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Decision No. 16,341

* Subsequent History: Matter of Students With Disabilities v King; Supreme Court, Albany County; Decision and Order remanded for further proceedings; January 23, 2013; Commissioner issued Decision No. 16,490; June 24, 2013. *

Appeal of STUDENTS WITH DISABILITIES, by their parents, from action of the Board of Education of the Geneseo Central School District regarding transportation.

Decision No. 16,341

(March 29, 2012)

Joyce B. Berkowitz, Esq., attorney for petitioners

Wayne A. Vander Byl, Esq., attorney for respondent

KING, JR., Commissioner.--Petitioners appeal the refusal of the Board of Education of the Geneseo Central School District (“respondent”) to provide transportation for their children to a nonpublic school.  The appeal must be dismissed.

Petitioners’ children have been classified as students with disabilities by respondent’s Committee on Special Education (“CSE”).  For the 2011-2012 school year, the CSE recommended a special education program, resource room, counseling and speech-language therapy for one of the children.  At the time this appeal was commenced, the other child’s CSE meeting for 2011-2012 was scheduled; for the 2010-2011 school year, her CSE recommended a special education program, along with consultant teacher services, resource room, counseling and speech language therapy.  Petitioners unilaterally placed their children in Hope Hall, a non-public general education school located in the Gates-Chili Central School District (“Gates-Chili”).  Both children attended school at Hope Hall during the 2010-2011 school year, with transportation provided by respondent and special education services provided by Gates-Chili.

Petitioners made a timely application to respondent for transportation for both children to Hope Hall for the 2011-2012 school year.  The distance between petitioners’ residence and Hope Hall is greater than 15 miles and less than 50 miles.  Education Law §3635(1) requires respondent to provide transportation to all students up to 15 miles.  Unless transportation beyond 15 miles is authorized under respondent’s transportation policy, petitioners’ children would only qualify for transportation if they were determined to be eligible under the provisions of Education Law §4402(4)(d). 

By letter dated May 6, 2011, respondent’s superintendent denied petitioners’ request based on the fact that Hope Hall did not offer special education services, and that the services provided by the Gates- Chili Central School District do not result in the program at Hope Hall being similar to the program recommended by respondent’s CSE.  This appeal ensued.  Petitioner’s request for interim relief was denied on July 1, 2011.  

Petitioners contend that respondent is required to provide transportation for their children pursuant to Education Law §4402(4)(d) as the special education services their children will receive at Hope Hall are similar to those recommended by respondent’s CSE. 

Respondent contends that Education Law §4402(4)(d) is inapplicable because the children do not attend a school that provides a program similar to the program recommended in their IEPs, as the statute requires.

Education Law §4402(4)(d) provides that a board of education must provide transportation up to a distance of 50 miles to and from a nonpublic school which a student with a disability attends if “such child attends such school for the purpose of receiving services or programs similar to special educational programs recommended for such child by the local committee on special education.”

The statute requires that a board provide transportation when a parent makes a unilateral placement to a school which offers a program similar to the program recommended in the child’s IEP.  However, the record reflects that Hope Hall is registered with the State Education Department as a general education school and provides no special education services.  Accordingly, the placement cannot be considered a school which offers a program similar to that recommended in the child’s IEP for purposes of transportation as contemplated by Education Law §4402(4)(d)(see Appeal of a Student With a Disability, 33 Ed Dept Rep 712, Decision No. 13,209).  Consequently, petitioners’ children are not entitled to transportation pursuant to that statute.

Unless required to transport the children pursuant to Education Law §4402, respondent correctly argues that it is without authority to do so under Education Law §3635.  That statute authorizes a board of education to provide transportation beyond the 15 mile limit only with voter approval (Education Law §3635(1), Appeal of a Student with a Disability, 46 Ed Dept Rep 102, Decision No. 15,454; Appeal of a Student with a Disability, 43 id. 524, Decision No. 15,073).  It appears from the record that respondent’s transportation policy does not authorize transportation for distances greater than 15 miles between a student’s residence and the school the student attends.  Accordingly, respondent lacks authority to provide this transportation pursuant to Education Law §3635.