Decision No. 14,099
Appeal of a STUDENT WITH A DISABILITY, by his parents, from action of the Board of Education of the Kings Park Central School District regarding provision of transportation services pending an impartial hearing.
Decision No. 14,099
(March 29, 1999)
Michael E. Deffet, Esq., attorney for petitioners
Ingerman Smith, L.L.P., attorneys for respondent, Lawrence W. Reich, Esq., of counsel
MILLS, Commissioner.--Petitioners appeal from action by the Board of Education of the Kings Park Central School District ("respondent") to change transportation services provided pursuant to their son's individualized education program (IEP) and seek an order that respondent resume door-to-door transportation pending an impartial hearing. The appeal must be sustained.
Petitioners' son is thirteen years old and resides with his parents within the Kings Park Central School District at 85 Indian Head Road. He is classified as a student with an emotional disability and attends a "BOCES Option 3" program located at the Brennan High School. It appears that four individualized education programs (IEP's) were developed for this student during the 1996-1997 and 1997-1998 school years. These IEP's indicate variously that the student would be provided with IEP transportation service, "door to door" (IEP prepared 3/1/97 for 1997-1998), "per district policy" (IEP prepared 3/7/97 for 1996-1997), and "special" (IEP's prepared 5/6/97 for 5/97 – 6/97 and 1997-1998). Petitioners' son was provided door-to-door transportation services from approximately April 18, 1997 through May 16, 1997 while he attended a thirty-day treatment program at Sagamore Hospital. From May 19, 1997 through September 9, 1997, the student was picked up directly in front of his house and transported by school bus to Brennan High School, where he attended a self-contained program for emotionally disabled students operated by the Western Suffolk Board of Cooperative Educational Services (BOCES).
Door-to-door transportation services were halted on September 9, 1997, on which date respondent advised petitioners by telephone, one hour prior to the scheduled home drop off, that the school bus would instead be dropping off their son on a side street with limited traffic flow, seventy-five to one hundred feet off Indian Head Road. Respondent was informed by letter dated September 9, 1997 from the Eastern Suffolk BOCES Transportation Director that Indian Head Road "is not an ideal location for a school bus to stop due to the curve in the road and the high speed of cars traveling north and south." By letter dated September 19, 1997, the Chief Engineer for Suffolk County informed respondent that the installation of school bus stops on county roads "should be discouraged" because they are "generally heavily trafficked, high speed roads" and "the gathering of children and the unexpected stopping of school buses along these roads are potential sources of accidents and associated injury." The September 19th letter identified the Indian Head Road as such a County Road and advised that, "whenever possible we encourage school districts to establish school bus stops on adjoining intersecting streets of major county roadways where there is less vehicular activity." By letter dated October 1, 1997, the president of the ACME Bus Corporation agreed that relocating the bus stop from petitioners' residence at 85 Indian Head Road to Peary Lane would be "a safer location."
By letter dated September 30, 1997, petitioners, through their attorney, requested an impartial hearing to challenge the change in transportation services provided pursuant to their son's IEP, made without a meeting of respondent's committee on special education (CSE) and "with only an hour's notice" to them.
Petitioners commenced this appeal on October 7, 1997 seeking resumption of door-to-door transportation, a determination that respondent violated petitioners' rights when it altered transportation services provided for in the IEP without benefit of a CSE meeting and without notice to petitioners; a determination that respondent violated petitioners' rights when, after discovering that petitioners disagreed with the proposed change in services, it failed to abide by the "pendency" IEP which requires the student be transported door to door; and compensation for costs associated with the student's transportation after September 9, 1997 through the date on which the matter is resolved. Petitioners contend that the proposed bus stop is dangerous to their son, particularly because he suffered an emotional breakdown and attempted to commit suicide at that exact location on or about February 12, 1997.
Respondent denies that the chair of its CSE had any knowledge that the proposed bus stop is inappropriate or that the student attempted to commit suicide at the site and contends that its change of transportation services is consistent with the requirement of "transportation-special" in the 1997-1998 IEP prepared May 6, 1997; that the student's 1997-1998 IEP prepared March 1, 1997, specifying "door-to-door" was "generated by Western Suffolk BOCES," not respondent, using computer software that "always indicates door-to-door transportation, without regard to the actual recommendation of the component district CSE"; and that petitioners' request for an impartial hearing is premature because a CSE meeting was scheduled for October 30, 1997 to consider the transportation issue. On October 28, 1997, I granted a stay directing respondent to resume door-to-door transportation for petitioners' son, pending an ultimate determination of this appeal.
The Individuals with Disabilities Education Act (IDEA), 20 USC "1415(j) and Education Law "4404(4) require that, unless the parties agree otherwise, a child must be maintained in the "then current educational placement" during the pendency of any proceeding to resolve a dispute regarding provision of IEP services. The purpose of this "stay put" or "status quo" provision is to preserve continuity of education for the child while the parties pursue appeals to resolve their differences (Appeal of Schlesinger, et al., 36 Ed Dept Rep 435).
The determination of "stay put" or pendency must be made in the first instance by the impartial hearing officer, pursuant to 8 NYCRR 279.8(b). However, because this appeal was commenced prior to the January 1, 1998 effective date of that regulation, I will exercise jurisdiction over this issue and determine the "stay put" or pendency services due this student. At the time petitioners requested an impartial hearing on September 30, 1997, their son was attending the BOCES program pursuant to two IEP's requiring "door to door" and "special" transportation, respectively. This language is more prescriptive than the "per district policy" used in the IEP for the 1996-97 school year when door-to-door transportation was actually provided. Based upon respondent's provision of door-to-door transportation for the student during the previous year, which continued through September 9, 1997, and the language of both IEP's prepared for the 1997-98 school year, I find that the record supports petitioners' contention that they agreed to the 1997-98 IEP with an understanding that the terms "door-to-door" and "special" transportation, meant picking up and dropping off their son directly in front of their residence at 85 Indian Head Road. Consequently, I find that door-to-door transportation is a component of the student's "current educational placement" for purposes of the "stay put" requirement of 20 USC 1415(j) and Education Law "4404 and must continue until the due process hearing requested on September 30, 1997 and subsequent appeals are exhausted.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the Board of Education of the Kings Park Central School District provide door-to-door transportation for petitioners' son to and from petitioners' residence at 85 Indian Head Road and his educational placement for so long as the impartial hearing requested September 30, 1997 and any appeal from the decision rendered by the hearing officer presiding in that proceeding are pending.
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