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Decision No. 15,586

Appeal of the SCHOOL FOR LANGUAGE AND COMMUNICATION DEVELOPMENT from action of the State Education Department regarding program approval.

Decision No. 15,586

(May 18, 2007)

Farrell Fritz, P.C., attorneys for petitioner, James M. Wicks, David A. Sheffel, and Gabriel R. Schaich, Esqs., of counsel

MILLS, Commissioner.--Petitioner, a nonpublic school serving preschool and school-age children with disabilities, and non-disabled children, challenges a determination allegedly made by a State Education Department employee regarding program approval.  The appeal must be dismissed.

By letter dated April 2, 2007, an employee of the State Education Department’s Office of Vocational and Educational Services for Individuals with Disabilities responded to a letter from petitioner’s executive director dated March 12, 2007.  Petitioner alleges that the Department employee informed petitioner that it could no longer operate a school-age program combining two 6:1:1 student/staff ratio classes in Glen Cove, New York.  Petitioner claims that it has been operating such a program since 1994.

The appeal must be dismissed for lack of jurisdiction. 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 New York Inst. of Massage, Inc., 45 Ed Dept Rep 495, Decision No. 15,391; Appeal of Karpen, 40 id. 199, Decision No. 14,460; Appeal of the Bd. of Educ. of the City School Dist. of the City of Rome, 23 id. 382, Decision No. 11,253, affdsubnomBd. of Educ., Rome City School Dist. v. Ambach and Polizzi, 118 AD2d 932). 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.