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Decision No. 13,209

Application of a STUDENT WITH A DISABILITY, by her parents, from action of the Board of Education of the Huntington Union Free School District regarding transportation.

Decision No. 13,209

(June 22, 1994)


Stein & Schonfeld, Esqs., attorneys for petitioners, Nancy A. Sorrentino, Esq., of counsel

Ehrlich, Frazer & Feldman, Esqs., attorneys for respondent, Florence T. Frazer and James H. Pyun, Esqs., of counsel

SOBOL, Commissioner.--Petitioners appeal respondent's refusal to transport their daughter to a nonpublic school. The application must be denied.

Petitioners' daughter is nine years old and classified as learning disabled. In early February 1993, respondent's director of pupil personnel services received a request from the student's classroom and special education teachers at the Huntington Elementary School that the Committee on Special Education ("CSE") review the student's needs since they believed that she required additional educational services.

On February 11, 1993, petitioner's father attended the CSE meeting as a parent member. The CSE chairperson, aware that there was a perceived need for additional services for petitioner's daughter, asked petitioner if he would like his daughter's case to be placed on the schedule for CSE review on that date since the required school personnel familiar with the student's case were already present. Petitioner agreed and the CSE reviewed the case on that date and determined to increase the resource room services from one period to two periods a day. That meeting was also treated as the student's annual review and the CSE determined that increased resource room service would continue for the 1993-94 school year.

For the 1993-94 school year, petitioners placed their daughter in a nonpublic school. Once respondent's director of special education became aware that the student would be enrolled in a nonpublic school, she contacted the school to determine what type of special education programs were provided. As a result of that inquiry, respondent determined that it would provide the required resource room services on site and hired a qualified special education teacher.

On November 8, 1993, petitioners received notification that the nonpublic school was being evicted from its current site and had relocated to a temporary site in Port Jefferson. On November 9, 1993, petitioners requested that their daughter's transportation continue to the new location. Respondent denied petitioners' request based on the fact that the new location of the nonpublic school was more than 15 miles from petitioners' residence. Petitioners informed respondent that the school's original location had exceeded the fifteen mile limitation. Petitioners appealed the determination to the board of education and were informed that the board had denied petitioners' request on January 25, 1993. This appeal ensued. Petitioners' request for interim relief pending a determination on the merits of their appeal was denied on March 11, 1994.

Petitioners allege that respondent is violating the Individuals with Disabilities Education Act (IDEA) by failing to provide transportation to the nonpublic school. Petitioners also assert that respondent is required to provide transportation pursuant to Education Law '4402(4)(d). Petitioners seek an order directing respondent to provide transportation to the nonpublic school.

Respondent raises a number of affirmative defenses, including the fact that the petition is untimely, petitioners have failed to exhaust their administrative remedies, transportation is not a special education related service and respondent has no authority to provide 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 by the student's Individualized Education Program (IEP), as the statute requires.

Before reaching the merits, I will address the procedural issue. 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 petitioners' request for transportation on January 25, 1994. This appeal was commenced on February 28, 1994, 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) states 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 (Application of a Student with a Disability, 32 Ed Dept Rep 467; Matter of a Handicapped Child, 24 id. 41). However, the record reflects that the child was placed unilaterally in the nonpublic school by her parents, which provides no special education whatsoever. The special education services provided on site at the nonpublic school are arranged and paid for by respondent. Accordingly, the placement cannot be considered a school for purposes of transportation, as contemplated by Education Law '4402(4)(d). Furthermore, the record reflects that petitioners' daughter's IEP indicates that transportation is to be provided according to district guidelines and there is no provision for transportation services to be provided as part of the special education program, as petitioners contend. Therefore, petitioners' daughter is not entitled to transportation under that statute.

Unless required by Education Law '4402 to provide transportation to petitioners' daughter, respondent correctly argues that it is without authority to provide transportation under Education Law '3635. That statute 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). Respondent notes district voters have not approved additional transportation. In fact, respondent is on an austerity budget for the 1993-94 school year and is unable to provide non-mandated transportation. The record reflects that the current location of the nonpublic school is well beyond the statutory limit. Therefore, respondent lacks authority to provide transportation pursuant to Education Law '3635.

Petitioners argue that because respondent previously provided transportation for their daughter to the nonpublic school's original location outside of the statutory transportation limit, it is obligated to continue to provide similar transportation to the school's new location. The fact that respondent mistakenly transported petitioners' daughter for approximately two months does not preclude respondent from declining to continue to provide such transportation in the future (Appeal of Robert G., 32 Ed Dept Rep 60; Appeal of McMillan, 31 id. 343; Matter of Nevin, 25 id. 86). Respondent may not make an exception to the eligibility requirements of Education Law '3635 because it erroneously provided transportation to an ineligible pupil in the past (Appeal of Eberhardt, 25 Ed Dept Rep 263; Appeal of McIntyre, supra; Matter of Lembo, et al., 18 id. 505).

Petitioners claim that the nonpublic school was temporarily relocated due to an emergency situation and that they have a right to rely on the fact that transportation provided under Education Law '3635 will continue for the entire school year. Petitioners cite my decision in Appeal of Jaeger, 22 Ed Dept Rep 24, where a fire forced the temporary relocation of a school. In that case, I held that transportation should be continued during the unexpected and unavoidable relocation of classes during a school year for reasons beyond the control of school authorities. Notwithstanding the fact that petitioners' daughter is otherwise ineligible for transportation under Education Law '3635, the temporary relocation of the nonpublic school by eviction proceedings was not an unexpected, unavoidable relocation beyond the control of school authorities similar to Appeal of Jaeger, supra. The record in this case indicates that the school's eviction and subsequent relocation resulted from a longstanding dispute with its landlord. Under these circumstances, respondent is not obliged to provide the transportation services requested by petitioner beyond the mileage limitation set out in Education Law '3635.

Finally, petitioners claim that 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 before seeking review at the State level (Education Law '4404(2); 8 NYCRR 200.5(c); Appeal of Student with a Disability, 33 EDR 46; Application of Student with a Disability, supra). Parties dissatisfied with the decision of an impartial hearing officer may appeal such decision to the State Review Officer. Here, 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. Therefore, the petition must also be dismissed for failure to exhaust administrative remedies.