at St. John, wherein students are separated from students attending public schools.

Petitioner"s right to a hearing is governed by Education Law "3602-c(2) which provides in pertinent part:

Review of the recommendation of the committee on special education may be obtained by the parent" of the pupil pursuant to the provisions of section forty-four hundred four of this chapter"

The procedure referenced in Education Law "3602-c(2) is set forth in Education Law "4404(1):

If the recommendation of the committee on special education is not acceptable to the parent" of a student" such parents" shall notify the board of education of this situation and the board shall appoint an impartial hearing officer to hear the appeal and make a determination", provided that the board of education or trustees shall offer the parent" the option of mediation".

The January 24, 2001 letter from petitioner"s counsel did not invoke Education Law "3602-c or "4404, but rather, demanded "an Impartial Due Process Hearing pursuant to the Individuals with Disabilities Education Act, "504 of the Rehabilitation Act and the Americans with Disabilities Act (collectively "the Acts")."

Because respondent based its February 7, 2001 denial entirely on an analysis of federal law and is now prepared to consider petitioner"s request under Education Law "3602-c, I agree that it would be premature to decide the merits of the dispute before respondent is first given the opportunity to follow the procedure required by statute. The exclusive jurisdiction of the Commissioner of Education over these matters is triggered later in the process, as set forth in Education Law "3602-c(2):

Such school district shall contract with the school district in which the nonpublic school attended by the pupil is located, for the provision of services pursuant to this section. The failure or refusal of a board of education to provide such services in accordance with a proper request shall be reviewable only by the commissioner upon an appeal brought pursuant to the provisions of section three hundred ten of this chapter.

The record before me does not reflect such a dispute between the school district of residence and the school district of location regarding the provision of services. Rather, petitioner"s dispute with respondent, the school district in which she resides, involves a challenge to the IEP and should be resolved by recourse to an impartial hearing and review by the state review officer under Education Law ""3602-c and 4404. Therefore, the petition must be dismissed.

The appeal is also untimely. An appeal to the Commissioner of Education must be brought within 30 days of the making of the decision or the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). By letter dated February 6, 2001, respondent denied petitioner"s request for an impartial hearing. Petitioner commenced this appeal on March 29, 2001, more than 30 days after her request was denied. Because petitioner offers no cognizable excuse for the delay, the appeal must be dismissed as untimely (Appeal of Swanson, 39 Ed Dept Rep 312, Decision No. 14,247; Appeal of Cannady, 38 id. 88, Decision No. 13,989).

In light of this disposition, I will not address the parties" remaining contentions.