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Decision No. 15,837

Appeal of a STUDENT WITH A DISABILITY, by his parents, from action of the Board of Education of the Herricks Union Free School District regarding transportation.

Decision No. 15,837

(October 7, 2008)

Jeffrey E. Pam, Esq., attorney for petitioners

Jaspan Schlesinger Hoffman, LLP, attorneys for respondent, Lawrence Tenenbaum, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the decision of the Board of Education of the Herricks Union Free School District (“respondent”) denying their son transportation to and from a nonpublic school.  The appeal must be sustained.

During the 2007-2008 school year, petitioners’ son, a student with a disability, attended the third grade in respondent’s district.  In accordance with his Individualized Education Program (“IEP”), petitioners’ son was initially placed in a special class.  Petitioners requested that respondent’s Committee on Special Education (“CSE”) convene a meeting to discuss their son’s placement.  A CSE meeting was held on November 9, 2007, and it was agreed that the student’s placement would be changed to a third grade general education class with support services.  Petitioners believed their son was doing well in this general education setting and expected his placement for the 2008-2009 school year to remain the same.

On May 6, 2008, the CSE and petitioners met to prepare the student’s IEP for the 2008-2009 school year.  At this meeting, the CSE rejected the student’s general education placement with support services, and recommended a collaborative instruction program.  Petitioners assert that they did not agree to this placement, but the IEP incorrectly states that they did.  Petitioners and respondent agree that petitioners gave notice to the CSE at the May 6, 2008 meeting that they might be considering a private placement for their son.

On May 15, 2008, petitioners received verbal approval from a private school that their son would be accepted for the 2008-2009 school year.  Petitioners submitted applications for transportation services on May 15 and 16, 2008, acknowledging that they had missed the April 1, 2008 deadline.  On May 22, 2008, respondent denied these requests, and petitioners were notified by letter dated May 28, 2008.  This appeal ensued.

Petitioners admit that they submitted a late request for transportation, but contend that because they were unaware that the CSE wanted to change their son’s educational placement until the May 6, 2008 CSE meeting, they have a reasonable explanation for the delay.  Petitioners also argue that they are willing to pay the district’s transportation expenses to transport their son.  Finally, petitioners contend that transportation is a related service listed in their son’s IEP.

Respondent argues that its decision to deny petitioners’ late transportation request was appropriate.  It asserts that a late decision to enroll a student in a nonpublic school is not a reasonable explanation for a late transportation request.  Additionally, respondent argues that the district would incur additional costs were the transportation request to be granted, as the district pays for transportation to the nonpublic school on a per-pupil basis.

Education Law §3635(2) requires that an application for transportation to a nonpublic school must be submitted no later than the first day of April preceding the school year for which transportation is requested or, if the parents or guardian of a child did not reside in the district on April 1, within 30 days after establishing residency in the district.  The purpose of this deadline is to enable school districts to budget funds and make necessary arrangements to provide transportation reasonably and economically (Appeal of S.M., 44 Ed Dept Rep 391, Decision No. 15,208; Appeal of J.D., 42 id. 373; Decision No. 14,884; Appeal of Cusumano, 42 id. 309, Decision No. 14,864).  However, a district may not reject a late request for transportation if there is a reasonable explanation for the delay (Education Law §3635[2]; Appeal of S.M., 44 Ed Dept Rep 391, Decision No. 15,208; Appeal of Davila, 41 id. 419, Decision No. 14,732).  In the first instance, it is the responsibility of the board of education to determine whether a parent has offered a reasonable explanation for submitting a late request (Appeal of Wheelwright, 41 Ed Dept Rep 454, Decision No. 14,744).  The board’s determination will not be set aside unless it constitutes an abuse of discretion (Appeal of Gal, 42 Ed Dept Rep 170, Decision No. 14,809; Appeal of Wheelwright, 41 id. 454, Decision No. 14,744.)

In this case, however, I find that petitioners did not simply make a belated decision to place their son in a private school.  Rather, petitioners decided to enroll their son in a nonpublic school only after respondent initiated a change in the student’s placement without forewarning to petitioners and after the transportation deadline.  Additionally, petitioners acted promptly after the May 6, 2008 CSE meeting, requesting transportation by May 15, 2008.  Accordingly, under these circumstances, I conclude that petitioners had a reasonable excuse for their delay (seeBd. of Educ., Hauppauge Union Free School Dist. v. Ambach, 93 AD2d 210; Appeal of a Student With a Disability and His Sister, 42 Ed Dept Rep 199, Decision No. 14,821; Appeal of Lamba, 32 id. 473, Decision No. 12,890; Appeal of d’Amico, 24 id. 129, Decision No. 11,342).  Therefore, I find that respondent’s denial of transportation was unreasonable.

In light of this disposition, I need not consider the parties’ remaining contentions.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent provide petitioners’ son with transportation to the nonpublic school he attends for the remainder of the 2008-2009 school year.

END OF FILE