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Decision No. 15,454

Appeal of a STUDENT WITH A DISABILITY, by her parents, from action of the City School District of the City of Mechanicville regarding transportation.


Decision No. 15,454


(August 28, 2006)


Girvin & Ferlazzo, P.C., attorneys for respondent, Kathy Ann Wolverton, Esq., of counsel


MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the City School District of the City of Mechanicville (“respondent”) denying their transportation request.  The appeal must be dismissed.

Petitioners and their daughter, who is legally blind, reside within respondent’s district.  Petitioners’ daughter attends St. Pius X, a nonpublic school, located 17 miles from petitioners’ home.  For the past four years, including the 2005-2006 school year, respondent transported petitioners’ daughter to St. Pius X.  During a March 1, 2006 Committee on Special Education (“CSE”) meeting, petitioners’ daughter, with petitioners’ agreement, was declassified as a student with a disability.  A Section 504 accommodation plan was prepared for the 2006-2007 school year rather than an Individualized Education Plan (“IEP”), which petitioners’ daughter had in the past.  The record is unclear as to whether petitioners’ daughter received special education services at St. Pius X; however, no special transportation requirements are described in her previous IEPs.

By letter dated April 17, 2006, respondent’s interim business manager (“manager”) notified petitioners that respondent had denied petitioners’ transportation request for the 2006-2007 school year because St. Pius X was “beyond the 15 mile distance requirement established by the State.”  Petitioners received the letter on April 20, 2006, and on May 9, 2006 spoke with the manager regarding this decision.  Petitioners were advised that respondent would uphold its decision to deny transportation and petitioners’ request to appeal was denied.  Petitioners wrote to the manager on May 10, 2006 asking that their letter serve as a “formal request for appeal.”  By letter dated May 11, 2006, the manager responded by stating that respondent denied transportation to St. Pius X for the 2006-2007 school year and that the appropriate avenue of appeal would be to the Commissioner of Education.  This appeal ensued.

Petitioners contend that for the past four years respondent knew that St. Pius X was more than 15 miles from their home and that because it provided transportation in the past, it should continue to do so.  Additionally, petitioners contend that such transportation was previously approved based on the CSE’s recommendations.  Finally, petitioners contend that transportation will not be provided because of the possibility of additional cost to the school district, not the 15-mile limit.    

Respondent asserts that the appeal is untimely and maintains that its transportation policy and determination are in compliance with Education Law �3635.  Respondent further requests that I disregard petitioners’ reply because it is not verified and it sets forth additional facts and allegations not previously asserted.

Initially, I will address the procedural issues.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR ��275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Schildhorn, 44 Ed Dept Rep 212, Decision No. 15,152; Appeal of Kirschenbaum, 43 id. 366, Decision No. 15,020; Appeal of Hollister, 39 id. 109, Decision No. 14,188).  Additionally, section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  Petitioners’ reply adds assertions that should have been in the petition.  Moreover, the reply submitted was not verified in violation of �275.5.   Therefore, I have not considered petitioners’ reply (SeeAppeal of Nocerino, 40 Ed Dept Rep 244, Decision No. 14,472; Appeal of Principio, 39 id. 11, Decision No. 14,157).

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR �275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of C.F., 44 Ed Dept Rep 109, Decision No. 15,113; Appeal of O.W., 43 id. 150, Decision No. 14,949).  Respondent sent a letter to petitioners on April 17, 2006 informing them that respondent had decided not to provide bus transportation for their daughter to St. Pius X for the 2006-2007 school year.  Petitioners argue that they should be given 30 days from the date of respondent’s May 11, 2006 letter confirming the April 17, 2006 decision.  Petitioners also argue that they were unfamiliar with the appeal process and any delay should therefore be excused.  

It is well settled that the time to commence an appeal runs from the date of the decision under review (Appeal of Rheaume-Wellenc, 37 Ed Dept Rep 83, Decision No. 13,811; Appeal of Ragot, 35 id. 299, Decision No. 13,548). Petitioners received the April 17, 2006 notice from respondent regarding their transportation decision on April 20, 2006 yet they did not file this appeal until May 30, 2006.  Moreover, petitioners’ requests to respondent for appeal or reconsideration of the challenged decision do not extend the 30-day time period (Appeal of Rheaume-Wellenc, 37 id. 83; Decision No. 13,811; Appeal of Ragot, 35 id. 299; Decision No. 13,548).  Except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of E.M., 44 id. 156, Decision No. 15,130; Appeal of R.A. and D.A., 43 id. 281, Decision No. 14,995).  I find no such circumstances here.  Accordingly, the appeal must be dismissed as untimely.

The appeal must also be dismissed on the merits.  St. Pius X is located more than 15 miles from petitioners’ home and respondent is therefore not obligated to provide transportation to petitioners’ daughter under Education Law �3635(1)(a).  Petitioners do not argue, and there is no evidence, that petitioners’ daughter is entitled to transportation under Education Law �3635(1)(b)(i) or (ii).  Also, since petitioner’s daughter has been declassified as a special education student, and will not be receiving special education services for the 2006-2007 school year, respondent has no obligation to provide transportation under Education Law �4402(4)(d) (Application of a Student With a Disability, 33 Ed Dept Rep 712, Decision No. 13,209;Application of a Student With a Disability, 32 id. 467, Decision No. 12,888).

Petitioners argue that because respondent previously provided transportation for their daughter to St. Pius X, located outside the statutory transportation limit, it is obligated to continue to provide transportation.  The fact that respondent transported petitioners’ daughter for the past four years does not preclude it from declining to provide such transportation in the future when it is not legally obligated to do so under Education Law ��3635 or 4402 (Application of a Student With a Disability, 33 Ed Dept Rep 712, Decision No. 13,209; Appeal of Robert G., 32 id. 60, Decision No. 12,758).  Under these circumstances, I find that respondent properly exercised its discretion in determining petitioners’ daughter ineligible for transportation to St. Pius X for the 2006-2007 school year.

In light of this disposition, I need not address the parties’ remaining contentions.