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Decision No. 14,050

Appeal of HEBREW INSTITUTE FOR THE DEAF and EXCEPTIONAL CHILDREN, from action of Thomas B. Neveldine and Madeline F. Alpert regarding the establishment of a tuition rate by the New York State Education Department for a preschool program for children with disabilities.

Decision No. 14,050

(December 21, 1998)

Leon Brickman, Esq., attorney for petitioner

MILLS, Commissioner.--Petitioner appeals from a determination made by a State Education Department employee regarding the operation of a preschool program for children with disabilities. The appeal must be dismissed.

Petitioner is an educational corporation, chartered by the University of the State of New York. By letter dated October 31, 1990, the State Education Department (SED) granted conditional programmatic approval for petitioner to receive public funding for educating pre-school children with disabilities in an integrated mainstream model program serving a maximum of twelve students per class, no more than six of whom had disabilities. A tuition rate per child was approved for this program subject to adjustment upon audit on August 8, 1995 for the 1993-94 school year. By letter dated April 2, 1998, petitioner was informed by Executive Coordinator for Special Education Services Thomas B. Neveldine, an employee of SED, that a determination had been made after a site visit by SED Regional Associate, Madeline Alpert, that the program petitioner had designated as a special class in an integrated setting "was actually a self-contained special class" that was not appropriate for the children placed therein who had individualized education programs requiring an integrated setting.

Petitioner commenced this appeal requesting an order directing approval of payment of tuition reimbursement to petitioner for the period 1993-1995 at the tuition rate designated for the integrated mainstream model program.

The appeal must be dismissed. As noted above, petitioner is challenging a determination made by Executive Coordinator for Special Education Services Thomas Neveldine, an employee of the State Education Department. It is well settled that Education Law "310 does not authorize an appeal to the Commissioner from actions taken by members of the staff of the State Education Department (Appeal of Molloy College, 33 Ed Dept Rep 361; Appeal of the Board of Education of the City School District of the City of Rome, 23 id. 382, aff'd sub nom. Board of Ed., Rome CSD v. Ambach and Polizzi, 118 AD2d 932; Application of Board of Education of the City School District of the City of New York, 19 id. 1; Appeal of Baker, et al., 11 id. 125; Appeal of Vezzani, et al., 11 id. 35; Appeal of Bowen, et al., 1 id. 534, aff'd sub nom. Bowen, et al. v. Allen, 29 Misc. 2d 35, rev'd 17 AD2d 12, aff'd 13 NY2d 663). Such actions can only be challenged in a proceeding brought in a court of competent jurisdiction pursuant to Article 78 of the Civil Practice Law and Rules.