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Decision No. 18,054

Appeal of C.D., on behalf of her child, from action of the Board of Education of the Valley Central School District regarding special education services.

Decision No. 18,054

(October 27, 2021)

Sean C. Eccles, Esq., attorney for petitioner

Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, attorneys for respondent, Neelanjan Choudhury, Esq., of counsel

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

Petitioner’s child is a student with a disability.  Respondent’s Committee on Special Education (“CSE”) determined that the student’s educational needs could not be adequately addressed within the district.  Accordingly, for the 2018-2019 school year, the CSE developed an Individualized Education Program (“IEP”) that placed the student in a neighboring district, where he received related services.

Petitioner met with the CSE on June 7 and 19, 2019 to discuss the student’s progress and develop his IEP for that summer and the 2019-2020 school year.  According to an affidavit submitted by respondent’s director of special education (“director”), petitioner disagreed with the location and frequency of services to be provided, and the parties therefore agreed to seek an alternative out-of-district program for the student. 

On June 13, 2019, Chapter 35 of the Laws of 2019 was enacted, effective immediately, which repealed subdivision nine of § 2164 of the Public Health Law (PHL), thus eliminating the religious exemption to immunization requirements to attend school.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).  Prior to the repeal of PHL § 2164 (9), respondent had granted the student a religious exemption from the law’s immunization requirements.

By email dated July 1, 2019, the director asked petitioner if the student had been vaccinated as required by the newly enacted law.  Petitioner responded that she “would not be further inoculating [the student].” 

By email dated July 15, the director again inquired about the student’s vaccination status.  She noted that if she did not receive proof later that day that the student had received all required vaccinations, he would be “unable to continue going to school until the vaccination requirements are met.”  Petitioner responded that the student would not receive the required vaccines because of the family’s religious beliefs.  According to the director’s affidavit, at a CSE program review meeting on July 16, 2019, petitioner “reiterated that [the student] would not be returning to school unless the immunization law was overturned.”

On or about August 15, 2019, petitioner submitted an Individualized Home Instruction Plan (“IHIP”) to the district.  In an email to the director dated September 5, 2019, petitioner inquired why the district had not developed an Individualized Education Services Program (“IESP”) for the student in light of petitioner’s decision to homeschool him.  In response, the director informed petitioner that the district had approved the student’s IHIP, but the CSE would need to meet to develop his IESP.  According to the director’s affidavit, “around this time, the District began to question whether [the student] was entitled to IESP services while being homeschooled pursuant to an IHIP, because the District did not have any record of Petitioner notifying the District’s Board of Education prior to June 1, 2019 of her intent to request IESP services.” 

In an email to respondent’s deputy superintendent dated October 7, 2019, petitioner sought to confirm her understanding that respondent “was not willing to conduct an IEP/IESP meeting for [the student] . . . because the special education services were not requested by June 1, 2019.”  The deputy superintendent replied: “Yes, you are correct.  The district’s official position is to follow the advice of our attorney.  He has advised us that we should be consistent with following the June 1 deadline as the district has done in the past.”

According to the director’s affidavit, on or about October 18, 2019, the district received documentation indicating that the student had received all required immunizations.  Accordingly, the director “re-enrolled [the student] as a public-school student and facilitated temporary home instruction for [the student] while the District recommenced its search for [out of district] programs.”

In January 2020, respondent again disenrolled the student from its schools.  On January 30, 2020, respondent received from petitioner, on behalf of the student, a new Notice of Intent to Homeschool and IHIP.  By email dated March 6, 2020, petitioner informed respondent’s school nurse that the student was “not getting any more needles[,] period.”  This appeal ensued.  Petitioner’s request for interim relief was granted on May 13, 2020 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.”

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 approximately two weeks after the June 1 deadline had passed.  Petitioner requests that her child 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 Family Services, 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.”  Among other things, 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 the appeal must be dismissed for lack of jurisdiction and as untimely. 

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 2019-2020 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 (see Appeal of S.L., 61 Ed Dept Rep, Decision No. 18,022; Appeal of J.M. and R.M., 61 id., Decision No. 18,021; Appeal of a Student with a Disability, 52 id., Decision No. 16,375).  Therefore, the appeal must be dismissed (see 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).

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