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Decision No. 16,399

Appeal of THERESA MCCORMICK, on behalf of her son JOHN, from action of the New York City Department of Education regarding transportation.

Decision No. 16,399

(August 30, 2012)

Michael A. Cardozo, Corporation Counsel, attorney for respondent

KING, JR., Commissioner--Petitioner appeals the decision of the New York City Department of Education (“respondent”) to deny her request for transportation.  The appeal must be dismissed.

Petitioner and her son are residents of respondent’s district.  During the 2011-2012 school year, John attended fifth grade at P.S. 312 in Brooklyn.  In October 2011, petitioner requested a medical variance from respondent’s Office of Pupil Transportation (“OPT”) to permit John to receive school bus (“yellow bus”) service.  Petitioner explained that John suffers from severe asthma, for which he was hospitalized in February and June 2011, and “needs a bus mostly due to cold weather.”

In its verified answer, respondent explains that, pursuant to its transportation policy, students in grades three through five who reside less than one mile from school are ineligible for free transportation.  Petitioner does not allege that John is eligible for yellow bus service based on grade and distance.  Respondent also explains that students who are otherwise ineligible for free transportation to and from school due to grade and/or distance may apply for a medical variance if the student “becomes incapacitated due to a serious medical condition and the child’s physician says the child may attend classes if appropriate transportation is provided.”  Respondent also states that requests for medical variances are referred by OPT to respondent’s medical board which has “a physician specifically employed by the DOE for the purpose of reviewing medical variances....”

By letter dated October 20, 2011, OPT denied petitioner’s request on the grounds that “no medical justification has been presented to require a transportation variance.”  OPT stated that John’s asthma is “well controlled on prescribed medication ....”

This appeal ensued.  Petitioner’s request for interim relief was granted on December 7, 2011.

Petitioner contends that “it will be fatal to [John’s] health if he is not on a school bus, he cannot walk back and forth to school.”  Petitioner also alleges that if John is not provided with yellow bus service, “he will get very ill this year and miss countless days of school.”  Petitioner further claims that respondent granted John a medical variance for transportation for the 2010-2011 school year.

Respondent argues that its decision was not arbitrary and capricious and was in all respects proper.

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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  The issues raised in this appeal relate to petitioner’s request for a medical variance to receive yellow bus service for the 2011-2012 school year, which has concluded.  Moreover, the record indicates that variance requests are submitted annually.  Consequently, on that basis, the appeal is moot (seeAppeal of Litvak-Staroselsky, 51 Ed Dept Rep, Decision No. 16,340).