Decision No. 13,971

(July 15, 1998)

MILLS, Commissioner.--Petitioner appeals the refusal of the City School District of the City of Binghamton ("respondent") to allow him to change his medical coverage from individual coverage to family coverage. The appeal must be dismissed.

Prior to July 1995, petitioner was employed by respondent as a teacher and was enrolled in respondent's medical plan. In July 1995, petitioner retired. At the time of his retirement, it is unclear whether petitioner was involved in a divorce proceeding that was still in progress, or whether that proceeding had concluded. It is clear, however, that when petitioner retired he was enrolled in respondent's medical plan for individual coverage only. Petitioner's disability retirement was approved on or about July 20, 1995, by the Teacher's Retirement System, retroactive to July 1, 1995.

After his retirement, it appears that petitioner remarried. By letter dated March 21, 1996, petitioner asked respondent's Assistant Superintendent for Business, Dr. Joseph Zapach, to allow him to change his enrollment from individual coverage to family coverage. By letter dated March 26, 1996, Dr. Zapach denied that request. Petitioner then contacted certain teacher's union representatives and officials, and on July 22, 1996, wrote again to Dr. Zapach seeking a further explanation. He wrote again on August 22, 1996. He then wrote another letter on January 28, 1997, to several district officers and individual members of the board of education. On February 28, 1997, Superintendent James Lee wrote to petitioner and again denied his request.

Thereafter, it appears that petitioner retained counsel and that his attorneys engaged in certain correspondence and contacts with respondent's counsel. Respondent refused to change its position, and this appeal was commenced July 17, 1997.

Petitioner claims that shortly before the effective date of his resignation, he was told by Carolyn Price, respondent's Assistant Superintendent for Administration, that he would be able to change medical coverage after his retirement, and that relying upon this information he elected to continue individual coverage at the time of his retirement. Petitioner claims that both Federal and State law require that respondent allow him to change from individual to family coverage (citing 42 U.S.C. "300bb et seq. [more correctly, 42 U.S.C. "300bb - 1 et seq.]; L. 1994, c. 729; L. 1996, c. 83). Petitioner also states that he has offered to pay the entire difference in cost between individual and family coverage, so that respondent would not incur any additional expense. Petitioner likens this appeal to an "action in equity," denies that Education Law "3813 has any application, and states that this "action" is commenced within two years from the date petitioner's claim was rejected, as provided in respondent's medical plan.

Respondent denies that any conversation respecting medical coverage occurred between petitioner and its Assistant Superintendent for Administration, and provides the affidavit of Ms. Price, who states that she was on vacation outside the country from June 26, 1995, to July 28, 1995, and categorically denies ever telling petitioner that he would have the option of changing coverages after retirement. Respondent asserts twenty affirmative defenses, both substantive and procedural. Among them, respondent claims that its medical plan is self-funded, is not insurance, and is therefore not covered by the Federal and State statutes cited by petitioner. Respondent claims that, by its own terms, its medical plan does not allow changes after retirement, and that in fact petitioner's benefits have not been diminished in any way. Respondent further asserts that the appeal is untimely commenced, that petitioner has failed to file a notice of claim pursuant to Education Law "3813, that the Commissioner lacks jurisdiction to adjudicate a claim for money damages, and that petitioner has no standing, in that his spouse is the person who has been denied benefits.

The appeal must be dismissed as clearly untimely. Pursuant to 8 NYCRR "275.16, an appeal to the Commissioner "must be instituted within 30 days from the making of the decision or the performance of the act complained of." The Commissioner may, in his sole discretion, excuse a failure to commence an appeal within the time specified for good cause shown, set forth in the petition.

This appeal challenges respondent's action of March 26, 1996, which denied his request to change coverage. By the terms of the regulation, this appeal should have been instituted within 30 days thereafter. The record before me indicates that after the denial, petitioner engaged in various correspondence with union representatives and officials, but apparently had no further contact with respondent until his letter of July 22, 1996.

The petition sets forth no justifiable reason for failing to commence this appeal within the time required by the regulation. It has been said on numerous occasions that absent unusual circumstances, ignorance of the appeal process and its time limitations is not a sufficient basis to excuse a delay (Appeal of Holzer, et al., 37 Ed Dept Rep 549; Appeal of A.B., 36 id. 155; Appeal of Kline, 35 id. 91). The petition merely recites that ". . . petitioner repeatedly sought an explanation for BCSD's change in position and requested reconsideration . . ." However, numerous Commissioner's decisions have held that requests for reconsideration do not extend the time in which to commence an appeal (Appeal of Blaske, 37 Ed Dept Rep 277; Appeal of Ytuarte, 36 id. 238; Appeal of Goodman, 35 id. 93; Appeal of Regan, 34 id. 74; Appeal of Yip, 25 id. 296; Appeal of Ritz, 25 id. 240). I note that, even if this were not the rule, respondent's further denial of petitioner's request on February 28, 1997, would have required an appeal to be brought within 30 days of that date.

An appeal to the Commissioner of Education pursuant to Education Law "310 is limited in scope, and is not intended to be the equivalent of an action at law or a suit in equity in a court of general jurisdiction. In view of this disposition, I will not discuss the other contentions of the parties.

THE APPEAL IS DISMISSED.

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