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Decision No. 16,286

Appeal of a STUDENT WITH A DISABILITY, by his father, from action of the Board of Education of the Hicksville Union Free School District regarding special education services.

Decision No. 16,286

(August 17, 2011)

Guercio & Guercio, LLP, attorneys for respondent, John P. Sheahan, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Hicksville Union Free School District (“respondent”) to deny his son continued placement at the Association for the Help of Retarded Children (“AHRC”) for an additional school year.  The appeal must be dismissed.

When petitioner commenced this appeal, his son, a student classified as a student with a disability, was attending AHRC in Brookville, N.Y., and was scheduled to graduate with an Individualized Education Program (“IEP”) diploma on June 24, 2011.[1]  Petitioner states that on several occasions, beginning in January 2011, he verbally requested that the district permit his son to remain at AHRC for an additional year.  Having received no response, he finally made such request in writing by letter dated May 11, 2011.

On May 24, 2011, a meeting of the Sub-Committee of the Committee on Special Education (“CSE”) regarding the student was held at AHRC with several AHRC representatives, petitioner, and the district’s Director of Special Education and Pupil Personnel Services (“director”) and school psychologist.  By letter dated May 27, 2011, the director notified petitioner and his wife that the CSE recommended that their son receive an IEP diploma at the end of June 2011 and did not recommend placement at AHRC for an additional year.  The director explained that their son was not eligible for a special education program, placement and services from the district for the 2011-2012 school year because he would turn 21 on June 21, 2011.  This appeal ensued.  Petitioner’s request for interim relief was denied on June 8, 2011.

Petitioner admits that his son was born on June 21, 1990.  He contends, however, that there are mitigating circumstances that warrant the State Education Department (“SED”) and the district to authorize an additional year of placement at AHRC for his son beyond his 21st birthday.  He argues that placement should be continued because his son’s birthday is only 10 days before the beginning of the 2011-2012 school year, and, more importantly, to compensate for the education his son lost when he was denied his right to a free appropriate public education (“FAPE”) during the 2004-2005 school year.  He also contends that the district’s delay in responding to his request until close to the end of the 2010-2011 school year hindered his due process right to bring this appeal and receive a decision prior to the end of the school year.  Petitioner seeks an additional year of education for his son at AHRC, including the summer program, to compensate for his son’s alleged loss of FAPE in 2004-2005.

Respondent contends that the appeal must be dismissed as untimely, moot and because the Commissioner lacks jurisdiction over special education issues.  In addition, it contends that the student is statutorily ineligible for an additional year of placement and that petitioner’s FAPE claim was previously litigated and is thus barred by resjudicata, collateral estoppel, forum shopping and election of remedies.

The appeal must be dismissed on jurisdictional grounds.  The CSE, in the first instance, determines the special education services to be included in the IEP.  Parents with a complaint on any matter relating to the identification, evaluation or educational placement of a child, or the provision of FAPE to such child, have the right to an impartial hearing pursuant to the Individual with Disabilities Education Act (“IDEA”) (20 U.S.C. §1415) and Education Law §4404(1)(a) (Appeal of a Student with a Disability, 48 Ed Dept Rep 112, Decision No. 15,808; Appeal of a Student with a Disability, 46 id. 101, Decision No. 15,453).

Petitioner challenges the CSE’s recommendation to discontinue his son’s placement and seeks an additional year to compensate for alleged denial of FAPE in 2004-2005. Therefore, the proper avenue of redress would be to request an impartial hearing, not to institute an appeal under Education Law §310[2](Education Law §4404[1]); 8 NYCRR §200.5; Appeal of a Student with a Disability, 48 Ed Dept Rep 112, Decision No. 15,808; Appeal of a Student with a Disability, 46 id. 101, Decision No. 15,453).

Although the appeal must be dismissed for the reasons discussed above, I note that Education Law §3202(1) provides, in pertinent part:

A person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition.

In addition, Education Law §4402(5) provides:

Notwithstanding any provisions of this article to the contrary or the provisions of [§3202] of this chapter, a child with a handicapping condition who reaches the age of twenty-one during (a) the period commencing with the first day of July and ending on the thirty–first day of August shall if otherwise eligible, be entitled to continue in a  July and August program until the thirty-first day of August or until the termination of the summer program, whichever shall first occur; or (b) the period commencing on the first day of September and ending on the thirtieth day of June shall be entitled to continue in such program until the thirtieth day of June or until the termination of the school year, whichever shall first occur.

Petitioner admits that his son was born on June 21, 1990.  Thus, he turned 21 on June 21, 2011 and, pursuant to Education Law §§3202(1) and 4402(5), he is no longer entitled to attend public school in the district or to continue in his program beyond June 30, 2011.  Accordingly, petitioner’s son is simply ineligible to remain in his placement for the 2011-2012 school year.

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



[1] According to respondent, the student has obtained his IEP diploma.

[2] The record indicates however, that petitioner has already raised the same claims regarding FAPE in an action before the United States District Court, Eastern District of New York, which dismissed such claims (Schafer v. Hicksville Union Free School Dist., 2011 WL 1322903, E.D.N.Y., March 31, 2011 (No. 06-CV-2531 JS ARL).  It is well settled that the prior commencement of an action or proceeding in another forum for the same relief constitutes an election of remedies.