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Decision No. 18,047

Appeal of R.A. and D.A., on behalf of their niece, from action of the New York City Department of Education regarding residency.

Decision No. 18,047

September 13, 2021

Brain Injury Rights Group, attorneys for petitioner, Peter G. Albert, Esq., of counsel

James E. Johnson, Corporation Counsel, attorney for respondent, Nathaniel R. Luken, Esq., of counsel

ROSA., Commissioner.--Petitioners appeal the determination of the New York City Department of Education (“respondent”) that their niece[1] (the “student”) is not a district resident.  The appeal must be dismissed.

In 2019, petitioners and the student resided in The Bahamas.  After the student’s school was destroyed by a hurricane, petitioners and the student moved to New York City.  Petitioners signed a sublease for an apartment located in Manhattan for three months, from January 6, 2020 until April 6, 2020. 

On January 3, 2020 respondent’s Committee on Special Education (“CSE”) convened and developed an individualized education plan (“IEP”) for the student that recommended placement in a special class in a public school.  Petitioners rejected this placement and enrolled the student at a nonpublic school, the International Institute of the Brain (“iBrain”), for the remainder of the 2019-2020 school year.[2]

In March 2020, petitioners and the student returned to The Bahamas; they explain that they did so “[b]ecause of COVID-19.”

On June 9, 2020, respondent’s CSE, which included a school psychologist and petitioner R.A. (“the student’s aunt”), met to develop an IEP for the student for the 2020-2021 school year.  The CSE again recommended placement in a public school.  Petitioner and the student were physically present in The Bahamas at the time of the meeting.

On November 12, 2020, the school psychologist emailed petitioner regarding her residency.  In a reply sent the same day, petitioner confirmed that she and the student resided in The Bahamas and had not “decided whether or not [they were] coming back to New York.”

By prior written notice[3] dated January 4, 2021, respondent determined that the student was not a district resident and, therefore, “would not be allowed to attend during the 2020-21 school year.”  This appeal ensued.  Petitioners’ request for interim relief was granted on May 10, 2021.

Petitioners contend that the student is a district resident, asserting that they intend to return to New York City.  Petitioners seek a determination that the student is a district resident entitled to attend respondent’s schools without payment of tuition.  

Respondent argues that the appeal must be dismissed as untimely.  On the merits, respondent contends that the student is not entitled to attend respondent’s schools because petitioners have submitted insufficient evidence of their intent to remain in New York City.

The appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving notice of the determination or act (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of C.S., 48 id. 497, Decision No. 15,929).  When the record does not reveal when a petitioner received notice, the date of receipt is calculated as the date of the determination or act plus five days for mailing, excluding Sundays and holidays (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of K.W., 48 id. 451, Decision No. 15,912).

Respondent’s prior written notice informing petitioner of its residency determination is dated January 4, 2021.  According to respondent, it sent this notice via certified mail on January 21, 2021.  Respondent further indicates that it emailed the notice to petitioners, with whom it had previously communicated by email, on January 4, 2021.  Petitioners do not contest respondent’s assertions or indicate when they received the determination.  However, even assuming the calculation most favorable to petitioners—January 21, 2021 plus five days for mailing—petitioner’s service of the petition on April 27, 2020 is approximately two months late.

In the petition, petitioners assert that “COVID-19 prevented [them] from being able to prepare these papers and to obtain a new lease.”  I do not find that this constitutes good cause for the delay.  Petitioners are represented by an attorney and have not explained what difficulties they encountered in preparing the petition.  Additionally, petitioners’ perceived need to obtain a lease agreement does not constitute good cause; their argument that they were “temporar[il]y absen[t]” from New York City necessarily implies that they were not physically present in the district at the time of respondent’s determination (see, e.g., Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827).[4]

Appeal of G.K. (60 Ed Dept Rep, Decision No. 17,908), cited by petitioners, is distinguishable.  In that appeal, the Commissioner excused a seven-day delay based on the difficulty of obtaining paperwork in spring 2020 due to the onset of the COVID-19 pandemic.  Specifically, the determination underlying that appeal was made on February 27, 2020; the Governor issued an Executive Order directing all school buildings within New York State to physically close on March 18, 2020; and petitioner served the petition on April 10, 2020, seven days after the 30-day deadline.  Here, by contrast, the COVID-19 pandemic was ongoing for approximately ten months by the time respondent made its January 4, 2021 determination.  Additionally, petitioners’ delay—60 days—was far more substantial.[5]  Thus, Appeal of G.K. (60 Ed Dept Rep, Decision No. 17,908) is not analogous to the instant appeal.

Although the appeal must be dismissed, the process followed by respondent here was deficient for substantially the same reasons as in Appeal of A.L. (61 Ed Dept Rep, Decision No. 18,041).[6]  Respondent is again admonished to review its procedures for student residency determinations.

While petitioners have not submitted any evidence reflecting their physical presence within respondent’s district, they retain the right to reapply for admission, on the student’s behalf, if and when they submit sufficient proof thereof.

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] The record reflects that petitioners, the student’s aunt and uncle, are the student’s legal guardians.

 

[2] iBrain is not approved as a school with which school districts may contract to instruct students with disabilities (see 8 NYCRR 200.1 [d], 200.7).

 

[3] Under federal law, “[w]ritten prior notice to the parents of [a] child” with a disability must be provided whenever a school district “(A) proposes to initiate or change; or (B) refuses to initiate or change, the identification, evaluation, or educational placement of [a] child, or the provision of a free appropriate public education to [such] child” (20 USC § 1415 [b] [3]; 34 CFR 300.503 [a]).

 

[4] Petitioners indicate in the petition that their lease “begins [on] March 26, 2021 and they intend to return by the end of April”; in an affidavit submitted with their reply, petitioner R.A. indicates that she and the student “were finally able to return to NYC in April 2021.”

 

[5] I further note that an alternative method of service of process during the State of Emergency (former subsection 8 NYCRR 275.8 [f]) would have permitted petitioners to serve the appeal without having to physically serve a copy of the petition on respondent. 

 

[6] Respondent’s determination here partially complied with the requirements of 8 NYCRR 100.2 (y) (6) by providing notice to petitioners of their right to appeal to the Commissioner and stating the specific basis for its determination.