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Decision No. 17,219

Appeal of K.A., on behalf of her children S.A., A.A., and I.A., from action of the Board of Education of the Hauppauge Union Free School District regarding residency and transportation.

Decision No. 17,219

(October 17, 2017)

Harris Beach, PLLC, attorneys for respondent, Susan E. Fine, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Hauppauge Union Free School District (“respondent”) that her children (“the students”) are not homeless within the meaning of the McKinney-Vento Homeless Assistance Act (42 USC §11431 et seq., “McKinney-Vento”) and, therefore, are not entitled to attend the district’s schools or receive transportation.  The appeal must be dismissed.

This appeal concerns three students.  The students were first enrolled in the district as homeless students under McKinney-Vento on or about February 6, 2013.  At that time, the family was temporarily housed in a shelter within the district.  Thereafter, the district’s homeless liaison was informed by the shelter that the family had been discharged on April 16, 2013.  About a month later, the homeless liaison was able to reach petitioner, who would not disclose where the family was staying.  One of the students, I.A., informed a school counselor that the family had moved in with his grandmother outside of the district.  The homeless liaison spoke to petitioner on September 16, 2013.  At that time, petitioner confirmed that the family was living in the grandmother’s home outside of the district.  The next day, the district was contacted by a representative from the New York State Technical and Educational Assistance Center for Homeless Children (“NYS TEACHS”), who claimed that the students were homeless because they were sharing a dwelling with their grandmother. The district’s residency officer then contacted the family’s caseworker at the Administration for Children’s Services (“ACS”), who stated that petitioner and the students had returned to the grandmother’s out-of-district address that had been listed as their permanent residence prior to the family becoming homeless. 

Petitioner filed a request for transportation with the district on September 26.  By letter of the same date, the district’s residency officer denied this request, explaining her initial determination that the family was no longer homeless under McKinney-Vento.  A representative of NYS TEACHS contacted the residency officer on September 27, stating that petitioner intended to appeal the initial determination of the district.  The district, therefore, continued to transport the students to the district’s schools.  The residency officer attempted to schedule a conference with petitioner regarding this issue, but petitioner did not avail herself of this opportunity. 

By letter dated October 3, the residency officer informed petitioner of her final determination that the students were not homeless under McKinney-Vento and would be excluded from the district’s schools as of November 4.  The letter informed petitioner of her right to appeal, included copies of the appeal forms, and indicated that the district’s homeless liaison was available to assist petitioner with the appeals process.  This appeal ensued and petitioner’s request for interim relief was denied. 

I must first address a procedural issue.  Respondent asserts that the petition must be dismissed as untimely.  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 Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877).  The record indicates that on December 2, 2013, the district’s residency officer received the petition by mail.  The petition was received by my Office of Counsel on December 5.  By letter dated December 10, my Office of Counsel returned the petition to petitioner stating that there was no indication that the petition had been served on respondent pursuant to the Commissioner’s regulations, and that the petition must be personally served upon the district.  The letter provided further information regarding the rules governing appeals made pursuant to Education Law §310.  Petitioner then personally served the petition upon respondent on December 30. 

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).  Petitioner does not deny that her petition is untimely.  The district’s final determination from which petitioner appeals was made on October 3, and, as noted above, petitioner did not commence this appeal by personal service until December 30.  Petitioner asks that I accept her “late [p]etition” because she is not represented by counsel and she had difficulty working with the principal at the students’ school, as well as other district staff members.  Except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of Stieffenhofer, 48 Ed Dept Rep 231, Decision No. 15,846; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821).  Here, even petitioner’s initial petition that was served by mail in violation of the Commissioner’s regulations, was late.  I note that the October 3 determination letter from the district contained information regarding the appeals process, copies of the appeal forms, and contact information for the district’s homeless liaison.  Further, petitioner does not deny that her petition is late and does not assert good cause in this case to excuse the delay.  Therefore, the appeal must be dismissed as untimely (see e.g. Appeals of L.B., 50 Ed Dept Rep, Decision No. 16,129; Appeal of J.S., 49 id. 411, Decision No. 16,066).

Although the appeal must be dismissed as untimely, I note that petitioner has the right to reapply for admission on behalf of the students at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.