Appeal of a STUDENT WITH A DISABILIY, by his parent, from action of the Board of Education of the Floral Park-Bellerose Union Free School District regarding transportation.

Decision No. 16,430

(November 16, 2012)

Asher, Gaughran LLP, attorneys for Petitioner, Julie Gaughran, Esq., of counsel

Kevin A. Seaman, Esq., attorney for respondent

KING, JR., Commissioner.--Petitioner appeals the refusal of the Board of Education of the Floral Park-Bellerose Union Free School District (“respondent”) to provide transportation for her son to a nonpublic school.  The appeal must be dismissed.

In October 2011, respondent’s Committee on Special Education (“CSE”) classified petitioner’s son (the “student”) as a student with a learning disability.  The student’s Individualized Education Program (“IEP”) provided him with daily resource room for 45 minutes in a setting of five students to one teacher to receive direct instruction in reading and writing using the “Wilson program, a multi-sensory phonics based program.”  The IEP also provided the student with testing accommodations and group speech therapy twice a week for 30 minutes each.  Beginning with the 2012-2013 school year, petitioner unilaterally placed the student at the Windward School, a nonpublic school located in White Plains.

Petitioner submitted a timely request for transportation to the Windward School which is located approximately 26 miles from respondent’s district office. By letter dated March 22, 2012, respondent denied petitioner’s request because the distance exceeded the 15 mile limit for transportation under Education Law §3635.  On March 26, 2012, petitioner wrote to respondent clarifying that her request should be considered in accordance with Education Law §4402 rather than Education Law §3635.  By letter dated March 29, 2012 petitioner’s request for transportation was again denied.  This appeal ensued.

Petitioner contends that, in accordance with Education Law §4402(4)(d), her son is entitled to transportation to the Windward School because his education program is similar to the education program respondent’s CSE recommended in his IEP.

Respondent asserts that petitioner has failed to meet her burden of proof and further contends that the Windward School’s program is not similar to the special education program that it recommended for petitioner’s son. Respondent asserts that the Windward School program is a more restrictive setting than that which it proposed.  Finally, respondent maintains that it has not authorized transportation above the 15 mile limit established pursuant to Education Law §3635.

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 such transportation when a parent makes a unilateral placement in a school which offers a program similar to that recommended in the child’s IEP.  Petitioner asserts that the program provided by the Windward School is similar to the recommended program in the student’s IEP because both provide the student with “daily reading instruction in a small class using a multi-sensory, phonics based program.”   To establish that the programs are similar, petitioner attaches a copy of the student’s IEP and a pamphlet describing the Windward School. 

At respondent’s school, the student received remedial reading and writing instruction using the Wilson Reading System during a 45 minute daily resource room in a setting of five students to one teacher. According to petitioner, the CSE chairperson described the Wilson Reading System as a “multi-sensory, phonics based program.” The Windward School provides the student instruction in reading, writing and spelling using the Orton-Gillingham approach, which is another remedial program using a “multi-sensory approach.”  As evidence that the two remedial programs are similar, petitioner submits information from the Wilson Reading System’s website which describes it as “[B]ased on Orton-Gilligham principles....”   Petitioner also states that at the Windward School the student will not be placed in a class larger than 12 students.  Based on these asserted similarities, petitioner argues that the student should be provided transportation in accordance with Education Law §4402(4)(d).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).  While the methodology used in the remedial reading and writing programs at both schools may be similar, I do not find that petitioner has met her burden of proving that the student was placed at the Windward School to receive services or programs similar to those recommended in his IEP.  Petitioner implies that a general class size of 12 or fewer students[1] in which the student receives instruction for the entire day is equivalent to the 5:1 student/teacher resource room instruction recommended for 45 minutes per day in the student’s IEP.  However, without further documentation, such as an affidavit from an appropriate professional, I cannot find on this record that a general class size of 12 or fewer students is similar to a 5:1 student/teacher 45 minute daily resource room where the remainder of the daily instruction is in a mainstream classroom.

Further, petitioner submits no documentation from the Windward School other than its brochure, and it is therefore unclear what, if any, special education services the student is receiving at the Windward School.  As an example, the district provided speech therapy as part of the student’s IEP; however, petitioner makes no assertion as to whether the student is receiving speech therapy at the Windward School.  Additionally, petitioner does not address whether the student is receiving the testing accommodations at the Windward School that are on his IEP.  Indeed, petitioner has not submitted evidence that the student is receiving any special education services at the Windward School.  Thus, on this record I cannot conclude that the Windward School offers a program similar to that recommended in the student’s IEP, for purposes of receiving transportation pursuant to Education Law §4402(4)(d) (seeApplication of a Student With a Disability, 33 Ed Dept Rep 712, Decision No. 13,209; Application of a Child with a Handicapping Condition, 28 id. 376, Decision No. 12,144).  Accordingly, the student is not entitled to transportation pursuant to that statute.

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

THE APPEAL IS DISMISSED.

END OF FILE.