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Decision No. 17,670

Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Ossining Union Free School District regarding residency.

Decision No. 17,670

(July 1, 2019)

Ingerman, Smith, LLP, attorneys for respondent, Emily J. Lucas, Esq., of counsel

ELIA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Ossining Union Free School District (“respondent”) that her child (the “student”) is not eligible to attend the district’s schools tuition-free as a resident.  The appeal must be dismissed.

The record indicates that petitioner enrolled the student in the district in May 2013.  At that time, petitioner represented that the student lived with her at her residence within the district’s geographical boundaries.  The student attended school in respondent’s district for the next several school years.

According to the record, respondent’s Committee on Special Education (“CSE”) convened on August 28, 2018 to conduct the student’s annual review and develop an individualized education plan (“IEP”) for the 2018-2019 school year.  In an IEP dated August 28, 2018, respondent’s CSE recommended that the student attend his “Home Public School District” and that his recommended school was “Home Instruction.”

Although not entirely clear from the record, it appears that the CSE subsequently recommended placement in a residential program for the 2018-2019 school year at a location outside the geographical boundaries of respondent’s district.  It further appears from the record that, in the fall of 2018, the student began to reside with his grandmother outside of the district.

In a letter dated November 6, 2018, respondent’s superintendent advised petitioner that, in order for the student to be considered a district resident, she needed to provide evidence that the student was returning to reside with her in the district by November 21, 2018.  Absent such proof, the superintendent indicated that the student would be “removed from enrollment” as of November 26, 2018.  This appeal ensued.  Petitioner’s request for interim relief was granted in part on December 7, 2018.[1]

Petitioner admits that the student is currently residing outside of respondent’s district and will do so for an “uncertain length of time ....”  Petitioner further indicates that she supports the student, exercises control over him, and has not relinquished parental control over the student.  Petitioner seeks a determination that the student is a resident of respondent’s school district.

Respondent contends that the appeal must be dismissed because petitioner failed to properly serve the petition.  Respondent also asserts that the student does not reside in its district, as evidenced by petitioner’s admission that the student resides with his grandmother.

The appeal must be dismissed for improper service.  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).

Here, petitioner’s affidavit of service indicates that personal service was made to “Brenda Knowles” who is identified as a “Jr. Admin Asst” employed by respondent.  Respondent indicates that Ms. Knowles is not authorized to accept service on behalf of respondent because she is not the district clerk and does not work in the office of the superintendent.  Petitioner did not submit a reply, and there is no evidence in the record that petitioner effectuated personal service as required by 8 NYCRR §275.8.  Accordingly, service upon respondent was not properly made and the appeal must be dismissed (Appeals of L.A. and V.A., 57 Ed Dept Rep, Decision No. 17,424; Application of a Student with a Disability, 57 id., Decision No. 17,391).

Although the appeal must be dismissed on procedural grounds, I note that petitioner’s concerns appear to relate to transportation of the student to and from the school he attends.  For the benefit of the parties, I note that a school district is only obligated to transport a student between his or her residence in the school district and the school which he or she legally attends (Education Law §3635[1][a]).  Although Education Law §3635(1)(e) authorizes districts to provide transportation to and from before- and/or after-school school child care programs, the Commissioner has determined that this only applies to programs located within the school district (see Appeal of J.M.-E., 52 Ed Dept Rep, Decision No. 16,394; Appeal of Wells, 49 id. 443, Decision No. 16,076).[2]

To the extent petitioner contends that the student may be entitled to transportation as a related service, any entitlement to such transportation would arise from the student’s right to special education and related services under the Individuals with Disabilities Education Act and Article 89 of the Education Law, and I lack jurisdiction over such claims in an appeal brought pursuant to Education Law §310 (Appeal of a Student with a Disability, 56 Ed Dept Rep, Decision No. 16,956; Appeal of R.J.K. and L.K., 50 id., Decision No. 16,232).  Therefore, any such concerns would have to be presented to the CSE in the first instance.[3]

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

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] Petitioner’s request for interim relief was granted to the extent that respondent was directed to admit the student to its schools; however, the interim order noted that respondent was only responsible to provide transportation from petitioner’s residence within respondent’s district to the school the student legally attends (see Education Law §3635[1][a]).

 

[2] Moreover, that provision does not apply here because it only applies to children attending kindergarten through grade eight, and the record reflects that the student was in grade 12 at the time of the events giving rise to this appeal.

 

[3] I note in this respect that the August 28, 2018 IEP indicates that the student does not require special transportation.