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Decision No. 16,911

Appeal of A STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Hempstead Union Free School District regarding educational placement.

Decision No. 16,911

(June 6, 2016)

Guercio & Guercio, LLP, attorneys for respondent, Barbara J. Emigholz, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals from action of the Board of Education of the Hempstead Union Free School District regarding her son’s educational placement.  The appeal must be dismissed.

Petitioner’s son attends a special education program operated by the Nassau County Board of Cooperative Educational Services (“BOCES”) and located at a BOCES building serving elementary school students (“current educational placement”).  On February 10, 2016, petitioner attended a meeting of respondent’s committee on special education ("CSE").  At that meeting, the CSE determined to continue the student in his current educational program and placement pending further evaluation and screening for possible placement in an Intensive Support Program.  According to the record, petitioner provided consent for a psychiatric evaluation but, apparently, did not produce the child for the scheduled evaluation on March 4, 2016.  Thereafter, she revoked consent for the evaluation and screening for the Intensive Support Program.  It appears that petitioner arranged an in-take appointment for her son at North Shore Family Guidance.

A subsequent CSE meeting was held on March 30, 2016, at which petitioner requested an interim placement of home instruction for her son.  After considering that request and the student's current educational placement, the CSE determined that the student's current placement was safe and appropriate as an interim placement pending the completion of an updated psychiatric evaluation and, if appropriate, screening for the Intensive Support Program.  Petitioner disagreed with the CSE's determination and was provided with a copy of the Procedural Safeguards Notice required under Part 200 of the Commissioner’s regulations.  This appeal ensued.  As part of her appeal, petitioner seeks an interim order placing her son on home instruction for the remainder of the 2015-2016 school year.

Petitioner challenges the educational placement of her son, alleging that he is not receiving a "proper education" in his current educational placement, citing to specific concerns regarding his safety, emotional well-being, and the current educational placement's capacity to manage his aggressive behavior.  Specifically, petitioner contends that: her son acts out “in a manner that he has not in other school settings;” his behaviors have gotten worse; he has had numerous “incidents” in this setting and apparently has been suspended several times[1]; he spends an excessive amount of time in “the blue room”; he makes threats to staff members; he harms himself; and he comes home with bruises from staff members “grabbing him too hard.”[2]  As relief, petitioner requests that the student be placed on home instruction for the remainder of the school year and also appears to be seeking home instruction thereafter. 

Respondent raises several procedural defenses as well as substantive assertions.  Respondent asserts that, to the extent petitioner challenges her son’s special education placement, the appeal must be dismissed for lack of subject matter jurisdiction.  Specifically, respondent states that "to the extent that the Petitioner wishes to raise any claim or request relief under the [Individuals with Disabilities Education Act], such claim or request is not properly brought before the Commissioner."  Respondent also asserts, alternatively, that, as petitioner did not request home instruction pursuant to the district's "Homebound Instruction Policy" or appeal to the board under such policy, the appeal should be dismissed as premature and/or for failure to exhaust administrative remedies.  Respondent also claims that the appeal was not properly served.  Finally, respondent maintains that petitioner failed to state facts and law upon which relief may be granted.  

The appeal must be dismissed for lack of subject matter jurisdiction.  Petitioner is challenging the appropriateness of her son’s special education program and placement.  The Individuals with Disabilities Education Act (“IDEA”) and Education Law, Article 89 provide parents with the right to an impartial hearing regarding a complaint with respect to any matter relating to the identification, evaluation, or educational placement of a child, or the provision of a free appropriate public education (“FAPE”) to such child (20 USC §1415; Education Law §4404[1]).  Claims brought to enforce rights under the IDEA must be addressed through the due process provisions of the IDEA (20 USC §1415) and Education Law §4404; such claims may not be addressed in an appeal brought pursuant to Education Law §310 (Appeal of R.J.K. and L.K., 50 Ed Dept Rep, Decision No. 16,232; Appeal of a Student with a Disability, 46 id. 258, Decision No. 15,500).  Because petitioner is raising special education placement claims governed by the IDEA and Education Law, Article 89, they are properly the subject of an impartial hearing brought pursuant to Education Law §4404(1) and §200.5(j) of the Commissioner’s regulations.  Therefore, the appeal must be dismissed for lack of jurisdiction.

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




[1] It appears that petitioner’s son was suspended at the time this appeal was commenced.


[2]Respondent notes that it has treated petitioner’s complaint as an allegation of child abuse in an educational setting and commenced an inquiry in accordance with the requirements of Education Law, Article 23-B.  Petitioner does not here challenge respondent’s compliance with the requirements of that statute.