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Decision No. 15,548

Appeal of a STUDENT WITH A DISABILITY, by her parent, from action of the Board of Education of the North Colonie Central School District regarding academic intervention services.

Decision No. 15,548

(March 19, 2007)

Young, Sommer, Ritzenberg, Baker & Moore, LLC, attorneys for respondent, Kenneth S. Ritzenberg, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals a determination of the Board of Education of the North Colonie Central School District (“respondent”) regarding the provision of academic intervention services (“AIS”).  The appeal must be dismissed.

Petitioner’s daughter, a student with a disability, attended third grade at one of respondent’s elementary schools during the 2004-2005 school year.  Pursuant to her individualized education plan (“IEP”), she was placed in a regular third grade class with consultant teacher services in social studies, science, mathematics, language arts, writing and handwriting.  She also received speech, occupational and physical therapies as related services.  The IEP required that she be pulled out of class no more than 20 percent of the school day.  The record indicates that, although the IEP recommended consultant teacher services, typically provided in the classroom, the student was pulled out of class daily for one-half hour for reading and one-half hour for mathematics.  She also was pulled out twice weekly for one-half hour for writing.

In February 2004, petitioner requested that respondent provide her daughter with AIS in reading.  Petitioner met with her daughter’s education team, including teachers, therapists and the principal to discuss her request.  After some discussion, petitioner decided to wait until the following school year to pursue her request for AIS.  In September 2004, petitioner renewed her request.  She specifically asked that her daughter be placed in a remedial reading AIS group that met at the beginning of the school day.  At the time, there were two other non-disabled students in that group.  District staff indicated that they would review how the requested AIS would fit with the student’s current program.  Petitioner also met with the district’s committee on special education (“CSE”) to discuss her request.

On November 2, 2004, the assistant superintendent for instruction notified petitioner that the student already was receiving reading AIS for 20-30 minutes daily in the classroom in a minigroup with two other students.  By letter dated November 9, 2004, the superintendent confirmed that information.  At a November 17, 2004 teacher conference, petitioner also received a written notice, dated October 29, 2004, that the student was receiving writing monitoring AIS that commenced on September 9, 2004.

On November 18, 2004, petitioner challenged the reading services respondent was providing, stating her belief that the daily minigroup sessions were part of the regular classroom reading instruction and, thus, did not constitute AIS.  She also questioned the appropriateness of the writing monitoring AIS that was provided the student.  On November 23, 2004, petitioner sent an “amendment” to her November 18, 2004 letter stating that she “was appealing to preserve my rights because the school is not actually providing AIS.”  She requested information regarding her daughter’s eligibility for AIS in reading and mathematics and how the services would be provided.  She further stated that, if she did not receive an answer in five days, she would deem the failure to respond a denial of AIS and appeal to the Commissioner.

By letter dated December 1, 2004, the superintendent reiterated that the student received reading AIS daily in the classroom and also stated that writing monitoring was an appropriate AIS service for the student at that time.  On December 7, 2004, the district sent an amended letter correcting a typographical omission in the December 1 letter.  By letter dated December 8, 2004, petitioner again challenged the reading services and writing progress monitoring respondent was providing and repeated her request for additional in-class small group reading instruction as an AIS service.  She also reiterated her request for AIS in mathematics.  By letter dated December 15, 2004, the superintendent acknowledged petitioner’s December 8 letter and continued disagreement with the district’s position regarding the AIS services provided her daughter.  This appeal ensued.

Petitioner contends that respondent failed to provide her daughter with AIS services, in contravention of §§100.1(g) and 100.2(ee) of the Commissioner’s regulations.  She seeks an order directing respondent to provide AIS in reading and mathematics.  Respondent asserts that the appeal is barred for lack of subject matter jurisdiction.  Respondent also maintains that the appeal is untimely and that it has provided appropriate AIS services in compliance with the Commissioner’s regulations.

Several procedural matters must be resolved before addressing the merits.  The scope of the verified reply submitted by petitioner is impermissible.  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).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

     Respondent asserts in conclusory fashion that I lack jurisdiction to entertain the appeal.  Respondent cites no authority for this assertion and, indeed, there is none.  Petitioner seeks enforcement of the Commissioner’s regulations, a matter within my authority (Education Law §§305[1] and 310).

