Appeal of STUDENTS WITH DISABILITIES, by their parents, from action of the Board of Education of the Geneseo Central School District regarding transportation.

Decision No. 16,490

(June 24, 2013)

The Law Offices of Peter K. Skivington PLLC, attorneys for petitioners, Peter K. Skivington, Esq., of counsel

Wayne A. Vander Byl, Esq., attorney for respondent

KING, JR., Commissioner.--On or about June 3, 2011, petitioners commenced an appeal pursuant to Education Law§310 (“§310 appeal”) challenging the refusal of the Geneseo Central School District (“respondent”) to provide transportation for their children to a nonpublic school. On March 29, 2012, I dismissed petitioners’ appeal (Appeal of Students With Disabilities, 51 Ed Dept Rep, Decision No.16,341 [“Appeal I”]). ¹

Pursuant to Article 78 of the Civil Practice Law and Rules, petitioners appealed this ruling to Supreme Court, Albany County. In a decision dated January 23, 2013, the court remanded the matter to the Commissioner for a determination as to “whether the programs offered by Gates-Chili at Hope Hall are similar to the special education programs recommended for the children by [respondent’s committee on special education] within the meaning of Education Law §4402(4)(d).” By letter dated March 18,2013, petitioners’ attorney informed the State Education Department that petitioners “have decided not to request permission to add anything to the Record on this matter on the Remand....”

The record in Appeal I indicates that, for the 2011­2012 school year, respondent’s Committee on Special Education (“CSE”) recommended, among other things, a special education program consisting of a 12:1+1 special class (i.e., 12 students to one special education teacher and one teaching assistant/teacher aide) three hours daily, resource room, counseling and speech-language therapy for one of petitioners’ children (“Student A”). The record reflects that their other child’s (“Student B”) 2011-2012 individualized education program (“IEP”) included, among other things, recommendations for a special education program consisting of a 12:1+1 special class 5 days a week for English, math, science and social studies, resource room, counseling and speech-language therapy. Petitioners unilaterally placed both children in Hope Hall, a non-public school located in the Gates-Chili Central School District (“Gates-Chili”) and requested special education services to be provided by Gates-Chili.

There is no dispute that, while Hope Hall provides instruction in small class sizes, it does not provide special education services. Any special education services that are provided to Student A and Student B are provided by Gates-Chili, the school district in which Hope Hall is located. Other than petitioners’ descriptions of Hope Hall’s classes and programs, the record contains limited information about Hope Hall such as printouts from its website and student progress reports. In their petition, petitioners make the following assertions about Hope Hall: that the school focuses on teaching children who have special learning needs and is not a special education school, that its classes are limited to 12 students, that it provides instruction at a slow pace to enable students to master the content, that it uses multisensory instruction, that it provides intensive remediation of academic skill deficits, that it uses a variety of teaching styles to correlate with students’ learning styles, and that it teaches social and organizational skills as well as the “New York State curriculum.”

As noted above, the court directed that I determine “whether the programs offered by Gates-Chili at Hope Hall are similar to the special education programs recommended for the children by [respondent’s committee on special education] within the meaning of Education Law §4402(4)(d).”

With respect to Student A, the record indicates that both the 2011-2012 IEP developed by respondent’s CSE and the 2010-2011 individualized education service program (“IESP”) developed by Gates-Chili ² recommended that she receive individual speech therapy twice a week for 30­minute sessions. However, the record indicates that respondent’s IEP recommended resource room services five times a week for 44-minute sessions, while the IESP recommended no resource room services. In addition, the IEP recommended that she receive individual counseling services once a week for 30 minutes, while the IESP recommended group counseling once a week for 30 minutes. The IEP also recommended that Student A attend a 12:1+1 special class for three hours daily.

While the record indicates that Hope Hall provides Student A with “a small class setting of 12 students,” remedial/alternative reading and math programs, modified spelling, math and social studies programs and an adapted science program, there is no evidence that Student A would be provided the same staff-to-student ratio in all academic areas, nor would she receive the specialized supplementary instruction in an individual or small group setting for a portion of the school day such as would have been provided through the resource room services recommended by Geneseo in her 2011-2012 IEP. Further, she would not receive from Hope Hall the recommended related services of counseling and speech and language therapy to address her speech/language and social-emotional needs. Moreover, the record contains no evidence of the specific modifications or adaptations provided in Student A’s classes; that the content, methodology or delivery of instruction has been or would be adapted to address the unique needs that result from her disability; or that Hope Hall provides Student A with any of the specific program modifications, accommodations, supplementary aids and services or testing accommodations recommended in her 2011-2012 IEP. As described above, the record contains no evidence to indicate that Hope Hall itself provides special education services similar to those recommended in Student A’s IEP.

