Decision No. 17,117
Appeal of R.H., on behalf of her son H.H., from action of the Board of Education of the Williamsville Central School District regarding reimbursement for transportation.
Decision No. 17,117
(June 30, 2017)
Hodgson Russ LLP, attorneys for respondent, Andrew J. Freedman, Esq., of counsel
Berlin, Acting Commissioner.--Petitioner appeals the refusal of the Board of Education of the Williamsville Central School District (“respondent”) to reimburse her for the transportation expenses she incurred transporting H.H. (“the student”) to and from respondent’s school from February 28, 2016, until the “end of the school year in June.” The appeal must be dismissed.
During the 2015-2016 school year, the student lived within, and attended school in, respondent’s district. Petitioner states that she and her family became homeless after they were:
[F]orced out of a residence that [they] rented ... due to inhumane, unsanitary, indecent and unsafe conditions throughout the property.
She further states that she and her family “were able to double up with a family member,” who lives outside the geographical confines of respondent’s district.
In a memorandum to the district attached to the petition, petitioner states that she was contacted by respondent’s school principal (“principal”) after another staff member reported that mail sent to petitioner’s address was returned to the district. Petitioner alleges that the principal was “informed of [their] living situation” and “why [they] had to move” and “the impact of [them] no longer living within the district.” She states that the principal asked her to include some of these details in an email so that he could “request for [the student] to remain in school....” Attached to the petition is a copy of an email to the principal dated March 28, 2016 in which petitioner asserts that the family “was forced to move out of the district due to deplorable conditions” and has moved in with family at a Buffalo address. Petitioner states that she was informed by the principal that the student “could remain at the school for the remainder of the school year, but that he would have to find his own transportation.”
Respondent acknowledges that on or about April 28, 2016, petitioner contacted the district and stated that her family was moving to another district. According to an affirmation from respondent’s counsel, which is based on the facts recited in a February 13, 2017 letter from an assistant superintendent to petitioner denying her request, “[p]etitioner never stated that she was homeless, or that she was going to lose her housing in the [d]istrict.” The affirmation further asserts that, in accordance with district policy, the student was permitted to complete the 2015-2016 school year in respondent’s district. The affirmation further states that petitioner was informed that she would have to provide the necessary transportation for the student and that “[p]etitioner did not object.”
According to respondent, on November 18, 2016, petitioner first informed respondent that she and her “family became homeless on March 1, 2016, and desired reimbursement for the cost of transporting” the student from the out-of-district residence to school within the district. By letter dated February 13, 2017, respondent denied petitioner’s request. This appeal ensued.
Petitioner contends that the student was homeless within the meaning of the McKinney Vento Homeless Assistance Act (42 U.S.C. §11434a) from February 28, 2016, when the family was forced to leave their rental property because of a “plethora of unsatisfactory and deplorable conditions” until September 30, 2016, when they purchased a home outside the district. The petition indicates that during this time, the student was “sharing the housing of other persons due to loss of housing, economic hardship or a similar reason” and lists an out-of-district address as the shared housing location. Petitioner requests “travel reimbursement during the time” that the student attended school in respondent’s district and “was entitled to such services, but was wrongfully denied.”
Respondent argues that the appeal should be dismissed as untimely. Respondent further argues that petitioner has failed to state a claim upon which relief can be granted and that she has failed to meet her burden of proof. Respondent asserts that it acted in good faith and pursuant to its powers and duties at all times relevant to this appeal.
I will first address two procedural matters. The appeal must be dismissed for lack of subject matter jurisdiction. The only relief sought by petitioner in this appeal is a request for reimbursement of past transportation costs. However, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Appeal of C.M., 54 Ed Dept Rep, Decision No. 16,641; Application of Kolbmann, 48 id. 370, Decision No. 15,888; Appeal of S.B., 48 id. 332, Decision No. 15,875) and the appeal must be dismissed on that basis.
Moreover, an appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879). The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694). When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872).
The record is devoid of any evidence indicating when petitioner received respondent’s letter dated February 13, 2017, denying petitioner’s request for reimbursement. When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing excluding Sundays and holidays (Appeal of S.G.K., 56 Ed Dept Rep, Decision No. 17,043; Appeal of K.W., 48 id. 451, Decision No. 15,912). Accordingly, the timeline for petitioner to commence an appeal began on February 18, 2017. Together with the petition in this case, respondent’s homeless liaison submitted an affidavit of service indicating that she accepted personal service of the petition on March 21, 2017. Because service occurred more than 30 days after petitioner’s receipt of respondent’s February 13, 2017 letter, and petitioner has not provided any excuse for the delay, the appeal must also be dismissed as untimely.
Even if petitioner’s transportation claim were not dismissed on procedural grounds, it would be dismissed on the merits.
At all times relevant to this appeal, Education Law §3209(1)(a) defined “homeless child” as:
(1)a child or youth who lacks a fixed, regular, and adequate nighttime residence, including a child or youth who is:
(i)sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason;
(ii)living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations;
(iii)abandoned in hospitals;
(iv)awaiting foster care placement; or
(v)a migratory child ... who qualifies as homeless under any of the provisions of clauses
(i) through (iv) of this subparagraph or subparagraph two of this paragraph; or
(2)a child or youth who has a primary nighttime location that is:
(i)a supervised publicly or privately operated shelter designed to provide temporary living accommodations ...; or
(ii)a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human ....
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).
On the record before me, I cannot find that the student met the definition of a homeless child under either State or federal law during the time period in question. In the petition, petitioner alleges that the student is sharing the housing of others due to loss of housing, economic hardship or a similar reason. However, petitioner merely states that her family was “able to double up with a family member” and does not assert that the home is inadequate or provide any evidence relating to the adequacy of the family member’s home (see Appeal of C.M., 54 Ed Dept Rep, Decision No. 16,641; Appeal of S.B., 52 id., Decision No. 16,487). Therefore, petitioner has failed to meet her burden of proving that her son lacked a fixed, regular and adequate night-time residence during the time period at issue.
In light of this deposition, I need not address the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
END OF FILE
 The form petition indicates that the student was homeless from February 29, 2016, until September 30, 2016. However, in supporting documentation provided by petitioner, she states that she is seeking reimbursement for transportation expenses incurred from February 28, 2016 until the end of the 2015-2016 school year. For consistency, I will refer to the initial date of alleged homelessness as February 28, 2016.
 Effective December 10, 2016, children or youth awaiting foster care placement are no longer included in the definition of “homeless children and youths” under the McKinney-Vento Homeless Assistance Act, as amended by the Every Student Succeeds Act (42 U.S.C. §11434a). Effective April 20, 2017, children or youth awaiting foster care placement are no longer included in the definition of “homeless child” in Education Law §3209(1)(a), as amended by Part C of Chapter 56 of the Laws of 2017. However, those changes are not relevant to a determination in this appeal.