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Decision No. 17,230

Appeal of a STUDENT WITH A DISABILITY and HIS SIBLINGS, by their parent, from action of the Board of Education of the Wheatland-Chili Central School District regarding residency and transportation.

Decision No. 17,230

(October 27, 2017)

Harris Beach PLLC, Esq., attorneys for respondent, Laura M. Purcell, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Wheatland-Chili Central 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.

The record reflects that prior to the 2012-2013 school year, petitioner and her children resided within respondent’s district.  In or around June 2012, petitioner informed respondent’s superintendent that she was losing her home due to economic hardship and that she would be sharing the home of another located within the City School District of the City of Rochester (“out-of-district address”).  Respondent deemed petitioner and her children to be homeless under McKinney-Vento and allowed the students to continue to attend respondent’s schools.

In a letter dated August 13, 2013, the superintendent asserted that the district had fulfilled its obligations under McKinney-Vento, and the students “must now be registered for the 2013-2014 school year in the school district where [petitioner] ha[d] been residing for the past year.”   

On August 27, 2013, petitioner notified an administrative assistant employed by the district that she would be relocating to a residence within the district (“in-district address”).  The administrative assistant told petitioner that, to substantiate her claim of residency, the owner of the in-district address would have to execute an owner’s affidavit indicating that petitioner and the students resided at the in-district address.  Although petitioner indicated that she would have the affidavit executed “right away,” petitioner failed to do so despite multiple requests by the district.

By letter dated November 22, 2013, the superintendent informed petitioner of her determination that the students’ residence outside the district was considered fixed, regular and adequate, and that the students would no longer be permitted to attend the district’s schools effective December 23, 2013.  This appeal ensued.  Petitioner’s request for interim relief was denied on January 31, 2014.

Petitioner claims that she and the students reside at the out-of-district address and are sharing the housing of another person due to a loss of housing, economic hardship or a similar reason. 

Respondent maintains that the appeal is untimely.  Respondent further asserts that petitioner has failed to meet her burden of demonstrating a clear legal right to the relief requested and that she and her children are not homeless within the meaning of McKinney-Vento. 

The appeal must be dismissed as untimely.  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).  In this case, respondent’s final determination was dated November 22, 2013.  Affording the usual five days for mailing, excluding Sundays and holidays, petitioner’s appeal therefore needed to be served by December 30, 2013.  Petitioner did not commence her appeal until January 6, 2014.  Petitioner does not provide good cause, or any cause, for such delay in her petition.  Consequently, the appeal must be dismissed as untimely (Appeal of C.M., 57 Ed Dept Rep, Decision No. 17,131; Appeal of K.B., 56 id., Decision No. 16,937).

Given this disposition, I need not address the parties’ remaining contentions.