Appeal of P.W., on behalf of her children, from action of the Board of Education of the South Colonie Central School District regarding residency and homelessness.

Decision No. 18,291

(June 29, 2023)

Tabner, Ryan & Keniry, LLP, attorneys for respondent, William F. Ryan, Esq., of counsel

ROSA., Commissioner.--Petitioner challenges the determination of the Board of Education of the South Colonie Central School District (“respondent”) that her children (the “students”) are not eligible to attend the district’s schools tuition-free or to receive transportation pursuant to the McKinney-Vento Homeless Assistance Act (42 USC §§ 11431, et seq., “McKinney-Vento”).  The appeal must be dismissed.

Although the record in this appeal is sparse, the students attended respondent’s schools as of fall 2022.  In a determination dated November 23, 2022, respondent determined that the students were not homeless and, therefore, no longer entitled to attend respondent’s schools.  This appeal ensued.

Petitioner contends that the students are homeless because she and the students share housing with other people due to loss of housing and economic hardship.  Petitioner requests a determination that the students are homeless and entitled to attend respondent’s schools and receive transportation without payment of tuition.

Respondent argues that the petition must be dismissed as untimely.  On the merits, respondent contends that petitioner has failed to meet her burden of proving that the students’ residence is not fixed, regular, or adequate. 

The appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving notice of the determination or act (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of C.S., 48 id. 497, Decision No. 15,929).  When the record does not reveal when a petitioner received notice, the date of receipt is calculated as the date of the determination or act plus five days for mailing, excluding Sundays and holidays (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of K.W., 48 id. 451, Decision No. 15,912).

Respondent determined that the students were not homeless in a letter dated November 23, 2022.  Affording five days for mailing, petitioner had until December 30, 2022 to commence the instant appeal.  Petitioner did not commence the instant appeal until March 6, 2023 and presents no explanation for the delay (see 8 NYCRR 275.16).  Therefore, the appeal must be dismissed (Appeal of R.A., 61 Ed Dept Rep, Decision No. 18,309; Appeal of B.P., 61 id., Decision No. 18,207; Appeal of J.D., 58 id., Decision No. 17,459).

While the appeal must be dismissed as untimely, I note that respondent’s determination appears to have been based on the students’ infrequent presence on district transportation or at an out-of-district residence.  While these observations would be relevant to the students’ residency, it is unclear how they informed respondent’s determination that the students lacked a “fixed, regular, and adequate nighttime residence” (Education Law § 3209 [1] [a]).  I admonish respondent to ensure that all homeless determinations are based upon the adequacy and permanency of students’ living circumstances, which may necessitate a home visit (see, e.g., Appeals of C.M., 62 Ed Dept Rep, Decision No. 18,163).

THE APPEAL IS DISMISSED.

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