93-023

Petitioner appeals from the decision of an impartial hearing officer which held that during the 1992-93 school year respondent was not obligated under Federal or State law to provide petitioner's child with transportation from school to his home at a time of day which would allow the child to participate in extracurricular activities. Petitioner seeks an order requiring respondent to reimburse her for payments petitioner made for the child's transportation from school to home, and directing respondent to provide suitable transportation prospectively. The appeal must be sustained.

Petitioner's child, who is 17 years old, was born with congenital cervical scoliosis, a cleft palate and severe facial asymmetry. The child has undergone surgery to remediate the effects of his cleft palate and facial asymmetry. The child has a profound bilateral sensori-neural hearing loss. The child's speech is reported to be unintelligible, and he communicates through the use of American Sign Language. The child's classification as a deaf child is not disputed.

Since 1983, the child has attended the New York School for the Deaf (NYSD), a private, State supported school (See Article 85 of the Education Law) which is located in White Plains, New York. During the 1992-93 school year, the child was in the ninth grade. The child's individualized education program (IEP) provided that the child was to receive special education in all subjects, except remedial reading and physical education. The child's participation in physical education was subject to medical restrictions upon his participation in certain activities such as contact sports. The IEP further provided that the child was to receive the related services of speech/language therapy and counseling, as well as daily transportation to and from the New York School for the Deaf.

Until the middle of the 1990-91 school year, respondent provided late bus service, i.e. transportation later in the afternoon for children who remained after school for activities and interscholastic athletics. In an affidavit annexed to respondent's answer, the assistant superintendent of schools asserts that petitioner's child continued to receive late bus service for the remainder of the 1990-91 school year and the 1991-92 school year, although that service was not provided to other children and such transportation was not specified in the child's IEPs. At the hearing in this proceeding, respondent's director of transportation testified that late bus service had been provided to the child because it did not require any additional expenditure of funds, but that such service would require an additional expenditure during the 1992-93 school year. The school district residents did not approve the district's budget for the 1992-93 school year. Accordingly, respondent's authority to levy taxes and make expenditures was limited to the sums necessary for ordinary contingent expenses (See Section 2023 of the Education Law). Without voter approval, a board of education may not appropriate funds for transportation other than that authorized by Section 3635 of the Education Law (Application of the Board of Education of the Cleveland Hill Union Free School District, 16 Ed. Dept. Rep. 124). Consequently, respondent was not authorized to provide late bus service generally to the children of the district, but the provision of appropriate transportation services to children with disabilities is an ordinary contingent expense which is not subject to voter approval (Kling v. Nyquist, 65 Misc. 2d 198).

During the 1992-93 school year, respondent offered to provide the child with transportation from the NYSD at the end of instruction in the NYSD, but prior to extracurricular activities at the NYSD. The child's transportation required approximately one hour, and precluded the child's arrival at respondent's high school in time to participate in extracurricular activities in that school. During the 1992-93 school year, the child was transported by respondent from home to the NYSD. He remained at the NYSD for extracurricular activities in the afternoons, and returned home on a train at petitioner's expense.

Respondent's committee on special education (CSE) met on October 6, 1992, to consider petitioner's request that the child's IEP be amended to provide that the child receive late bus service. The minutes of the CSE meeting reveal that the CSE deferred making a recommendation for late bus service until certain unspecified facts were made available to the CSE. Thereafter, the CSE's chairperson reviewed the child's records at the NYSD and discussed the child's academic and social progress with the child's teachers. On December 8, 1992, the CSE declined to recommend that late bus service be provided to the child, on the ground that the child did not require such service in order to benefit from his instructional program. The CSE agreed to consider petitioner's alternative request that the child be provided with an appropriate program in respondent's schools. The record does not reveal whether the CSE has taken any further action on petitioner's alternative request.

On February 3, 1993, petitioner requested that an impartial hearing be held to review the CSE's refusal to recommend late bus service. A hearing was held on March 3, 1993, at which petitioner testified that the child had participated on the NYSD's track team for three years and was also participating in swimming, gymnastics and the drama club at the NYSD. Each of these activities occurred after school. In a decision dated April 21, 1993, the hearing officer held that respondent was not required to provide the requested transportation, because the hearing officer found that such transportation was not required in order for the child to benefit from his instructional program at the NYSD. The hearing officer further held that he lacked jurisdiction to consider petitioner's claim that the denial of late bus service violated Section 504 of the Rehabilitation Act of 1973 (29 USC 794) because petitioner had previously filed a Section 504 complaint with the Office of Civil Rights which had not yet resolved petitioner's complaint.

Respondent asserts that petitioner failed to personally serve the petition in this appeal upon respondent in a timely manner. In her reply, petitioner concedes that initially the petition was erroneously served by mail upon the school district clerk and respondent's attorney (cf. 8 NYCRR 279.2 [b]; 275.8 [a]). However, her attorney has submitted an affirmation that upon being notified by the Office of Counsel of the defective service, he personally served the petition upon respondent on June 8, 1993. State regulation requires that a petition for review of a hearing officer's decision must be served within 40 days after receipt of the decision (8 NYCRR 279.2 [b]). Although the hearing officer's decision is dated April 21, 1993, or 48 days before service of the petition, respondent has not offered any proof of the date when petitioner received the hearing officer's decision. Absent proof of the date of petitioner's receipt of the hearing officer's decision, I find that respondent has failed to meet its burden of proving its affirmative defense (Application of a Child with a Handicapping Condition, Appeal No. 92-35).

