06-130

            Petitioners appeal from a decision of an impartial hearing officer which dismissed petitioners' due process complaint notice on the ground that the impartial hearing officer lacked subject matter jurisdiction over their complaint.  The appeal must be dismissed. 

            In the present case, an impartial hearing was not held on the merits of petitioners' complaint.  After a prehearing conference and a subsequent motion to dismiss by respondent, the impartial hearing officer dismissed petitioners' complaint, which sought implementation of a prior unappealed impartial hearing officer decision dated October 12, 2004.

           At the time of the prehearing conference in September 2006, petitioners' daughter was 23 years old and had graduated from the Summit School (Summit), having received a local diploma in June 2003.  Summit is a private school that has been approved by the Commissioner of Education as a school with which districts may contract to instruct students with disabilities. Prior to her graduation, petitioners' daughter had been eligible for special education as a student with an emotional disturbance (Pet. ¶ 22; Answer ¶ 10; see 8 NYCRR 200.1[zz][4]).

          On September 15, 2006, the impartial hearing officer conducted a prehearing conference in this matter.  At the conference, respondent indicated its intent to move to dismiss petitioners' complaint, prior to an impartial hearing.  Respondent asserted that the impartial hearing officer lacked subject matter jurisdiction because petitioners' daughter's rights under the IDEA expired three years prior, and that the statute of limitations had expired.  The impartial hearing officer requested submissions on this issue and both parties submitted briefs (IHO Decision, p. 1).

          By decision dated October 15, 2006, the impartial hearing officer granted respondent's motion to dismiss, concluding that he did not have subject matter jurisdiction.  In his decision, he noted petitioners' argument that their complaint was timely because respondent had failed to comply with the prior impartial hearing officer's decision from 2004. 

         On appeal, petitioners assert that respondent has failed to comply with the prior unappealed impartial hearing officer decision dated October 12, 2004 which was favorable to petitioners.  Specifically, they argue that respondent failed to conduct an accurate psychiatric evaluation, failed to conduct a vocational evaluation, and failed to reconvene a Committee on Special Education (CSE) meeting as ordered by the impartial hearing officer's decision dated October 12, 2004.  Petitioners request that the October 15, 2006 impartial hearing officer decision be annulled and that they be afforded an impartial hearing, or in the alternative that an order be entered directing respondent to comply with the October 12, 2004 impartial hearing officer decision.  Respondent answered the petition, denying petitioners' assertions and asserting the affirmative defenses of a lack of subject matter jurisdiction and the statute of limitations.  Respondent asserts that the October 15, 2006 impartial hearing officer decision should be upheld and petitioners' appeal dismissed.

         I concur with the impartial hearing officer's decision to dismiss petitioners' due process complaint notice, for the reasons set forth herein.

         The enforcement of an impartial hearing officer's order can properly be sought by filing an administrative complaint with the State Education Department's Office of Vocational and Educational Services for Individuals with Disabilities pursuant to applicable federal and state regulations (see 34 C.F.R. §§ 300.151-300.153 [formerly 300.660-300.662]; 8 NYCRR 200.5[l]), or in federal court under 42 U.S.C. § 1983 (see A.T. v. New York State Educ. Dept., 1998 WL 765371 at *7 [E.D.N.Y. August 4, 1998]; Blazejewski v. Bd. of Educ., 560 F. Supp. 701 [W.D.N.Y. 1983]; see Application of the Bd. of Educ., Appeal No. 04-085; Application of the Bd. of Educ., Appeal No. 99-004); see generally A.R. ex. rel. R.V. v. New York City Dept. of Educ., 407 F.3d 65, 78 n.13 [2d Cir. 2005] [impartial hearing officers have no enforcement mechanism of their own]; Application of a Child with a Disability, Appeal No. 04-100; Application of a Child with a Disability, Appeal No. 04-007; Application of a Child Suspected of Having a Disability, Appeal No. 03-071; Application of a Child with a Disability, Appeal No. 01-086; Application of the Bd. of Educ., Appeal No. 99-4).  The impartial hearing officer therefore properly dismissed petitioners' due process complaint notice.

         Petitioners' petition for review clearly seeks implementation of a prior impartial hearing officer decision that was favorable to them and not appealed by respondent.  "At this point in time, [petitioners' daughter] is 23 years old and still has no closure and no compliance with the Decision and Order by [the impartial hearing officer] which was written on October 12, 2004" (Pet. ¶ 33).  In such an instance, the proper course of action is to seek enforcement of the prior decision, which cannot be accomplished through an impartial hearing officer, who lacks an enforcement mechanism (see A.R., 407 F.3d at 78 n.13).  Moreover, because the October 12, 2004 decision was favorable to petitioners, petitioners need not exhaust administrative remedies prior to bringing an action in court (A.R. v. N.Y. City Dept. of Educ., 407 F.3d 65, 76 [2d Cir. 2005]; SJB v. N.Y. City Dept. of Educ., 2004 WL 1586500, at *5 [S.D.N.Y.]).  I therefore concur with the impartial hearing officer's decision to dismiss petitioners' due process complaint notice in this case.

        I also note that petitioners assert that the impartial hearing officer in this case violated multiple state regulations during the course of the proceeding.  For example, petitioners assert that the impartial hearing officer failed to state to the parties whether he could issue his decision within the required timelines, and that he failed to address and clarify issues at the prehearing conference.  I find that petitioners' assertions fail to identify procedures that were inconsistent with due process (see 34 C.F.R. 300.514[b][2][ii]) or that denied petitioners' daughter a free appropriate public education (FAPE) (see 20 U.S.C. § 1415[f][3][E][ii]).

THE APPEAL IS DISMISSED.