Appeal of T.V. and J.V., on behalf of their child, from action of the Board of Education of the Lawrence Union Free School District regarding transportation.

Decision No. 18,265

(April 17, 2023)

The AGS Firm, PC, attorneys for petitioner, Eric Small, Esq., of counsel

Guercio & Guercio, LLP, attorneys for respondent, Barbara P. Aloe, Esq., of counsel

ROSA., Commissioner.--Petitioners challenge a determination of the committee on special education (“CSE”) for the Board of Education of the Lawrence Union Free School District (“respondent”) denying their request to transport their child (the “student”) to a nonpublic school.  The appeal must be sustained.

Prior to the 2022-2023 school year, the CSE developed an individualized education program (“IEP”) for the student.  By letter dated August 22, 2022, petitioners, through counsel, advised respondent that they intended to unilaterally place the student in a nonpublic school.  They enrolled the student in a nonpublic school located 33 miles from their home.  Petitioners thereafter requested transportation for the student to the nonpublic school pursuant to Education Law § 4402 (4) (d).  The CSE thereafter met with petitioners to discuss this request.  By letter dated October 21, 2022, the CSE determined that transportation would not be provided because the program at the nonpublic school was dissimilar to the program recommended by the CSE.  This appeal ensued.

Petitioners assert that the program provided by the nonpublic school is similar to the recommended program in the student’s IEP because the program at the nonpublic school is designed to meet the goals stated in the student’s IEP.  In support of this argument, petitioners submit the student’s IEP and an affidavit from the student’s teacher at the nonpublic school.  For relief, petitioners seek a determination that the student is entitled to transportation to the nonpublic school pursuant to Education Law § 4402 (4) (d). 

Respondent argues that the appeal must be dismissed for improper service.  On the merits, respondent contends that the nonpublic school does not provide the student with dedicated 1:1 reading instruction for 30 minutes per day, speech/language therapy, occupational therapy, or physical therapy as recommended by the CSE.  Respondent also contends that the nonpublic school environment is comprised of “all special education students” and provides no “opportunit[ies] to interact with typically developing peers in the least restrictive environment.”  

With respect to respondent’s procedural defense, section 275.8 (a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR 275.8 [a]; Appeal of B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939).

Given the parties’ divergent allegations regarding service, I decline to dismiss the appeal for improper service.  Although petitioner did not personally serve the district clerk, a secretary in the district clerk’s office advised the process server that the “district clerk [was] not in and that [she] could leave the papers on [the district clerk’s] desk.”  I find that this could reasonably be interpreted as a representation that the secretary was accepting service of the papers on the district’s behalf (Appeal of S.V., 61 Ed Dept Rep, Decision No. 18,097; see Appeal of M.P. and T.P., 60 id., Decision No. 17,937; Appeal of R.S., 58 id., Decision No. 17,626).  Thus, I find that respondent has not met its burden of proving the defense of improper service of the petition.

Turning to the merits, Education Law § 4402 (4) (d) provides that a student identified by a local CSE as a student with a disability is entitled to transportation to and from a nonpublic located within 50 miles of the student’s home if she or he attends a nonpublic school “for the purpose of receiving services or programs similar to special educational programs recommended” by the CSE.  This language was added by Chapter 996 of the Laws of 1981.  According to the legislative history, the City School District for the City of New York (“NYC DOE”) historically offered door-to-door transportation to all students with disabilities between their homes and the schools they legally attended.  On May 6, 1981, an attorney wrote to the State Education Department (SED) inquiring as to whether NYC DOE was obligated to transport several hundred students with disabilities attending nonpublic schools in New York City.  SED’s Counsel & Deputy Commissioner for Legal Affairs (“SED Counsel”) opined that

[h]andicapped pupils[1] attending private schools for the handicapped pursuant to a private placement may qualify for transportation in the same manner as non-handicapped pupils residing the same distance from the school they attend, under Education Law § 3635, but are not entitled to special transportation services pursuant to sections 4401 and 4402.[2]

This determination led to the introduction of legislation that would authorize transportation for these New York City students.  It required boards of education to provide “suitable transportation” to parentally placed students with disabilities so long as the nonpublic school offered a program “similar” to that offered by the committee on special education (L 1981, ch 996).  This legislation pertained only to the 1981-1982 school year.

The “prime sponsor” of the legislation, Assemblymember Edward Griffith, opined that “...viewing this legislation within a broader context, the cost of transporting [a] few children to nonpublic facilities [will] prove to be less than the cost of educating these children at public institutions.”  Several other organizations, including advocacy organizations for nonpublic schools, supported the legislation.

SED, the Division of the Budget (DOB), and the New York State School Boards Association (NYSSBA) opposed the bill.  DOB summarized the principal argument against the bill as follows:

...this bill seriously undermines the intent of Federal and State [statutes, which are] unequivocal that a child’s [IEP] detail the need for [transportation] services.  [If a] parent places [a] child in a private school ... which is not the recommended placement of the school district, then such child is not eligible for a free and appropriate public education at public expense.  The parent places such child, then, at his [or her] own expense.  There is no valid reason, therefore, that free transportation services be provided to such child.

SED and NYSSBA made similar points in their objections.  As relevant here, NYSSBA complained that the Legislature failed to define the word “similar.” NYSSBA’s Executive Director wrote,

We would question who is to judge this similarity and according to what criteria.  Apparently this could be a purely subjective judgment by the handicapped child’s parents.  This is unacceptable to us.

