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Decision No. 15,169

Appeal of the BOARD OF EDUCATION OF THE EAST HAMPTON UNION FREE SCHOOL DISTRICT from action of the Board of Education of the Springs Union Free School District, and the Parent of a Student with a Disability regarding an impartial hearing.

Decision No. 15,169

(January 31, 2005)

Cooper, Sapir & Cohen, P.C., attorneys for petitioner, Robert E. Sapir, Esq., of counsel

Mark A. Cuthbertson, Esq., attorney for respondent Board of Education of the Springs Union Free School District

Phyllis K. Saxe, Esq., attorney for respondent Parent of a Student with a Disability

MILLS, Commissioner.--Petitioner challenges the jurisdiction of an impartial hearing officer ( "IHO") to consolidate into one impartial hearing claims by a parent of a student with a disability ("respondent parent") against petitioner and respondent Board of Education of the Springs Union Free School District (" Springs"). The appeal must be dismissed.

Respondent parent resides in Springs� district with her son, a student with a disability, who attended eighth grade in the Springs Elementary School during the 2002-2003 school year. Prior to the conclusion of the 2002-2003 school year, respondent parent withdrew her son and placed him in a residential school in Texas, where he remained until October 2003, the beginning of ninth grade. In September 2003, respondent parent requested an impartial hearing from Springs seeking reimbursement for tuition for 2002-2003.

Springs contracts with petitioner to educate all of its resident students in grades 9 through 12. In November 2003, respondent parent enrolled her son at East Hampton High School in petitioner�s district. Petitioner�s Committee on Special Education ( "CSE") scheduled a meeting regarding the student to be held on November 20, 2003. By letter dated November 7, 2003, respondent parent requested an impartial hearing from petitioner because no individualized education program ("IEP" ) had been developed for her son. On December 3, 2003, respondent parent notified the chairperson of petitioner�s CSE that she had withdrawn her son and placed him in a residential school in upstate New York.

In January 2004, petitioner and respondents agreed to consolidate the two hearing requests into one impartial hearing before a single IHO. The consolidated hearing was scheduled to begin March 4, 2004. The hearing was postponed when petitioner commenced this appeal. Petitioner�s request for interim relief was denied on March 15, 2004.

Petitioner contends that it is not a proper party to the impartial hearing because Springs is the student�s school district of residence and, therefore, is responsible for providing him with a free appropriate public education ("FAPE"). Petitioner concedes that its CSE is responsible for the student but contends that it must provide Springs with the student�s test results and evaluations and must approve the recommendations of petitioner�s CSE. Petitioner argues that its contractual obligations are limited and do not extend to providing the student with a FAPE. Petitioner contends that the Commissioner, and not the IHO, has authority to determine the proper parties to an impartial hearing.

Springs contends that the appeal is untimely because it was not commenced within 30 days of receipt of the November 7, 2003 hearing request, the act of which petitioner complains. Springs further contends that the appeal should be dismissed because the Commissioner does not have jurisdiction over an appeal from an interim ruling of an IHO. Springs argues that its contract with petitioner is broadly worded to require petitioner to provide like and equal instruction to that imparted to the children of like ages, grades and departments and accords Springs students with the same rights and privileges enjoyed by petitioner�s resident children. Springs thus contends that petitioner is a proper party to the impartial hearing because it must assume all CSE responsibilities for the student and provide him with a FAPE.

Section 275.16 of the Commissioner�s regulations requires that an appeal be initiated with 30 days of the making of the decision or the performance of the act complained of. The Commissioner, in his sole discretion, may excuse the failure to commence an appeal within the time specified for good cause shown in the petition (8 NYCRR �275.16).

The appeal must be dismissed for lack of jurisdiction pursuant to �276.10(b) of the Commissioner�s regulations, which provides, in relevant part:

Appeals from an impartial hearing officer�s ruling, decision or refusal to decide an issue prior to or during a hearing shall not be permitted�

Petitioner may object to the IHO�s jurisdiction at the impartial hearing and in an appeal of the IHO�s final determination to the State Review Officer, at the conclusion of the impartial hearing.

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