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Decision No. 18,041

Appeal of A.L. and E.A.-L., on behalf of their child, from action of the New York City Department of Education regarding residency.

Decision No. 18, 041

(August 30, 2021)

The Law Offices of Neal H. Rosenberg, attorneys for petitioners, Lakshmi Singh Mergeche, Esq., of counsel

Georgia M. Pestana, Acting Corporation Counsel, attorneys for respondent, Nathaniel Luken, Esq., of counsel

ROSA., Commissioner.--Petitioners appeal the determination of the New York City Department of Education (“respondent”) that their child (“the student”) is not a district resident and thus, not entitled to attend the district’s schools.  The appeal must be dismissed. 

Given the disposition of this appeal, a detailed recitation of the facts is unnecessary.  On September 6, 2019, the student began attending the Grove School (“Grove”), a nonpublic school located in Connecticut.[1]  On February 11, 2020, respondent’s Committee on Special Education (“CSE”) convened and developed an individualized education plan for the student.  The record reflects that the student graduated from Grove on August 16, 2020.

In a prior written notice[2] dated February 16, 2021, respondent’s special education evaluation placement program officer (“program officer”) concluded that the student was not entitled to attend its schools because the student had not been a district resident “as of October 18, 2019.”  The program officer based his determination on information contained in two evaluations that petitioners provided during the February 2020 CSE meeting: a report dated August 2, 2019 indicating that the student’s father works in New York City and that “he would only see [the student] on weekends,” and a report dated October 25, 2019 suggesting that the student resided with his parents in Saratoga Springs, New York.  Consequently, the letter indicated, the student would “not be allowed to attend during the 2020-21 school year” and was “excluded from the [district’s schools] effective October 18, 2019.”  This appeal ensued. 

Petitioners assert that the student is a district resident.  Petitioners further assert that a retroactive determination of non-residency is “procedurally inappropriate,” and that respondent failed to provide petitioners the opportunity to submit additional information concerning the student’s right to attend school in the district prior to his exclusion.  Petitioners also maintain that the matter is moot since the student graduated in August 2020.  Petitioners seek a determination that the student was a district resident entitled to attend respondent’s schools at all relevant times. 

Respondent maintains that its residency determination was reasonable and supported by the evidence before it.  Respondent further asserts that the matter is not moot because the student’s “residency during [the time period from 2019-2020 and 2020-2021] is essential to [a] determination as to whether the DOE was obligated to provide the [s]tudent with a free appropriate public education.” 

The appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts that no longer exists due to the passage of time or a change in circumstances (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]).  Where the Commissioner can no longer award a petitioner meaningful relief on his or her claims, no live controversy remains and the appeal must be dismissed (Appeal of R.B., 57 Ed Dept Rep, Decision No. 17,394; Appeal of N.C., 40 id. 445, Decision No. 14,522).

The record reflects that the student graduated from Grove on August 16, 2020.  As a result, there is no current dispute over the student’s residency, and the appeal must be dismissed (Appeal of Walsberg, 57 Ed Dept Rep, Decision No. 17,332; Appeal of S.P., 56 id., Decision No. 16,951; Appeal of L.B. and T.B., 55 id., Decision No. 16,832).  To the extent that there is a remaining dispute over tuition, I do not find that this presents a live controversy (Appeal of X.W., 59 Ed Dept Rep, Decision No. 17,760; Appeal of S.T.V., 57 id., Decision No. 17,371; Appeal of M.S. and M.R.F., 57 id., Decision No. 17,347).

Although the appeal must be dismissed as moot, I am compelled to make two observations concerning the manner in which respondent determined the student’s residency.  First, respondent’s argument that 8 NYCRR 100.2 (y) (4) permits it to retroactively “correct prior residency determinations” is without merit.  That provision indicates that a district may make a residency determination “[a]t any time during the school year and notwithstanding any prior determination to the contrary ....”  This merely permits a district to make a residency determination at any time without being bound by a previous determination; it does not authorize districts to make determinations with retroactive effect (see generally Appeal of the Bd. Of Educ. of the East Ramapo Cent. Sch. Dist., 58 Ed Dept Rep, Decision No. 17,456 [in health reimbursement appeal under Education Law § 912, board of education did not prove non-residency based on evidence several years removed in time]).

Second, the record reflects that respondent’s determination did not comply with section 100.2 (y) of the Commissioner’s regulations.  That section requires that, prior to making a determination, the board of education or its designee must provide the child’s parent, the person in parental relation to the child, or the child, as appropriate, with the opportunity to submit information concerning the child’s right to attend school in the district (8 NYCRR 100.2 [y] [6]).  It also requires that the board or its designee give such person written notice of its determination that the child is not a district resident, including the basis for the determination, the date that the child will be excluded from school, and a statement regarding the right to appeal the determination to the Commissioner (8 NYCRR 100.2 [y] [6] [i]-[iv]; Appeal of Burgess, 57 Ed Dept Rep, Decision No. 17,178; Appeal of Clark, 46 id. 143, Decision No. 15,468).  Although respondent maintains that petitioners were afforded an opportunity to provide information regarding the student’s residency during the February 11, 2020 CSE meeting, there is no evidence in the record to support this argument.  Moreover, the purpose of a CSE meeting is to develop a recommendation as to “appropriate special education programs and services to be provided to the student with a disability” (8 NYCRR 200.4 [d]).  Required members include the student’s teacher, a school psychologist, a district representative, and “an individual who can interpret the instructional implications of evaluation results” (8 NYCRR 200.3 [a] [1]).  As such, a CSE meeting would be an inappropriate setting to discuss a student’s residency.[3]  I admonish respondent to ensure that its residency determinations comply with 8 NYCRR 100.2 (y).

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




[1] Grove 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).


[2] 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]).


[3] Similarly, a prior written notice required under the Individuals with Disabilities Education Act (IDEA) to notify families of a change to a student’s special education program and services is an inappropriate vehicle to communicate a residency determination.