The bill passed unanimously (L 1981, ch 996).  Education Law § 4402 (4) (d) was renewed annually until 1992, at which time it was made permanent.  At that time, the Legislature replaced the phrase “suitable transportation” with the 50-mile limitation (L 1992, ch 646).

This legislative history reveals that the Legislature elected to provide a benefit outside of, and in addition to, the framework set forth within the Individuals with Disabilities Act (IDEA) and Article 89 of the Education Law.  As such, the Legislature eschewed the “appropriate” standard by which such services are assessed under IDEA in favor of a “similarity” analysis (see Gagliardo v Arlington Cent. Sch. Dist., 489 F3d 105, 112 [2d Cir 2007]).  Since this term was not defined, it must be interpreted in accordance with its “usual and commonly understood meaning” (Hunters for Deer, Inc. v. Town of Smithtown, 37 NY3d 1214, 1215 [2022]).  Merriam-Webster defines “similar,” in relevant part, as “having characteristics in common” or “alike in substance or essentials” (Merriam-Webster.com Dictionary, similar, [https://www.merriam-webster.com/dictionary/similar]).  This definition supports a finding that “similar” is a less demanding standard than “appropriate.”  This is reinforced by the fact that Education Law § 4402 (4) (d) does not contemplate the right to challenge the denial of such transportation in an impartial due process hearing.

Here, the student’s IEP recommends a 1:1 aide throughout the school day.  The IEP also recommends that the student receive the following special education programs and related services: special classes for all core subjects, including 1:1 reading for 30 minutes per day; individual speech/language therapy in the therapy room (twice a week for 30 minutes) and classroom (once a week for 30 minutes); individual physical therapy (twice a week for 45 minutes); and individual occupational therapy in the therapy room (twice a week for 30 minutes) and classroom (once a week for 30 minutes). 

In her affidavit, the student’s teacher from the nonpublic school explains that the nonpublic school is a “small, highly-individualized private day school for students with learning differences such as dyslexia, nonverbal learning disabilities ... and executive functioning difficulties.”  During the 2022-2023 school year the student has attended “a self-contained special education classroom with four students and one special education teacher.”  She further explains that she meets with the student individually for 45 minutes per day.  The teacher explains that the school uses the Orton-Gillingham methodology “to teach [the student] phonics rules.”

With respect to related services, the teacher asserts that the nonpublic school “programmatically addresses the same areas of need that would be addressed in [the student’s] 1:1 related service periods” within the classroom.  The teacher explains that the school’s “programmatic means of instruction” addresses the same goals that are stated in the student’s IEP.  For example, the teacher explains that the student’s physical capability, life skills, and motor skills are addressed at the nonpublic school through its physical education curriculum.  Thus, according to the teacher, the nonpublic school has made a pedagogical choice to incorporate students’ needs into their educational program; i.e., to avoid having “to remove [students] from the classroom for 1:1 related services.”

On this record, I find that petitioners have demonstrated that the services and programs provided by the nonpublic school’s program, while distinguishable, are “similar” to the services and programs recommended by respondent’s CSE.  Respondent’s principal objection is that the school does not offer pull-out related services as proscribed by the CSE.  However, the nonpublic school acknowledges these needs but has chosen to address them within the context of the classroom.  While this differs from the model utilized by the district, I find that petitioner has sufficiently demonstrated that the nonpublic school program is “alike in substance or essentials” as it addresses the student’s related service needs within a special class.  

Respondent cites Appeal of Students with Disabilities (52 Ed Dept Rep, Decision No. 16,490) for the proposition that a nonpublic school that does not offer all the related services offered by a district’s CSE cannot be considered “similar” within the meaning of Education Law § 4402 (4) (d).  However, in that appeal there was no evidence that the nonpublic school provided any special education services whatsoever (accord Appeal of a Student with a Disability, 33 Ed Dept Rep 712, Decision No. 13,209).

Respondent also argues that the nonpublic school is not “similar” to the CSE’s recommendation because it is more restrictive.  SED Counsel raised this exact point in opposition to Chapter 996 of the Laws of 1981, observing that “[p]rivate placements by parents contrary to the recommendation of the [CSE] are almost universally in a more restrictive environment ....”  That view, however, was rejected by the Legislature.

I have reviewed respondent’s remaining arguments—including the lack of a 1:1 aide and certain assistive technology at the nonpublic school—but do not find that they render the nonpublic school program dissimilar in substance or essentials to that offered by the CSE.  To be sure, these differences would be relevant to an analysis of whether the CSE’s recommendations were reasonably calculated to provide a free and appropriate public education (FAPE).  The Legislature, however, declined to incorporate the FAPE standard into Education Law § 4402 (4) (d).[3]

In sum, respondent’s arguments are attributable to the peculiar nature of the transportation entitlement in Education Law § 4402 (4) (d).[4]  The concerns SED raised in response to this provision—including inconsistency with State and federal law and the use of public resources to support programs that may not offer a FAPE—remain relevant.  However, I have no authority to disregard an act of the Legislature (see e.g. Appeal of Kiley, 61 Ed Dept Rep, Decision No. 18,125).  Such relief may only be obtained through a statutory amendment or judicial challenge.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent provide the student with transportation to the nonpublic school that she legally attends.

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