Appeal of A STUDENT WITH A DISABILITY from action of the New York City Department of Education regarding transportation.

Decision No. 15,806

(August 1, 2008)

Michael A. Cardozo, Esq. Corporation Counsel, attorney for respondent, Katherine G. Rodi, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the New York City Department of Education (“respondent”) denying her son a medical variance for transportation to and from the public school he attends.  The appeal must be dismissed.

Petitioner and her son are residents of respondent’s school district.  Petitioner’s son is a student with a disability (a hearing impairment) who attends respondent’s Public School 36 (“P.S. 36”) and received transportation by bus to and from that school while enrolled in kindergarten, first and second grades.  When he entered the third grade for the 2007-2008 school year, respondent no longer provided him with transportation due to the distance from his home to P.S. 36.

On May 24, 2007, petitioner requested a medical variance from respondent’s Office of Pupil Transportation (“OPT”) to permit her son to ride a bus rather than walk to and from school for safety reasons related to his hearing impairment.  OPT denied the request by letter dated August 6, 2007, for lack of medical justification and informed petitioner that she could appeal to the Commissioner of Education.  Petitioner commenced this appeal on September 25, 2007.

On September 13, 2007, petitioner filed a second request for a medical variance, which was also denied by OPT.  In addition, petitioner’s October 25, 2007 request for transportation from respondent’s Committee on Special Education (“CSE”) was denied on November 7, 2007, with a referral back to OPT.  Respondent has provided interim busing to the student during the pendency of this appeal.

Petitioner contends that her son is entitled to a medical waiver for transportation because his hearing loss causes him to miss crucial sounds necessary to safely walk to and from school, including over a four-lane highway, on a busy service road and along numerous streets without sidewalks.  Petitioner argues that respondent’s denial of a medical waiver is inconsistent with information provided in a letter to parents dated April 27, 2007 from the principal of P.S. 36, warning that headphones, CD players, iPods and other devices can be a safety threat as “they do not permit children to hear what is going on in their surrounding environment” when walking to and from school.

Respondent contends that the appeal should be dismissed as untimely because it was commenced on September 26, 2007, more than 30 days from receipt of OPT’s August 6, 2007 letter denying her original request for a medical variance.  Respondent also contends that the appeal should be dismissed on the merits because the distance from the student’s home to P.S. 36 is less than one mile and therefore the student is ineligible for transportation pursuant to Chancellor’s Regulation A-801 Section I, paragraph 2.  Respondent acknowledges that its policies allow for exceptions to this eligibility requirement through medical emergency and access variances and argues that OPT applied the proper standard in denying petitioner’s request for a medical variance, i.e. requiring documentation by the student’s doctor of the student’s need for transportation for a period of time because of serious medical reasons.

The appeal must be dismissed for lack of jurisdiction.  An appeal to the Commissioner is not the proper forum to determine the appropriateness of special transportation services for children with disabilities.  Education Law §4404(1)(a) provides for an impartial hearing to resolve a dispute arising from the November 7, 2007 action of respondent’s CSE.  Moreover, on August 9, 2007, as a result of a complaint by a different student, the United States Department of Education’s Office for Civil Rights (“OCR”) found respondent’s procedures for appealing medical waiver requests for transportation to violate §504 of the Rehabilitation Act of 1973 (“§504”), as amended, 29 USC §794 etseq. and its implementing regulation at 34 CFR §104.36, (seeLetter to Klein, 49 IDELR 229).[1] At OCR’s request, respondent revised Chancellor’s Regulation A-710, “§504 Policy and Procedures for Students”, to require its §504 committee, not the parent, to forward requests for transportation as a related aid or service to OPT and to use OPT’s recommendation in making a final determination that can then be appealed using respondent’s impartial hearing process (id.).  Ultimately, enforcement of §504 is within the jurisdiction of the federal courts, the U.S. Department of Justice and the U.S. Department of Education and may not be obtained in an appeal brought pursuant to Education Law §310 (Appeal of a Student Suspected of Having a Disability, 40 Ed Dept Rep 75, Decision No. 14,425; Appeal of a Student with a Disabilty, 39 id. 752, Decision No. 14,369; Appeal of a Student with a Disability, 36 id. 322, Decision No. 13,736).

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

THE APPEAL IS DISMISSED.

END OF FILE

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