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Decision No. 14,169

Appeal of A STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Herricks Union Free School District regarding transportation.

Decision No. 14,169

(July 22, 1999)

Ingerman Smith, L.L.P., attorneys for respondent, Christopher Venator, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Herricks Union Free School District ("respondent") denying his request to transport his son to a nonpublic school. The appeal must be dismissed.

Petitioner's son was referred to respondent's Committee on Special Education ("CSE") in the spring of 1998 by his classroom teacher. The CSE convened on June 2, 1998 and found the child eligible for special education services due to a learning disability. The CSE recommended that the student be placed in a self-contained first grade classroom with the provision of speech and language services to commence in September 1998. By letter dated August 15, 1998, the child's mother disagreed with the proposed placement in a self-contained class and requested placement in a regular classroom with an aide. This alternative placement was based on evaluations performed by a pediatric neurologist hired by the child's parents and the child's pediatrician, as well as on the child's progress with a tutor during the summer of 1998. Respondent placed the child in a regular first grade classroom with resource room services during the week of September 14, 1998 and convened its CSE to consider this request.

On September 11, 1998, the CSE reaffirmed its previous recommendation for a self-contained program. Petitioner placed his son in a nonpublic school and requested transportation from respondent in a letter dated September 18, 1998. The superintendent met with petitioner on September 24, 1998 and advised him of his right to request an impartial hearing to review the CSE's placement determination. The superintendent stated at that meeting that he would recommend to the board that it favorably consider petitioner's transportation request. The board tabled petitioner's request at its October 1, 1998 meeting, pending advice from counsel, and denied petitioner's request on October 15, 1998 as untimely because it was made after April 1 without a valid reason for the delay. Petitioner requested an impartial hearing by letter dated October 16, 1998, received by respondent on October 19, 1998. The hearing was held on March 1, 2 and 12, 1999 and a decision was issued May 11, 1999. An appeal of the hearing decision is pending before the State Review Officer (SRO).

Petitioner commenced this appeal on October 20, 1998, seeking an order that respondent transport his son to and from his residence and the nonpublic day school for the remainder of the 1998-1999 school year. Petitioner also seeks reimbursement for his expenses incurred in transporting his son to and from the nonpublic day school for the period commencing October 1, 1998 when respondent first met to consider his request. Petitioner's request for interim relief was denied on October 30, 1998.

Petitioner contends that he has a reasonable excuse for the late transportation request because the circumstances leading up to placing his son in a nonpublic school could not have been foreseen at the time of the April first deadline. Petitioner alleges bad faith by respondent regarding its CSE placement determination and argues that his only reasonable alternative was to move his son mid-year into a nonpublic school pending the impartial hearing officer's review of respondent's actions.

Respondent denies acting in bad faith and contends that petitioner's belated decision to enroll his son in a nonpublic school is an insufficient excuse for failure to file a timely transportation request. Respondent also contends that it does not presently transport students to the nonpublic school that petitioner's son attends and that it would incur significant additional costs not allotted in its budget, were it to grant petitioner's request. Respondent further contends that it denied petitioner's request consistent with the manner in which it has handled similar requests in the past.

The appeal must be dismissed because it is moot. The Commissioner of Education only decides matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of June D., 38 Ed Dept Rep 596, Decision No. 14,101; Appeal of McConnon, 37 id. 691, Decision No. 13,959; Appeal of Oyibo, 37 id. 356, Decision No. 13,878). Education Law "3635(2) requires that a request for transportation to a nonpublic school must be submitted annually, no later than the first day of April preceding the school year for which transportation is requested. Petitioner's transportation request was for the 1998-1999 school year, which has concluded. Accordingly, the appeal is moot and must be dismissed.

To the extent petitioner requests reimbursement for the cost of transporting his son for the period commencing October 1, 1998, petitioner must exhaust his remedies under Education Law "4404. Because petitioner disagrees with the CSE's placement and unilaterally placed his son in a nonpublic school, his recourse to seek reimbursement of the costs associated therewith is an impartial hearing. If petitioner is dissatisfied with the hearing decision, he may appeal to the SRO (Education Law "4404; 8 NYCRR "200.5). Here, petitioner seeks relief from the Commissioner that is not within his jurisdiction but rather is within the "4404 jurisdiction of the impartial hearing officer and the SRO.