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Decision No. 17,398

Application of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Central Islip Union Free School District regarding home instruction.

Decision No. 17,398

(May 30, 2018)

Kevin A. Seaman, Esq., attorney for respondent

ELIA, Commissioner.--Petitioner appeals a determination of the Board of Education of the Central Islip Union Free School District (“respondent”) denying his request for home instruction.  The appeal must be dismissed.

Petitioner resides within the Central Islip Union Free School District and is the father of a student with cerebral palsy and multiple disabilities (the “student”).  Although the petition is devoid of factual allegations against respondent, the record indicates that petitioner attempted to submit a request for approval to have the student home-instructed because of petitioner’s dissatisfaction with the progress the student was making in his public school program.  The record further indicates that, by letter dated November 2, 2017, respondent’s superintendent denied petitioner’s request for approval of an individualized home instruction plan (“IHIP”) for the student pursuant to 8 NYCRR §100.10.  The letter indicated that petitioner’s proposed application for home instruction was deficient because it failed to comply with 8 NYCRR §100.10(d)(2), which requires “a list of the syllabi, curriculum materials, textbooks or plan of instruction to be used in each of the required subjects listed in subdivision (e) of this section.”  The letter also stated as follows:

In the face of your son’s extremely limited intellectual/academic capabilities ... there would be no manner in which you could, effectively, meet the terms of [§100.10]....  As you know, the course of instruction undertaken by Western Suffolk BOCES and then Eastern Suffolk BOCES did not include any consideration of educating the child within the courses cited within §100.10 of the Commissioner’s Regulation.

Likewise, there would be no ability for you to ‘home school’ your child as such ‘home schooling’ could not possibly provide for educating the child in the listed courses of instruction cited [in §100.10(e)].

Petitioner subsequently appealed the superintendent’s determination to respondent.  By letter dated December 12, 2017, respondent’s board president informed petitioner that the board had upheld the superintendent’s determination.  This appeal ensued. 

Although not entirely clear from the petition, petitioner appears to assert that respondent improperly denied petitioner’s request for home instruction pursuant to §100.10 of the Commissioner’s regulations.  Petitioner requests “approval of homeschooling for [his] son.”

Respondent contends that the appeal must be dismissed as untimely and for failure to contain a clear and concise statement of petitioner’s claim showing that petitioner is entitled to relief.  Respondent denies any wrongdoing and maintains that it fully complied with §100.10 of the Commissioner’s regulations pertaining to home instruction.  

I must first address the procedural issues.  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 Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of C.S., 48 id. 497, Decision No. 15,929).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of K.W., 48 id. 451, Decision No. 15,912).  Petitioner appeals respondent’s determination dated December 12, 2017.  According to petitioner’s affidavit of service, the petition was served on February 8, 2018.  Even affording the five customary days for mailing, the service of petitioner’s appeal on February 8, 2018, is well over 30 days from petitioner’s receipt of the district’s December 12, 2017 letter, and petitioner has not provided any explanation for his delay.  Indeed, petitioner did not submit a reply or other evidence to explain his delay at all.  Therefore, the appeal must be dismissed as untimely. 

Moreover, the appeal must be dismissed for failure to state a claim upon which relief may be granted.  A petition must contain “a clear and concise statement of the petitioner’s claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled” (8 NYCRR §275.10).  Such statement must be sufficiently clear to advise a respondent of the nature of petitioner’s claim and of the specific act or acts complained of (id.).  Where petitioner is not represented by counsel, a liberal interpretation of this regulation is appropriate absent prejudice to the opposing party (Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,244; Appeal of Stieffenhofer, 48 id. 231, Decision No. 15,846).  Where a petition fails to state a comprehensible claim and fails to identify the specific remedy sought, it will be dismissed (see Appeal of C.P., 55 Ed Dept Rep, Decision No. 16,784; Appeal of Stepien, 48 id. 487, Decision No. 15,926).  The petition is devoid of any allegations explaining why petitioner is entitled to the relief sought – he has failed to establish any legal basis for concluding that respondent’s decision was arbitrary or capricious or that respondent acted contrary to law. 

Although the appeal must be dismissed on procedural grounds, to the extent the issues raised in this appeal remain ongoing, I note that in respondent’s December 12, 2017 letter, respondent references the student’s Individualized Education Plan (“IEP”) and placement within two different Board of Cooperative Educational Services (“BOCES”) settings.  Thus, it appears from the record that the student is receiving special education and/or related services pursuant to the federal Individuals with Disabilities Education Act (“IDEA”) and Article 89 of the Education Law and to the extent petitioner has concerns about the appropriateness of the student’s current educational placement, he has the right to challenge such placement in an impartial hearing under the provisions of those statutes.  In this regard, I note that claims brought to enforce rights under the IDEA and Article 89 of the Education Law must be addressed through the due process provisions of the IDEA and Education Law §4404; such claims may not be addressed in an appeal brought pursuant to Education Law §310 (Appeal of a Student with a Disability, 56 Ed Dept Rep, Decision No. 16,956; Appeal of R.J.K. and L.K., 50 id., Decision No. 16,232).

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