The appeal must be dismissed as untimely.  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).  A reconsideration request does not extend the time within which an appeal must be commenced (Appeal of a Preschool Child with a Disability, 43 Ed Dept Rep 343, Decision No. 15,012; Appeal of Williams, 42 id. 260, Decision No. 14,846). 

     Petitioner initiated the appeal on January 13, 2005.  She maintains that the 30-day time period should run from respondent’s December 15, 2004 letter and that the appeal is, therefore, timely.  However, the superintendent notified petitioner on November 9, 2004 regarding the reading AIS the district was providing her daughter.  Petitioner acknowledged the district’s position and her disagreement in her November 18, 2004 letter.  She noted in the amended November 23 letter that she “was appealing to preserve my rights.”  Petitioner’s November 18 and 23 letters again pressed the district to explain its position regarding the student’s reading AIS and added a request for AIS in mathematics.  Thereafter, in the December 1, 2004 letter, as amended December 7, 2004, the superintendent reiterated the district’s position regarding the appropriateness of the AIS services provided.  Petitioner disagreed in her December 8, 2004 letter, and refused further meetings with district staff.  I find that, with respect to petitioner’s challenge to the reading AIS provided her daughter, the 30-day period commenced on November 23 when petitioner acknowledged her disagreement and “preserved her right to appeal.”  Even if the 30-day period was calculated from December 8, 2004 – the date on which petitioner acknowledged the district’s response to her request for reading and mathematics AIS – the appeal is untimely.  The district’s December 15, 2004 letter that merely noted the “thorough exchange of letters” did not extend the time period in which to appeal.

     Petitioner maintains that respondent’s alleged failure to provide appropriate AIS is a continuing wrong, precluding dismissal of the appeal as untimely.  The continuing wrong doctrine applies when the ongoing action is itself an unlawful action, such as unlawful appointments to a district’s shared decision-making team (Appeal of Sadue-Sokolow, 39 Ed Dept Rep 6, Decision No. 14,155) or certain ongoing expenditures under an austerity budget that did not comply with the law (Appeal of Aarseth, 32 Ed Dept Rep 506, Decision No. 12,901).  The doctrine does not apply where the specific action being challenged is a single action, inaction or decision and the resulting effects are not intrinsically unlawful (Appeal of Rizzo, 44 Ed Dept Rep 173, Decision No. 15,138; Appeals of American Quality Beverages, LLC, et al., 42 id. 144, Decision No. 14,804).  Although subject to disagreement and challenge, a board’s determination of eligibility for AIS and level of service needed, is not inherently unlawful and, thus, does not constitute a continuing wrong within the meaning of that doctrine (seeAppeal of Williams, 42 Ed Dept Rep 260, Decision No. 14,846; Appeal of S.T., 41 id. 348, Decision No. 14,709; Appeal of McGann-Masucci, 29 id. 106, Decision No. 12,236). 

     To the extent that petitioner challenges the AIS services respondent provided during the 2004-2005 school year, the appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of V.L., 44 id. 160, Decision No. 15,132; Appeal of Garvin, 44 id. 30, Decision No. 15,087).  The parties continued to submit papers for consideration in the appeal up until May 2, 2005.  Inasmuch as the academic year concluded shortly thereafter, the appeal as to that year is moot.

     The appeal must also be dismissed on the merits.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Patton, et al., 42 Ed Dept Rep 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530).

     Section 100.1(g) of the Commissioner’s regulations provides, in pertinent part:

     Academic intervention services means additional instruction which supplements the instruction provided in the general curriculum and assists students in meeting the State learning standards ... provided that such services shall not include ... special education services and programs ....  Academic intervention services are intended to assist students who are at risk of not achieving the State learning standards in English language arts, mathematics, social studies and/or science, or who are at risk of not gaining the knowledge and skills needed to meet or exceed designated performance levels on State assessments.  Academic intervention services shall be made available to students with disabilities on the same basis as nondisabled students, provided, however, that such services shall be provided to the extent consistent with the [IEP] developed for such student ....

