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Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of Buffalo


Western New York Law Center, attorney for petitioner, Linda R. Hassberg, Esq., of counsel

Hon. Michael B. Risman, Corporation Counsel, attorney for respondent, Denise M. Malican, Esq., of counsel


          Petitioners appeal from an impartial hearing officer’s decision directing respondent’s Committee on Special Education (CSE) to find a suitable educational placement for their son. They contend that it would be futile for the CSE to reconvene for that purpose because the CSE has been searching for a residential placement for their son since November 2001. Petitioners seek an order directing the Commissioner of Education to develop an appropriate residential educational placement for their son in Western New York with all possible speed, and to provide an immediate interim placement for the student. The appeal must be dismissed.

        At the time of the hearing in this proceeding, petitioners’ son was 14 years old and had been classified as multiply disabled. He had attended the Heritage School, a voluntary service provider agency day placement, while residing in a group home under the auspices of the Office of Mental Retardation and Developmental Disabilities. On March 1, 2001, petitioners’ son was admitted to the Erie County Medical Center (ECMC), and he has reportedly remained there. Respondent has provided him with two hours of instruction per day while in that facility (Exhibit 1).

        After an unsuccessful attempt to return the student to the Heritage School in June 2001, that agency referred him to respondent’s CSE. On July 18, 2001, the CSE decided to look for another local day placement, while continuing to provide home instruction to the student at the ECMC. However, the CSE was unsuccessful in finding a day placement for the student.

        By letter dated October 18, 2001, petitioners requested an impartial hearing to obtain a decision requiring respondent to immediately place their son in an appropriate school (Exhibit 2). The parties then attempted to settle the matter. They were able to partially resolve the matter, but met with the hearing officer on January 16, 2002. They submitted a brief stipulation of facts (Exhibit 1). Petitioners indicated that they were seeking an immediate appropriate placement for their son.

        In his decision dated January 29, 2002, the hearing officer noted that there did not appear to be any significant factual dispute between the parties and that the record before him was silent with respect to any potential placement for petitioners’ son. He further noted that there was no allegation by petitioners of bad faith on the part of respondent in attempting to find a placement for the student. He therefore remanded the matter to the CSE to find a placement for the student.

        Petitioners assert that respondent cannot provide a suitable educational placement for their son, and they contend that it is therefore the New York State Education Department’s responsibility to find a suitable placement for the student. I note that the record does not reveal whether the parties have even contacted the State Education Department’s Office of Vocational and Educational Services for Individuals with Disabilities (VESID) for assistance in locating a permanent placement or obtaining an emergency interim placement. In any event, I do not have jurisdiction to review the actions of any officer or employee of the New York State Education Department (8 NYCRR 279.1[c][2]), and would on this record have no basis for ordering the relief that petitioners seek.

        I share petitioners’ concern for their son’s education, and I urge the parties to contact VESID to obtain whatever technical assistance it can provide. A copy of this decision will be sent to VESID. In light of this disposition, I do not address the issues that respondent has raised.


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Parent Appeal