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Decision No. 13,969

Appeal of JANE G., on behalf of her son, ROBERT G., from action of the Board of Education of the Whitehall Central School District regarding transportation.

Decision No. 13,969

(July 3, 1998)

John J. Layden, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Whitehall Central School District ("respondent") denying her request for transportation for her son, Robert, from their home to the nonpublic school which he attends. The appeal must be dismissed.

Petitioner is a resident of respondent's district. During the 1997-98 school year, her son Robert attended kindergarten at St. Mary's School in Ticonderoga ("St. Mary's"), a nonpublic school located over 21 miles from petitioner's residence. On April 9, 1997, respondent denied petitioner's request to provide transportation for Robert from their home to St. Mary's on the grounds that petitioner resides more than 15 miles from the school. Petitioner had Robert examined by physicians in April and June of 1997 and each diagnosed him with Attention Deficit Hyperactivity Disorder ("ADHD"). One physician recommended placement in a small classroom setting and requested that respondent provide Robert with transportation to St. Mary's. Thereafter, respondent's school psychologist evaluated Robert and a meeting was held on August 15, 1997 to review the results. The matter was then scheduled for consideration at the next meeting of the district's Committee on Special Education ("CSE"). In the interim, at its August 18, 1997 board meeting, respondent again refused petitioner's transportation request. By letter dated August 19, 1997, petitioner withdrew Robert from respondent's kindergarten roster. I denied petitioner's request for interim relief on October 20, 1997.

Petitioner contends that respondent should be required to transport Robert to St. Mary's because the two doctors who examined him recommended that he be placed in a small classroom setting. She requests that I order respondent to provide transportation to St. Mary's.

Respondent contends that the appeal should be dismissed as untimely and for failure to exhaust administrative remedies. Respondent further contends that it is not required to provide transportation to students residing more than 15 miles from their schools and that petitioner has failed to establish that the requested transportation or placement of Robert at St. Mary's School is necessary.

The appeal must be dismissed as untimely. An appeal to the Commissioner of Education under "310 of the Education Law must be brought within 30 days of the action complained of unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Prior Commissioner's decisions have held that a request for reconsideration does not extend the time in which to commence an appeal (Appeal of Ytuarte, 36 Ed Dept Rep 238; Appeal of Goodman, 35 id. 93; Appeal of Regan, 34 id. 72). According to the superintendent's affidavit, petitioner's transportation request was denied on April 9, 1997, more than 30 days prior to the September 15, 1997 commencement of this appeal. Petitioner's August 18, 1997 appeal to respondent was in the nature of a request for reconsideration and does not extend the time for filing this appeal. Therefore, the appeal must be dismissed as untimely.

To the extent petitioner seeks to have Robert qualify for transportation under Education Law "4402(4)(d), he has not been identified as a child with a handicapping condition. In the first instance, petitioner must give the district's CSE the opportunity to determine Robert's eligibility for services. Thereafter, if a parent is dissatisfied with the decision of the CSE, he or she may appeal to an impartial hearing officer ("IHO") and may appeal the IHO's decision to the State Review Officer (Education Law "4404; 8 NYCRR "200.5). Here, petitioner seeks relief from the Commissioner without first completing this process. Therefore, the petition must be dismissed for failure to exhaust administrative remedies.

Finally, to the extent petitioner seeks transportation to St. Mary's pursuant to Education Law "3635, respondent need not provide such service for the reasons set forth in Appeal of Raymond, Decision No. 13953, dated June 10, 1998, 37 Ed Dept Rep ____.