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Decision No. 17,992

Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the City School District of the City of Rye regarding special education.

Decision No. 17,992

(May 12, 2021)

Ingerman, Smith, LLP, attorneys for respondent, Thomas Scapoli, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of Rye (“respondent”) to deny her request for in-home special education services for her son (“the student”).  The appeal must be dismissed. 

During the 2017-2018 and 2018-2019 school years, the student attended school in respondent’s district, where he received special education services.  During those years, respondent granted the student a religious exemption from the immunization requirements of Public Health Law § 2164.

Respondent’s Committee on Special Education (“CSE”) convened on June 6, 2019 and recommended, for the 2019-2020 school year, a 12-month school year program in an 8:1+1 special class in a public school as well as several related services.

On June 13, 2019, Chapter 35 of the Laws of 2019 was enacted, effective immediately, which repealed subdivision nine of § 2164 of the Public Health Law, thus eliminating the religious exemption to immunization requirements to attend school.  With the enactment of Chapter 35 of the Laws of 2019, students may be exempted from New York’s immunization requirements only if they have received a valid medical exemption (see Appeal of J.A., 60 Ed Dept Rep, Decision No. 17,984).

On or about July 16, 2019, petitioner notified respondent’s superintendent that she intended to home school the student for the 2019-2020 school year.  According to an affidavit submitted by respondent’s Director of Pupil Personnel Services and Special Education (“PPS director”), on July 29, 2019, petitioner “requested that the [d]istrict provide special education services to the [s]tudent in [petitioner’s] home so the [s]tudent could access special education services without having to be immunized.”

By letter dated August 8, 2019, the PPS director informed petitioner that her request for the student to receive special education services in petitioner’s home “must be denied.”  The PPS director’s letter stated:

Since you have not yet submitted an IHIP [individualized home instruction plan] which has been approved by the Superintendent ... you are not currently eligible to access special education services under an IHIP.  Even if you had an approved IHIP, your request ... would be denied as you failed to comply with the [statutory] June 1st deadline for requesting special education services to support an IHIP.

On August 9, 2019, petitioner submitted a completed IHIP to the district.  By letter dated August 23, 2019, the superintendent informed petitioner that “the IHIP for the 2019-2020 school year is approved; however, your request for related services is denied.”  This appeal ensued.  Petitioner’s request for relief was granted on September 19, 2019 to the extent that respondent was “directed to convene a meeting of the [CSE] as soon as practicable to develop an Individual Education Services Program for the student.”[1]

Petitioner asserts that she did not meet the June 1 statutory deadline for requesting in-home special education due to the unforeseeable repeal of the religious exemption on June 13, 2019, which was just over a week after the June 1 deadline had passed.  Petitioner requests that her son be treated like a student who recently established residency in the school district, as such students may request special education services after the June 1 deadline (see Education Law  §§ 3602-c [2] [a], [2-c]).  Petitioner further argues that guidance issued by the New York State Department of Health, Office of Children and Families, and State Education Department indicates that, “[f]or the 2019-2020 school year, school districts are encouraged to honor parent requests for homeschooled children who may be impacted by the repeal of religious exemptions to vaccination requirements.”  Petitioner seeks a determination that the student is eligible to receive in-home special education services as a homeschooled student for the 2019-2020 school year.

Respondent asserts, among other things, that petitioner fails to state a claim upon which relief may be granted; that petitioner’s request for in-home special education services was untimely; and that its decision to deny the student in-home special education services was rational. 

The appeal must be dismissed for lack of jurisdiction.  Petitioner seeks a determination that the student is entitled to receive in-home special education services as a homeschooled student for the 2019-20 school year.  Claims brought to enforce rights arising under the Individuals With Disabilities Education Act (“the IDEA”) must be addressed through the due process provisions of the IDEA (20 USC § 1415) and Education Law § 4404 or the State complaint procedure outlined in section 200.5 of the Commissioner’s regulations; such claims may not be addressed in an appeal brought pursuant to Education Law § 310 (Appeal of a Student with a Disability, 52 Ed Dept Rep, Decision No. 16,375; Appeal of R.J.K. and L.K., 50 id., Decision No. 16,232; Appeal of a Student with a Disability, 46 id. 258, Decision No. 15,500).  Therefore, the appeal must be dismissed (Appeal of a Student with a Disability, 59 Ed Dept Rep, Decision No. 17,859; Appeal of a Student with a Disability, 40 id. 170, Decision No. 14,451).[2]

In light of this determination, I need not consider the parties’ remaining contentions. 




[1] By letter dated September 20, 2019, my Office of Counsel clarified that the September 19, 2019 stay order did “not direct where related services shall be provided.”


[2] Even if I had jurisdiction over petitioner’s request for relief, it would be dismissed as moot.  Petitioner only requests relief concerning the 2019-20 school year, which has ended.  Moreover, students who attend nonpublic schools must request special education services, with limited exceptions, “on or before the first day of June preceding the school year for which the request is made” (Education Law § 3602-c [2]).