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Decision No. 16,975

Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Bedford Central School District regarding transportation.

Decision No. 16,975

(September 28, 2016)

Keane & Beane, P.C., attorneys for respondent, Suzanne E. Volpe, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Bedford Central School District (“respondent”) denying his son (the “student”) transportation to a nonpublic school.  The appeal must be dismissed. 

Petitioner resides within respondent’s school district and, at all times relevant to this appeal, his son attended a nonpublic school.[1]  On or about March 3, 2014, petitioner submitted a transportation request for the 2014-2015 school year on behalf of the student for transportation to the Pear Tree Point school (“Pear Tree”), a nonpublic school located in Darien, Connecticut.  On or about September 7, 2014, the student’s mother contacted respondent’s transportation supervisor and requested that respondent “hold” their transportation request.  On September 18, 2014, petitioner submitted a second transportation request on behalf of the student for transportation to a different school, the Beacon school, located in Stamford, Connecticut.  On September 19, 2014, respondent denied petitioner’s transportation request.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 16, 2014.

Petitioner admits that he submitted his application for transportation to the Beacon school for the 2014-2015 school year after the April 1 deadline, but contends that his delay should be excused because the student was rejected by Pear Tree on September 10, 2014 due to “poor test results received on August 28”.  Petitioner further contends that the district would not incur additional costs to transport the student to the Beacon school because it had previously agreed to transport the student to Pear Tree.  Petitioner requests that I overturn respondent’s decision to deny the student transportation and order that he be provided bus transportation for the 2014-2015 school year.

Respondent maintains that petitioner failed to submit the Beacon school transportation request prior to the April 1 statutory deadline and failed to provide a reasonable explanation for the delay.  Respondent further asserts that petitioner’s request was properly denied as the district would incur additional costs if petitioner’s late transportation request was granted.

I will first address several procedural matters.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Petitioner also submits a document captioned “Verified Reply to Defective Memorandum of Law.” Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  Therefore, upon review of its contents, I decline to accept this document.

The appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Petitioner’s request for interim relief was denied and the 2014-2015 school year has ended, rendering the appeal moot. 

Even if the appeal were not dismissed as moot, it would be dismissed on the merits. 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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Mendiolaza, 48 id. 346; Decision No. 15,881).  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 a Student with a Disability, 48 Ed Dept Rep 207, Decision No. 15,837).  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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of a Student with a Disability, 48 id. 207, Decision No. 15,837).  The board’s determination will not be set aside unless it constitutes an abuse of discretion (Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Mendiolaza, 48 id. 346; Decision No. 15,881).

In this case, although petitioner initially timely requested transportation to the Pear Tree school, he subsequently withdrew his request and submitted a new transportation request to the Beacon school after the deadline for requesting transportation had expired.  The Commissioner has consistently held that a change in designation of a nonpublic school, different than the nonpublic school originally specified, after the April 1 deadline constitutes a separate request (see Appeal of Galvani, 34 Ed Dept Rep 370, Decision No. 13,346; Appeal of McNair, 33 id. 418, Decision No. 13,098).  Since petitioner’s second request for transportation to the Beacon school was not submitted by the April 1 deadline it must be treated as a late request.  Neither a belated decision to enroll a student in a private school nor a belated notice of admission to a nonpublic school constitutes a reasonable explanation for the late submission of a transportation request (Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Flores, 47 id. 484, Decision No. 15,761).  Therefore, based upon this record, I do not find that petitioner has provided a reasonable explanation for his untimely transportation request. 

Even absent a reasonable explanation for the delay, a late transportation request must be granted if the requested transportation can be provided under existing transportation arrangements at no additional cost to the district (Appeal of Meyerson, 46 Ed Dept Rep 421, Decision No. 15,552; Appeal of Capeling, 46 id. 400, Decision No. 15,545; Appeal of Ghaffar, 46 id. 332, Decision No. 15,524).  However, where a late transportation request would result in additional cost, such transportation request may be denied.  The Commissioner has consistently sustained denials of untimely applications for transportation where the transportation requested would impose additional costs upon the school district (Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Mendiolaza, 48 id. 346, Decision No. 15,881).

According to the record, respondent has demonstrated that it would incur at least $71,700.00 in transportation costs to transport the student to the Beacon school if petitioner’s request was approved.  Therefore, respondent did not abuse its discretion in denying petitioner’s late transportation request.

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

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] It appears from the record that petitioner has enrolled the student in the nonpublic school and he is not placed there pursuant to an individualized education program.