The State Education Department
State Review Officer

No. 02-104

 

 

 

 

Application for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Valley Central School District

 

Appearances:
Alex Smith, Esq, attorney for petitioners

Donoghue, Thomas, Auslander and Drohan, Esqs., attorneys for respondent, James P. Drohan, Esq., of counsel

 

DECISION

        Petitioners appeal from a hearing officer’s decision rendered pursuant to the provisions of 34 C.F.R. § 104.36 implementing § 504 0f the Rehabilitation Act of 1973 (29 U.S.C. § 794). The appeal must be dismissed for lack of jurisdiction.

        Petitioners’ daughter, who was 17 years old at the time of the hearing, has been diagnosed with myelitis, and has been identified as a handicapped person, as that term is defined by 34 C.F.R. § 104.3(j). Section 504 of the Rehabilitation Act of 1973 and its implementing regulations require that a recipient of federal funds operating a public elementary or secondary education program (recipient) provide a free appropriate public education (FAPE) to each qualified handicapped person who is in the recipient’s jurisdiction. Pursuant to 34 C.F.R. § 104.36, each recipient must establish and implement a system of procedural safeguards with respect to actions taken regarding the identification, evaluation, and placement of persons who, because of handicap, need or are believed to need special instruction or related services. Those safeguards must include the opportunity for an impartial hearing and a review procedure.

        Respondent reportedly provided home instruction to petitioners’ daughter during the 2000-01 and 2001-02 school years. On or about October 16, 2001, respondent prepared a student accommodation plan for petitioners’ daughter (Exhibit P-50), which was revised on November 19, 2001 (Exhibit P-57). By letter dated February 4, 2002, petitioners’ then attorney requested "a Section 504 Due Process Hearing", alleging that violations of the student’s rights under § 504 had occurred (Exhibit P-64). Petitioners’ attorney reiterated her hearing request on March 22, 2002 (Exhibit P-69).

        Respondent appointed a hearing officer on March 15, 2002. The hearing began on April 10, 2002. In her opening statement, petitioners’ then attorney indicated that the proceeding involved alleged violations of the student’s and parents’ rights under § 504. The hearing continued for five more days, ending on July 6, 2002. In a post-hearing memorandum of law dated September 30, 2002, petitioners’ current attorney asserted that the student was eligible for classification as a student with a disability under Article 89 of the New York State Education Law and the Individuals with Disabilities Education Act (IDEA). In his decision which was rendered on October 10, 2002, the hearing officer dismissed petitioners’ claim that alleged procedural or substantive violations of § 504 had occurred and that the student had not received appropriate accommodations pursuant to the provisions of that statute.

        In their petition in this appeal, petitioners assert that respondent violated its obligations to their daughter under the federal disabilities statutes, as set forth in their post-hearing memorandum of law to the hearing officer. Respondent contends that the petition must be dismissed because I have no jurisdiction to review a hearing officer’s decision rendered pursuant to the provisions of § 504. I agree with respondent.

        As noted above, a school district must provide an opportunity for a hearing to resolve disagreements arising under § 504. It may satisfy its obligation to do so by complying with the IDEA’s procedural safeguards, such as an impartial hearing under the IDEA. However, the New York State Education Law makes no provision for state-level administrative review of hearing officer decisions in § 504 hearings. Petitioners’ remedy is to seek review of the hearing officer’s decision by the courts (Application of a Child with a Disability, Appeal No. 99-10; Application of a Child with a Disability, Appeal No. 97-80; Application of a Child with a Disability, Appeal No. 96-37). Although petitioners’ current counsel attempted to raise the issue of the applicability of the IDEA to petitioners’ claims in his post-hearing memorandum of law, I find that the issue was not timely raised at the hearing, and it is beyond the scope of my review (Application of a Child with a Disability, Appeal No. 01-032; Application of a Child with a Disability, Appeal No. 99-60).

 

        THE APPEAL IS DISMISSED.

 

 

 

Dated:

Albany, New York

 

__________________________

 

December 19, 2002

 

FRANK MUÑOZ