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Decision No. 12,888

Application of a STUDENT WITH A DISABILITY, by his parents, from action of the Board of Education of the Scotia-Glenville Central School District regarding transportation.

Decision No. 12,888

(February 24, 1993)

Mid-Hudson Legal Services, Inc., attorneys for petitioners, RosaLee Charpentier, Esq., of counsel

Buchyn, O'Hare, Werner & Gallo, Esqs., attorneys for respondent, Margaret D. Huff, Esq., of counsel

SOBOL, Commissioner.--Petitioners appeal from respondent's denial of their request for transportation to a nonpublic school. The appeal must be dismissed.

Petitioners' son is ten years old and classified learning disabled. For the 1991-92 school year, respondent's Committee on Special Education ("CSE") recommended that the student be placed in a regular education class with special education in reading, mathematics, writing and socialization and with speech and language therapy three times per week. The parents requested an impartial hearing and appealed that decision to the State Review Officer ("SRO") who directed the school district to revise the IEP.

On September 14, 1992, petitioners met with the CSE, along with a representative of the Montessori School of Albany, where petitioners had unilaterally placed their son for the 1991-92 school year. Consistent with the decision of the SRO, respondent's CSE recommended placement in regular education with a full-time aide and consultant teacher services. The CSE recommended the program be provided at the child's home school, the Lincoln Elementary School, which is three blocks from his residence. Petitioners then requested bussing for their son based on his distractibility. The CSE agreed, and the IEP indicates the child would be bussed "from home to home school and back."

At the CSE meeting, the Montessori representative recommended that the child continue at that school. The Montessori School is neither approved for the education of students with disabilities by the State Education Department nor does it provide any special education services as part of its program. On September 24, 1992, petitioners notified respondent they intended to keep their son at the Montessori School and requested that respondent provide the special education services included on their son's IEP. On October 6, 1992, respondent advised petitioners that the IEP services would be provided by the Rensselaer-Columbia-Greene BOCES. However, petitioners' request for transportation was denied on October 28, 1992. This appeal followed.

Petitioners contend that since transportation appears on the child's IEP it is a related service which respondent must provide. Petitioners also assert that respondent is required to provide the transportation pursuant to Education Law '4402(4)(d).

Respondent contends that the appeal should be dismissed as untimely. Further, the board contends that it lacks the authority to provide the transportation, since the voters have not approved transportation beyond the fifteen-mile limit established pursuant to Education Law '3635. Finally, respondent asserts that Education Law '4402(4)(d) is inapplicable because the student does not attend a school that provides a program similar to the program recommended in the IEP, as the statute requires.

An appeal must be commenced within 30 days from the making of a decision or the performance of the act complained of, unless excused by the Commissioner for good cause (8 NYCRR '275.16; Appeal of Bach, 32 Ed Dept Rep 273). Respondent denied transportation on October 28, 1992. This appeal was commenced on December 7, 1992, more than 30 days from that decision, and petitioners offer no excuse for the delay. Therefore, the appeal must be dismissed as untimely.

The appeal must also be dismissed on the merits. Education Law '4402(4)(d) provides that a board of education must provide transportation 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.

That 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 reflects that the child was placed unilaterally by his parents in the Montessori School, which provides no special education whatsoever. Accordingly, the placement cannot be considered a school for purposes of transportation, as contemplated by Education Law '4402(4)(d). Consequently, petitioners' son is not entitled to transportation pursuant to that statute.

Unless required to do so pursuant to Education Law '4402 respondent correctly argues that it is without authority to provide transportation under Education Law '3635. Education Law '3635 authorizes a board of education to provide transportation beyond the fifteen-mile limit only with voter approval (Education Law '3635; Application of a Child with a Handicapping Condition, 30 Ed Dept Rep 424; Appeal of McIntyre, 25 id. 156). The record reflects that the voters in respondent school district have not approved transportation beyond the statutory limit and the transportation is beyond the fifteen-mile limit. Therefore, respondent lacks authority to provide this transportation pursuant to Education Law '3635.

Finally, petitioners claim that the transportation must be provided as a related service. Where a parent disagrees with the identification, evaluation or proposed educational placement of a student with a disability, as a general rule, the parent is required to exhaust available administrative remedies as a condition precedent to the initiation of an appeal to the Commissioner of Education (Education Law '4404(1); 8 NYCRR 200.5(c); Application of a Child with a Handicapping Condition, 30 Ed Dept Rep 6; Matter of a Handicapped Child, 26 id. 540). Petitioners seek relief from the Commissioner without first requesting an impartial hearing. A hearing officer must determine whether the transportation included on the student's IEP was offered as a related service or, as respondent contends, as a convenience to petitioners. Therefore, the petition must be dismissed for failure to exhaust administrative remedies.