Decision No. 14057

(December 23, 1998)

MILLS, Commissioner.--Petitioner appeals from respondents' respective determinations that each is not responsible for tuition payments for certain special education services provided to a student with a disability residing at petitioner's facility. Petitioner seeks tuition payments for certain portions of the 1994-95 and 1995-96 school years, as well as for the entire 1996-97 school year. Because both appeals involve identical facts and legal issues, they are consolidated for disposition. The appeals must be dismissed.

D.T. is an individual with disabilities. At the time of his birth, his mother, J.T., was unmarried. She subsequently married S.V., but they separated in 1986 and divorced in September 1989. The court awarded the mother and S.V. join custody of D.T. In April 1988, D.T. resided with his stepfather in the Corning City School District ("respondent Corning"). Respondent Corning's committee on special education ("CSE") initially placed D.T. with petitioner, a residential facility operating the Neil Hellman School, in April 1988, and the district paid petitioner tuition therefor. Respondent Corning continued D.T.'s residential placement from 1988 to June 1994 and made appropriate tuition payments. D.T.'s mother died in 1994 leaving S.V. sole legal custody of D.T. At the end of the 1993-94 school year, S.V. moved out of respondent Corning's school district. By letter dated February 27, 1995, respondent Corning advised petitioner that it would no longer be responsible for making tuition payments for D.T., as his step-father no longer resided in the Corning City School District.

During the 1994-95 school year, S.V. claimed to reside in the Prattsburgh Central School district ("respondent Prattsburgh"). However, Prattsburgh contested S.V.'s residency in its district and made no tuition payments for D.T., who continued to receive services at petitioner's institution. Thereafter, respondent Prattsburgh accepted S.V.'s assertion that he resided in the district and began to pay tuition for D.T. for the 1995-96 school year. On January 3, 1996 respondent Prattsburgh stopped making such tuition payments, based on its determination that S.V. did not, in fact, reside in its school district. In January 1996, respondent Prattsburgh's superintendent of school notified S.V. in writing that he questioned whether S.V. was a resident of Prattsburgh and, for that reason, no further tuition payments would be made. After providing S.V. an opportunity pursuant to 8 NYCRR "100.2(y), to present information regarding his residency, Prattsburgh's superintendent notified S.V. by letters dated April 23 and May 1, 1996 that he had determined S.V. was not a resident of the Prattsburgh Central School District and, therefore, the district was not responsible for D.T.'s tuition.

During the summer of 1996, S.V. again relocated. Petitioner asserts that he moved to Kanona, New York in the Bath Central School District ("respondent Bath"), where he remained until he was incarcerated in Steuben County. By letter dated September 16, 1996, petitioner provided respondent Bath with a statement from an individual purporting to be S.V.'s landlord in the Bath school district. Respondent Bath also obtained a questionnaire completed by S.V. while at Steuben County jail. By letter dated October 9, 1996, respondent Bath notified S.V. that it had determined S.V. was not a resident of the Bath Central School District. On November 9, 1996, respondent Bath mailed a copy of its October 9, 1996 letter to petitioner's attorney.

Petitioner seeks a determination that, based upon S.V.'s respective residences, respondents Corning, Prattsburgh and Bath are each responsible for some portion of tuition reimbursement for special education services provided D.T. during the 1994-95, 1995-96 and 1996-97 school years. I note that D.T. turned 21 years old on May 10, 1997 and is no longer receiving special education services pursuant to Article 89 of the Education Law. Therefore, the relief sought is limited to the years set forth above.

Respondents raise several procedural objections. Respondents Corning and Prattsburgh assert that the appeal is untimely as against them. Respondent Bath claims petitioner lacks standing to appeal its determination that S.V. is not a resident of its school district. All respondents deny responsibility for tuition reimbursement to petitioner for the months and years in question.

Respondents Corning and Prattsburgh are correct in asserting that, as to them, the appeal is untimely. Section 275.16 of the Regulations of the Commissioner of Education require that an appeal be brought within thirty days of the action or determination complained of. The record indicates that respondent Corning notified petitioner of its refusal to continue to pay D.T.'s tuition by letter dated February 27, 1995. Respondent Prattsburgh notified petitioner of its determination that S.V. was not a resident of its school district, and that it was terminating tuition reimbursement, by letter dated April 23, 1996. Petitioner was notified of respondent Prattsburgh's final determination by letter dated May 1, 1996. Petitioner commenced this appeal by service upon respondents Corning and Prattsburgh on September 23, 1996 – more than nineteen and four months, respectively, from respondents' determinations. Petitioner claims that, prior to that time, it was attempting to resolve the tuition reimbursement issue with the assistance of the State Education Department ("SED") and, further, that it was not until August 22, 1996 that SED informed petitioner of the appeal process. However, it is well settled that ignorance of the appeal process does not constitute just cause for the delay in initiating an appeal pursuant to Education "310 (Appeal of Kline, 35 Ed Dept Rep 91; Appeal of Pierce, 33 id. 651). Therefore, the appeal is untimely as to respondents Corning and Prattsburgh and must be dismissed as against them. In view of the dismissal of the appeal for untimeliness as to those respondents, I will not address respondent Prattsburgh's other procedural claims.