With respect to Student B, both the 2011-2012 IEP and the 2010-2011 IESP developed by Gates-Chili ³  recommended that she receive (1) counseling services once a week in a group and once a week individually for 30-minute sessions, and (2) individual speech therapy twice a week for 30­minute sessions. However, the record indicates that respondent’s IEP recommended resource room services five times a week for 44-minute sessions, while the IESP recommended resource room services only three times a week for 40-minute sessions. The IEP also recommended that Student B attend a 12:1+1 special class five days per week for English, math, science and social studies.

While the record indicates that Hope Hall provides Student B with “a small class setting of 12 students,” there is no evidence that she receives specially designed instruction (i.e., adapting, as appropriate to the needs of the student, the content, methodology or delivery of instruction to address the unique needs that result from the student’s disability) from a special education teacher and that a teaching assistant/teacher aide would be assigned to Student B’s classes as recommended in her IEP. Indeed, petitioners assert that Student B receives “individualized instruction in a general education class” at Hope Hall. While it appears that Hope Hall generally provides some remedial instruction and changes to instructional methodologies to address struggling learners, there is no documentation that Student B would or has received any such services, nor would Student B receive the supplemental instructional support she needs such as would have been provided through resource room services recommended in her IEP. Further, she would not receive from Hope Hall the recommended related services of counseling and speech and language therapy to address her language and social-emotional needs. Moreover, other than indicating that Hope Hall provided Student B with a separate room in which to regain control after an emotional outburst, the record contains no evidence that Hope Hall provides Student B with any program modifications, accommodations, supplementary aids and services or testing accommodations as recommended in her 2011-2012 IEP.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48id. 348, Decision No. 15,882). Education Law §4402(4)(d)provides that a board of education must provide transportation up to a distance of 50 miles to and from a nonpublic school which a student with a disability attends if “such child attends such school for the purpose of receiving services or programs similar to special educational programs recommended for such child by the local committee on special education.” As described above, there are several significant differences between the IEP and IESP developed for each student that precludes a finding that the services provided by Gates-Chili are similar to those recommended in the students’ IEPs. Consequently, petitioners have failed to carry their burden on this claim.

Moreover, as described above, the record contains no evidence that Hope Hall provides similar services to those recommended in the students’ IEPs. The statute requires that a board provide transportation when a parent makes a unilateral placement to a school which offers a program similar to the program recommended in the child’s IEP. However, the record in this case reflects that Hope Hall provides no special education services; rather, such services are provided to the students by Gates-Chili. Based on the record before me, I cannot conclude that petitioners have carried their burden of establishing that the services provided to the students by Hope Hall are similar to those recommended by respondent’s CSE or by the CSE of Gates-Chili. Accordingly, the placement cannot be considered a school which offers a program similar to that recommended in the students’ IEPs for purposes of transportation as contemplated by Education Law §4402(4)(d)and petitioners’ children are not entitled to transportation pursuant to that statute.

While the issue of the eligibility of petitioners’ children for transportation pursuant to Education Law §4402(4)(d) in the 2013-2014 school year is not before me in this appeal, I note that this decision should not be construed to foreclose petitioners from requesting such transportation in the future based on changes in the special education services provided by Gates-Chili in the children’s current IESPs.

THE APPEAL IS DISMISSED.

END OF FILE 

 

^[1]  The facts and procedural history underlying this matter are set forth in the original decision.

 

^[2]  Petitioners assert that they anticipate that Student A would continue to receive the services recommended on the 2010-2011 IESP during the 2011-2012 school year. Petitioners have not submitted any evidence relating to the 2012-2013 school year.  

 

^[3]   Petitioners assert that they anticipate that Student B would continue to receive the services recommended on the 2010-2011 IESP during the2011-2012 school year. Petitioners have not submitted any evidence relating to the 2012-2013 school year.