Petitioner does not challenge the hearing officer's determination that he lacked jurisdiction to consider petitioner's claim under Section 504 of the Rehabilitation Act of 1973. Petitioner asserts that the hearing officer erred by applying an inappropriate standard in determining that the child was not entitled to receive transportation under the Individuals with Disabilities Education Act (20 USC 1400 et seq). The Federal statute requires that each child with a disability be provided with a free appropriate education, which the statute defines as special education and related services which are provided in conformity with a child's IEP (20 USC 1401 [a][18]). The statute defines related services to mean transportation and such developmental, corrective, and other supportive services as are necessary to assist a child to benefit from special education (20 USC 1401 [a][17]). Petitioner asserts that, instead of the criterion for a related service, i.e., whether the service is necessary for a child to benefit from special education, the hearing officer should have applied the criteria of Federal and State regulations requiring school districts to provide children with disabilities an equal opportunity to participate in extracurricular activities (34 CFR 300.306 [a]; 8 NYCRR 200.2 [b][1]).

Respondent asserts that its CSE correctly determined not to recommend late bus service because the child did not require the opportunity to participate in extracurricular activities in order to progress academically or to benefit from his instructional program. Respondent further asserts that it has not denied the child with an equal opportunity to participate in extracurricular activities, because no child in the district who opts to participate in such activities is receiving late bus service.

The contrasting positions of the parties illustrate the fact that the child's entitlement, if any, to the requested transportation service must be determined by considering both the adequacy of the child's program and the extent to which he has been afforded equitable access to extracurricular activities. With regard to the child's program, the issue is whether respondent has demonstrated that it has offered a program which addresses the child's academic, social and management needs as identified in his IEP. In this instance, the child's IEP for the 1992-93 school year reported that the child's self-concept was only fair, and his adjustment to school and the community was described as improving. The IEP further stated that the child needed positive role models to emulate. At the hearing in this proceeding, petitioner testified that the child was proud of his accomplishments in extracurricular activities. The child's counselor at the NYSD testified that the child has had a problem feeling good about himself and relating to his peers. The counselor further testified that the child's track coach at the NYSD had reported that the child's self-confidence and behavior had improved as he achieved success in track and that he had begun to emulate children with positive behavior.

In the child's most recent psychological evaluation, which was completed in October, 1990, the child was described as having a poor sense of self, with feelings of vulnerability and being unwanted. The evaluator reported that the child felt he was rejected by others because of his physical abnormalities, and recommended that the child receive counseling to build his self esteem. Although the IEP provided that the child was to receive counseling, the child's annual goals for counseling relate to improving his self-awareness and decision making ability. It appears from the record that the NYSD intended to recommend that counseling be discontinued because of the child's resistance to counseling. At the hearing, respondent offered the testimony of two special education teachers who briefly observed the child in NYSD, but who were not familiar with the child or the provisions of his IEP. Both teachers testified that the child appeared to interact well with adults and peers.

In the absence of evidence about how the child's social development needs were being met during the 1992-93 school year, I find that respondent has not met the burden of demonstrating the appropriateness of the child's program. Since petitioner did offer evidence of the positive effect that participation in extracurricular activities had upon the child's social development and there is no dispute that the child cannot be returned to respondent's high school in time to participate in activities there, I further find that respondent has failed to provide suitable transportation services (Section 4402 [4] [a] of the Education Law) by not providing late bus service to the child.

Petitioner's request for late bus service also raises the issue of respondent's obligation to provide meaningful access to extracurricular activities under Federal and State regulations (34 CFR 306 [a]; 8 NYCRR 200.2 [b] [1]). The Federal regulation requires a board of education to:

". . . take steps to provide nonacademic and extracurricular services and activities in such manner as is necessary to afford children with disabilities an equal opportunity for participation in those services and activities" (34 CFR 300.306 [a]).

The State regulation provides, in material part, that:

"Each board of education or board of trustees shall adopt a written policy that:

(1) establishes administrative practices and procedures to ensure that students with disabilities residing in the district have the opportunity to participate in school district programs, to the maximum extent appropriate to the needs of the student including extracurricular programs and activities, which are available to all other students enrolled in the public schools of the district;" (8 NYCRR 200.2 [b][1]).

With regard to the Federal regulation, the U.S. Department of Education has opined that a school district is not obligated to ensure that a disabled child participates in all extracurricular activities which the parent or the child chooses, but may exercise discretion in determining for which extracurricular activities it will provide transportation and that a school district may use Federal funds to provide transportation to extracurricular activities not listed on a child's IEP (EHLR 211:468).

Respondent has some discretion in determining what transportation services it will provide in order to comply with the requirements of 34 CFR 306(a) and in providing transporation services generally (Mitchell C. v. Bd. of Ed. City School Dist. of N.Y., 67 AD 2d 284). However, I find respondent has abused its discretion by refusing to provide late bus service to the child for any activity during the 1992-93 school year. The record reveals the social and emotional benefits to the child in participating in extracurricular activities. The testimony of the child's counselor at the NYSD about the benefits of such participation in unrebuted. The counselor also testified about the difficulty deaf children have socializing with those with whom they cannot communicate. Although respondent asserts that it had offered the child the same opportunity that other children have to participate in extracurricular activities, there is a significant difference between this child's situation and that of other children. Respondent had placed the child in a school located in White Plains, New York. At the end of the extracurricular activities in his school, the child was not in a position to either walk home or avail himself of local alternatives such as car pools to obtain transportation to his home. Consequently, the child did not, in fact, have meaningful access to extracurricular activities (Application of a Child with a Handicapping Condition, Appeal No. 92-11).

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the decision of the hearing officer is annulled, and;

IT IS FURTHER ORDERED that respondent shall reimburse petitioner for her reasonable expenditures in providing the child with transportation between the New York School for the Deaf and home during the 1992-93 school year, upon petitioner's submission of proof of such expenditures to respondent.