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Decision No. 14,081

Appeal of a STUDENT SUSPECTED OF HAVING A DISABILITY from action of the Board of Education of the Holley Central School District regarding transportation between school and a child care location.

Decision No. 14,081

(February 18, 1999)

Heath and Martin, attorneys for respondent, Jeffrey R. Martin, Esq., of counsel.

MILLS, Commissioner.--Petitioner appeals the denial by the Board of Education of the Holley Central School District ("respondent") of her request for transportation between the public school her son attends and a child care location outside the district. The appeal must be dismissed.

In the summer of 1998, petitioner’s son was preparing to enter kindergarten in respondent's district. He has a history of eye cancer and has completed chemotherapy and radiation treatments. His cancer treatments have caused other medical complications requiring additional medical care, including occasional hospitalization.

On June 30, 1998, petitioner sent a letter to respondent’s superintendent requesting that the district provide transportation for her son from his school to a child care provider located outside the district. On July 21, 1998, petitioner presented her request to respondent. Respondent denied the request. This appeal ensued.

Petitioner claims that in light of her son’s serious medical condition and associated complications, respondent should be required to transport her son to a child care location outside respondent’s district. Petitioner further claims that she has been unable to locate a competent child care provider within the district and that the child care provider outside the district is capable of serving her son’s special needs. She also maintains that the child care provider is closer to her place of employment, her son's pediatrician and his grandparents in case of an emergency. She further claims that respondent's "latch key program" is not suitable for her son due to his medical condition and that the transportation would provide her son with equal access to daycare. In addition, petitioner claims that the requested transportation can be provided with little cost to respondent.

Respondent contends that the Education Law does not require it to provide transportation to child care providers located outside the district. Respondent further maintains that its policy provides for transportation to child care providers located within the district, but not to child care providers located outside the district. Respondent also argues that the requested transportation is primarily for petitioner’s own convenience.

Under Education Law "3635(1)(e), boards of education have the discretion to determine whether to offer transportation between schools located within the district and child care programs located within the district (Appeal of Grove, 33 Ed Dept Rep 176; Appeal of Albert, 27 id. 371). If a board elects to provide transportation to a child care location, it may limit such transportation to child care locations within the child’s attendance zone, with the exception of child care locations licensed pursuant to Social Services Law "390, where transportation must be provided district-wide (Education Law 3635[1][e]; Appeal of Grove, supra).

A school district, however, does not have the discretion to provide transportation to child care locations outside of the district under Education Law "3635(1)(e). Rather, the statute specifically limits a school district’s authority to provide transportation to child care locations "situated within the school district." Therefore, there is no statutory authority for a school district to provide transportation to a child care location outside of the school district under Education Law "3635(1)(e). It is undisputed that petitioner’s child care provider is located outside respondent’s district. Consequently, petitioner’s son is not entitled to the requested transportation pursuant to "3635(1)(e) of the Education Law.

Petitioner’s claim that there would be little cost to provide the requested transportation is irrelevant. The fact that a school district can accommodate a transportation request under existing arrangements or with little cost or inconvenience is no basis upon which to provide transportation for which a child is not otherwise eligible (Appeal of Franzenburg, 33 Ed Dept Rep 284.

Moreover, petitioner maintains that respondent’s failure to transport her son to a child care location outside the district would create an undue hardship on her family. While I am very sympathetic to petitioner’s concerns and the difficulties she and her family have had to endure given her son's condition, financial or emotional hardship is not a legal basis for granting transportation (Appeal of Neubauer, 32 Ed Dept Rep 320).

To the extent that petitioner’s son may qualify for special transportation arrangements under the federal Individuals with Disabilities Education Act ("IDEA") or Article 89 of the Education Law, it is unclear from the record as to whether or not he has been classified by respondent’s Committee on Special Education ("CSE") as a student with a disability. Neither petitioner nor respondent address the issue in their pleadings, and the record does not contain a copy of an individualized education plan ("IEP") for petitioner’s son.

However, the record contains a letter from one of the student’s health care providers to respondent’s superintendent that indicates petitioner’s son was "followed" by Early Intervention and respondent’s Committee on Pre-school Special Education for a visual impairment, that he has orientation and mobility issues and has received speech therapy. The letter also indicates petitioner asked respondent’s CSE chairperson to consider her son’s transportation needs, but she was not supportive of the request and referred petitioner to respondent’s superintendent. In addition, petitioner’s reply indicates that there have been discussions with respondent’s CSE chairperson about creating a section 504 plan for the requested transportation. Finally, the letter alleges that a CSE meeting was held concerning petitioner’s son without petitioner present. Respondent did not address, nor refute these claims.

School administrators have a duty to refer a child directly to the CSE when there is a reasonable basis to suspect that the child may have a disability (8 NYCRR 200.4[a]; Appeal of a Student with a Disability, 33 Ed Dept Rep 1; Appeal of a Student with a Disability, 33 id. 101). Given the content of the letter submitted by the student’s health care providers to the district’s superintendent, it appears that district personnel are aware of the possibility that petitioner’s son has a disability, triggering the need for a referral to the district’s CSE. It is incumbent upon respondent’s CSE to determine whether petitioner’s son is in fact a student with a disability and therefore eligible to receive special education services (Education Law "4402; 8 NYCRR "200.4; Appeal of Jane G., 38 Ed Dept Rep 1).

Accordingly, to the extent respondent has not properly convened its CSE to consider the classification of the student and any necessary related services, including transportation, it is reminded of its obligation to do so (Appeal of a Student with a Disability, 36 Ed Dept Rep 181). Thereafter, if petitioner is dissatisfied with the CSE's recommendation, she may appeal to an Impartial Hearing Officer ("IHO") and may further appeal the IHO's decision to the State Review Officer (Education Law "4404[1] and [2]; 8 NYCRR "200.5).