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Decision No. 16,366

Appeal of ASSOCIATES FOR BILINGUAL CHILD DEVELOPMENT, INC. from action of the New York State Education Department regarding a tuition rate.

Decision No. 16,366

(June 28, 2012)

Davidoff Malito & Hutcher, LLP, attorneys for petitioner, Michael Zapson and David I. Lieser, Esqs., of counsel

KING, Jr., Commissioner.--Petitioner appeals a determination of the New York State Education Department Rate Setting Unit and the New York State Education Department Office of Management Services Special Education Program Services and Reimbursement Bureau (“State Education Department”) which established a certified tuition rate for special education services provided by petitioner during the 2009-2010 school year.  The appeal must be dismissed.

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 the Castleton Public Library, 49 Ed Dept Rep 305, Decision No. 16,035; Appeal of the School for Language and Communication Development, 46 id. 536, Decision No. 15,586; Appeal of Friends to the Elderly, Youth & Family Center, Inc., 46 id. 227, Decision No. 15,489).  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.  Therefore, I lack jurisdiction over the claims raised in petitioner’s appeal.