Respondent Bath asserts that petitioner does not have standing to appeal its October 9, 1996 determination. Respondent contends that, because the issue is one of residency, only S.V. has standing to maintain an appeal from respondent Bath's determination. To maintain an appeal pursuant to Education Law "310, a party must be aggrieved in the sense of having suffered personal damage or impairment to civil, personal or property rights. Petitioner seeks tuition reimbursement for special education services it provided D.T. Respondent Bath has denied petitioner's request based on its determination that S.V. is not a resident of its school district. Although respondent's residency determination pertains to S.V., petitioner is directly affected by the determination as it provides the basis for respondent Bath's refusal to reimburse petitioner tuition for services provided. Under those circumstances, petitioner is aggrieved by respondent Bath's October 9 determination and has standing to challenge it in this appeal.

Upon review of the record before me, the appeal must be dismissed. 8 NYCRR "100.2(y) sets forth the procedures a board of education must follow in determining the residency of a student. Pursuant to that section, a board is required to afford a student or a person in parental relationship the opportunity to be heard on the issue of residence. Where the proper procedures have been followed, a district's determination as to the residence of a child will not be set aside unless it is shown to be arbitrary or unreasonable (Appeal of O'Brien, 35 Ed Dept Rep 49; Matter of Wadas, 21 id. 577; Matter of Buglione, 14 id. 220).

In this instance, not only did respondent Bath provide S.V. an opportunity to present information regarding his residence, but petitioner also assisted S.V., as evidenced by its correspondence to respondent indicating that petitioner was attempting to have S.V. provide respondent Bath with additional information. In this case, respondent Bath's superintendent of schools permitted petitioner to submit documentation prior to making a residency determination with respect to S.V. In addition, the superintendent discussed the matter with petitioner on two occasions prior to making his determination. Therefore, the record shows that both S.V. and petitioner were afforded the opportunity to present information regarding S.V.'s residency prior to the superintendent's final determination.

According to petitioner, as of July 1, 1996, S.V. had moved to Kanona, New York, which is in respondent Bath school district. However, the record contains nothing from S.V. establishing that he moved into the Bath Central School District or established legal residency there. Petitioner submits an unsworn statement from an individual purporting to be S.V.'s landlord, Kim Strang. The unsworn statement does not include a copy of any rental agreement or lease, but merely states that S.V. had been living in an upstairs room at Strang's home in respondent's school district for three months until his arrest.

Along with the unsworn statement submitted by petitioner, respondent Bath considered a completed questionnaire submitted by S.V. and concluded that the record before it did not establish S.V.'s residency in its district. Respondent Bath noted that, in his responses, S.V. did not indicate that he resided in the Bath school district. Respondent Bath concluded that D.T., therefore, was a non-resident and notified S.V. of his right to appeal under Education Law "310. S.V. has not appealed that determination.

Respondent Bath's answer indicates that its superintendent personally delivered the questionnaire to the correctional facility in which S.V. was incarcerated, and gave instructions regarding its completion. On the questionnaire which S.V. completed and returned while he was in the correctional facility, S.V. indicated no present address for D.T., nor a previous residence address. In regard to S.V.'s present residence, the answer given was N/A, with no previous residence address provided.

Respondent Bath's attorney also wrote to petitioner stating that respondent Bath was attempting to determine D.T.'s legal residence, and requested "any and all information which you may have which would provide information regarding the legal residence of [D.T.]." By letter dated September 18, 1996, petitioner responded indicating that it was "attempting to reach [S.V.], the guardian for [D.T.], and have him provide information for you concerning his residence in the Bath Central School District." However, no further information was ever provided.

Therefore, after reviewing the dearth of information respondent Bath had before it, I cannot conclude that its decision that S.V. was not a resident of its school was arbitrary, capricious or unreasonable. Consequently, based on the record before me, I will not substitute my judgment for that of respondent Bath and find no basis on which to conclude that respondent Bath is responsible for any tuition payments to petitioner.

For all the foregoing reasons, the appeal must be dismissed.

THE APPEAL IS DISMISSED.

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