In the Matter of Cooke Center for Learning and Development v. Mills

• Decision Date: 16 June 2005
• Docket Number: 96450.
• Citation: 2005 NY Slip Op 05144,797 N.Y.S.2d 173,19 A.D.3d 834
• Parties: In the Matter of COOKE CENTER FOR LEARNING AND DEVELOPMENT, Appellant, v. RICHARD P. MILLS, as Commissioner of Education of the State of New York, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

19 A.D.3d 834

797 N.Y.S.2d 173

2005 NY Slip Op 05144

In the Matter of COOKE CENTER FOR LEARNING AND DEVELOPMENT, Appellant, v. RICHARD P. MILLS, as Commissioner of Education of the State of New York, et al., Respondents.

96450.

Appellate Division of the Supreme Court of the State of New York, Third Department.

June 16, 2005.

Appeals (1) from a judgment of Supreme Court (Benza, J.), entered October 14, 2003 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent State Education Department denying petitioner's request of funding approval, and (2) from an order of said court, entered November 17, 2004 in Albany County, which denied petitioner's motion to renew.

KANE, J.

Petitioner is a not-for-profit corporation which provides special education services for children with developmental disabilities. Of petitioner's various programs, only its "partial inclusion program" is at issue. This program provides educational services to disabled children in separate classrooms within general education school buildings, with opportunities for the disabled children to interact with nondisabled peers during art, music and other instructional courses, as well as lunch and homeroom. Petitioner applied to respondent State Education Department for approval of its partial inclusion program. Such approval would place the program on a list of nonpublic schools that public school districts could utilize for special educational services not available from the district. Approved schools are eligible for state funding. The Department denied petitioner's application because its program provides for inclusion with nondisabled children during instructional time, contrary to its interpretation of the regulatory requirements.

Petitioner commenced this proceeding seeking, among other things, to annul the Department's determination. Supreme Court found that the determination had a rational basis and dismissed the petition. Petitioner then unsuccessfully moved for leave to renew, arguing that it had discovered new evidence that the Department had previously approved programs similar to petitioner's, contrary to affidavits submitted by respondents in response to the original petition. Petitioner appeals the judgment dismissing its petition and the order denying its motion to renew.

Initially, we reject respondents' argument that petitioner lacks standing. Petitioner applied for approval to receive public funds for educating students with disabilities under 8 NYCRR 200.7. The "immediate parties to an administrative proceeding are aggrieved persons who may seek judicial review" (Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d 406, 413 [1987]). In any event, petitioner met the traditional requirements for standing—it was injured by denial of the right to receive public funds and the regulation's zone of interest includes private schools seeking respondents' approval to receive such funds (see New York State Assn. of Nurse Anesthetists v Novello, 2 NY3d 207, 211 [2004]).

The Department's denial of petitioner's application was rational and consistent with state and federal law. The construction given statutes and regulations by the agency responsible for their administration should be upheld if not irrational or unreasonable; courts will annul determinations based on such constructions only if they were affected by an error of law, were arbitrary, capricious or an abuse of discretion (see Matter of Board of Educ. of City School Dist. of City of N.Y. v Mills, 250 AD2d 122, 125-126 [1998], lv denied 93 NY2d 803 [1999]). Petitioner contends that the Department's construction of its regulation was irrational and in violation of state and federal law.

The federal Individuals with Disabilities Education Act (see 20 USC § 1400 et seq. [hereinafter IDEA]) and its implementing regulations assure that states receiving federal funding provide each child with a disability a "free appropriate public education" in the "[l]east restrictive environment" for that child (20 USC § 1412 [a] [1], [5]; see 34 CFR 300.550-300.553). New York adopted legislation to comply with the federal requirements (see Education Law §§ 4401-4410-b). The regulation at issue here, enacted to implement that legislation, provides that private schools can be approved for reimbursement from public funds only if there is "sufficient evidence to establish that the proposed program will serve only those students who, because of the nature or severity of their disability, would require a separate facility" (8 NYCRR 200.7 [a] [2] [i] [a]).

The Department construed this regulation to mean that if a private school program provides for mainstreaming or inclusion of disabled students with their nondisabled peers during instructional time, that program is not entitled to funding under the regulation. This interpretation is not contrary to the IDEA. The federal law prefers a "public" education, where a "child is educated in the school that he or she would attend if nondisabled," if possible (34 CFR 300.552 [c]; see 20 USC § 1412 [a] [1]). To be sure, the IDEA requires that children with disabilities generally be educated with nondisabled children and that "removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily" (20 USC § 1412 [a] [5] [A]; see 34 CFR 300.550 [b]). While the federal law strives for the maximum...