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Decision No. 15,824

Appeal of RUTH RADOW from action of the Board of Education of the Lawrence Union Free School District regarding expenditure of funds.

  Decision No. 15,824

  (August 20, 2008)

Minerva & D’Agostino, P.C., attorneys for respondent, Melinda Sims, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the approval by the Board of Education of the Lawrence Union Free School District (“respondent”) of the expenditure of funds for the cost of private school tuition for six parentally placed students with disabilities.  The appeal must be dismissed.

On February 27, 2007, respondent approved payment for tuition in the amount of $135,000, or $22,500 per student, in settlement of due process complaints filed on behalf of six students with disabilities by their parents. The students’ parents had placed them in a private academy (“academy”) and sought reimbursement for the 2006-2007 school year.  The academy is not approved to receive public funds for education of students with disabilities pursuant to Commissioner’s regulation §200.7.

A resolution session was held and an agreement reached with the parents of each student.  All the students were represented by counsel and all the hearing requests were withdrawn in return for respondent’s agreement to pay tuition.  This appeal ensued.

Petitioner contends that the expenditure of these funds was improper because an impartial hearing was not held before reaching an individual resolution agreement for each child and because respondent’s Committee on Special Education (“CSE”) did not determine that no appropriate public educational placement could be provided.  Petitioner also alleges that respondent’s decision was driven by considerations other than the best interests of the six children. 

Respondent contends that the appeal should be dismissed as untimely and because petitioner lacks standing.  Respondent also argues that the appeal must be dismissed for failure to join necessary parties.  Respondent denies that the impartial hearing process was not followed and asserts that the settlement agreements were reached consistent with the requirements of federal and state law. 

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  Respondent’s challenged action took place at a meeting on February 27, 2007.  However, the petition was not served until April 4, 2007, more than 30 days later.  Petitioner offers no excuse for her delay in the petition.  Accordingly, the appeal must be dismissed as untimely.

The appeal must also be dismissed for failure to join as necessary parties the parents of the six students with whom respondent executed the resolution agreements that petitioner challenges.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  Because a decision in favor of petitioner would clearly affect the rights of the parents and students who are parties to the settlement agreements, they are necessary parties to this proceeding.  None of the parents or students were named in the caption nor personally served with a copy of the petition.

In addition, the appeal must be dismissed on jurisdictional grounds.         An appeal to the Commissioner of Education is not the proper forum to challenge a written settlement agreement reached at a resolution session scheduled in response to a request for an impartial hearing pursuant to the federal Individuals with Disabilities Education Act (“IDEA”) 20 USC §1415(f)(1)(B) and Education Law §4404(1)(b).  Such agreements are enforceable in any State court of competent jurisdiction or in a United States district court (20 USC §1415[f][1][B][iii][II]; Education Law §4404[1][b]).  Accordingly, the appeal must be dismissed for lack of jurisdiction. 

To the extent petitioner is alleging that a school district has violated a federal or state law or regulation relating to the education of students with disabilities, petitioner may file a complaint with the State Education Department’s Office of Vocational and Educational Services for Individuals with Disabilities (VESID) pursuant to §200.5(l) of the Commissioner’s  regulations, if the alleged violation  occurred not more  than one year prior to the date the State receives the complaint.