     Section 100.2(ee) provides, in pertinent part:

     Schools shall provide [AIS] to students in kindergarten to grade three when such students: (i) are determined, through a district-developed or district-adopted procedure to lack reading readiness ... or (ii) are determined, through a district-developed or district-adopted procedure ... to be at risk of not achieving the State designated performance level in English language arts and/or mathematics.

     Pursuant to §100.2(ee) of the Commissioner’s regulations, districts were required to adopt a description of AIS services (“AIS plan”) by July 1, 2000 and update the plan biannually.  Respondent’s AIS plan, revised October 2004, sets forth the criteria for AIS eligibility in grades K-3, including assessment of academic performance (i.e. report cards, performance on departmental and district exams, and standardized testing) as well as factors that impact performance, such as attendance, family issues, health, social and behavioral issues.

     The plan sets forth the AIS services available at the elementary, junior high and high school levels.  Elementary level AIS services include a kindergarten and K-2 program, ‘Grade 1-6 Summer School’, additional sessions with other remedial reading, math or writing instruction, and ‘Monitoring’.  For the listed remedial sessions, the plan provides, “[s]tudents achieving significantly below grade level in reading, writing or mathematics are seen by a remedial teacher or in small groups.  Instruction occurs two to three times a week, 30 minutes a session, depending on need.”  The monitoring service is described as “an AIS moderate intensity program intended for students who scored below the cutoff on the New York State assessment in grades 4 and 5 English/Language Arts, social studies, mathematics and science.”

     Petitioner claims that the daily 20-30 minute sessions with the classroom teacher in a minigroup of 2-3 students do not constitute AIS, but instead are part of the regular reading program.  Respondent denies the daily minigroup session is part of the regular reading program and asserts that the instruction is an AIS remedial service, at an appropriate level, and is consistent with the student’s IEP.

     Petitioner correctly asserts that AIS services are general education services, not special education (8 NYCRR §100.2[g]), and that they constitute additional instruction that supplements regular classroom instruction (New York State Education Department, Academic Intervention Services: Questions and Answers -Draft, dated January 2000 [“Q & A’s”], at 4).  Academic intervention services provide extra time for focused instruction and/or increased student-teacher instructional contact time (id.).  They may not supplant special education services (Q & A’s, at 5).

     However, petitioner fails to submit sufficient proof to support her claim that the daily minigroup reading instruction her daughter received is part of the regular reading program and not AIS.  Her petition contains only conclusory allegations, and the one other student’s AIS report she provides is unpersuasive.  In contrast, respondent submits affidavits from the classroom teacher and school principal stating that the daily minigroup sessions are AIS, are remedial and are in addition to the student’s regular and special education services.       

Petitioner argues that respondent’s failure to provide her with notice of commencement of the reading AIS services or a quarterly report, as required by §100.2(ee) of the Commissioner’s regulations, establishes that the daily sessions are not AIS.  Respondent admits it neglected to provide the notice and report but indicates that student is on the district’s AIS tracking system.  Respondent’s failure to provide the documentation to petitioner is insufficient to establish that the student was not receiving AIS, particularly in light of the submitted affidavits.

Respondent maintains that, in placing petitioner’s daughter in AIS within the classroom – rather than in a pull-out session – it implemented the service consistent with the student’s IEP, which limits the amount of time spent out of the general education setting to no more than 20 percent of the day.  I do not find respondent’s position to be unreasonable or contrary to law.  In addition, there is no requirement that a board of education implement a parental preference for a particular AIS service.

Petitioner also claims her daughter was entitled to AIS in mathematics, apparently based upon two test scores her daughter received.  Respondent’s AIS plan indicates that academic performance, including report cards as well as test scores may result in placement in AIS services, on consensus by district staff.  Neither party has provided any further information regarding the student’s performance in mathematics.  Thus, the record before me is insufficient to conclude that respondent was required to provide AIS to petitioner’s daughter.

Finally, to the extent petitioner challenges the writing monitoring provided to the student, the record is also insufficient.  Respondent’s AIS plan indicates that monitoring is an elementary-level service only for students that score below the cutoff on the grades 4 and 5 assessments in English language arts, social studies, mathematics and science.  The record is devoid of any information regarding the student’s writing skills, making it impossible to determine whether some other AIS service was warranted.

In view of the above disposition, I need not address the parties’ remaining claims.