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Decision No. 15,079

Appeal of a STUDENT SUSPECTED OF HAVING A DISABILITY, by her parent, from action of the Board of Education of the Mamaroneck Union Free School District regarding special education.



(July 15, 2004)


Shaw & Perelson, LLP, attorneys for respondent, Lisa S. Rusk and David S. Shaw, Esqs., of counsel


MILLS, Commissioner.--Petitioner appeals the determination by the Board of Education of the Mamaroneck Union Free School District ("respondent") that his daughter is not eligible for special education services.  The appeal must be dismissed.

In June 2003, petitioner referred his daughter to respondent"s Committee on Special Education ("CSE") for evaluation.  In August 2003, the CSE met and determined the student was not eligible for special education.

Petitioner disputed the CSE"s determination and ultimately requested and received a hearing before an impartial hearing officer ("IHO").  In March 2004, petitioner commenced this appeal.  In April 2004, the IHO issued a decision in the impartial hearing.

Petitioner contends that respondent failed to pay for an independent evaluation or initiate an impartial hearing.  Petitioner also contends that respondent failed to perform required evaluations prior to convening the CSE and disregarded evaluations supporting a classification of learning disability for his daughter.  Petitioner argues that unnecessary delays by respondent denied his daughter services.

Petitioner seeks an order that respondent classify his daughter as learning disabled and grant her testing accommodations. In the alternative, petitioner seeks an order that respondent pay for independent evaluations and provide testing accommodations.

Respondent contends that the appeal should be dismissed for lack of jurisdiction.  Respondent also maintains that the appeal is moot and that petitioner failed to join the IHO as a necessary party.

Federal and state law establish procedural safeguards to ensure the opportunity for parental participation in, and the appeal of, decisions relating to eligibility for special education services to children with disabilities.  The Individuals with Disabilities Education Act ("IDEA") and Education Law "4404 provide parents with the right to an impartial hearing regarding a complaint on any matter relating to the identification, evaluation, or educational placement of a child, or the provision of a free appropriate public education to such child (20 USC "1415).

Petitioner"s claims relate entirely to respondent"s alleged procedural violations of the IDEA and its alleged failure to find his daughter eligible for special education services.  Because these are special education issues governed by the IDEA and the relief sought includes a directive to the CSE to classify petitioner"s daughter as learning disabled, provide her with testing accommodations, pay for independent evaluations, and other determinations of his daughter"s rights to special education services and procedures, they are properly the subject of an impartial hearing brought pursuant to Education Law "4404(1) and "200.5(c) of the Commissioner"s regulations.  A hearing officer must, in the first instance, determine these issues.

The record reflects that petitioner received an impartial hearing and decision from the IHO.  A person who is dissatisfied with the decision of an IHO may appeal such decision to the State Review Officer ("SRO") pursuant to Education Law "4404(2).  Consequently, this appeal must be dismissed for lack of jurisdiction (Education Law "4404(1) and (2); 8 NYCRR "200.5(c); Appeal of a Student with a Disability, 40 Ed Dept Rep 170, Decision No. 14,451; Appeal of a Student with a Disability, 39 id. 354, Decision No. 14,257; Appeal of a Student with a Disability, 39 id. 1, Decision No. 14,154).

In light of this disposition, I need not address the parties" remaining claims.