0305bra3

THE STATE EDUCATION DEPARTMENT / THE UNIVERSITY OF THE STATE OF NEW YORK / ALBANY, NY 12234

TO:	The Honorable the Members of the Board of Regents
FROM:	Kathy A. Ahearn
COMMITTEE:	Full Board
TITLE OF ITEM:	Appeals pursuant to Education Law §310 involving homeless children
DATE OF SUBMISSION:	February 18, 2005
PROPOSED HANDLING:	Approval
RATIONALE FOR ITEM:	To ensure compliance with Federal requirements
STRATEGIC GOAL:	4
AUTHORIZATION(S):

SUMMARY:

Attached is a proposed amendment of Parts 275 and 276 and section 100.2(x) of the Regulations of the Commissioner of Education. Supporting materials are available upon request from the Secretary to the Board of Regents.

The proposed amendment modifies the procedures concerning appeals involving homeless children that are brought pursuant to Education Law section 310, to conform the Commissioner's Regulations to the requirements of the Federal McKinney-Vento Homeless Education Assistance Act (42 U.S.C. sections 11431 et seq.), as amended by the Federal No Child Left Behind Act of 2001 (NCLB) [Pub.L. 107-110].

The proposed amendment was adopted by emergency action at the January Regents meeting, effective January 18, 2005. A Notice of Emergency Adoption and Proposed Rule Making was published in the State Register on February 2, 2005. It is anticipated that the proposed amendment will be presented to the Board of Regents for adoption as a permanent rule at the May 16-17, 2005 Regents meeting, effective June 9, 2005.

The January emergency adoption is effective for 90 days and will expire before the amended regulations can be presented for permanent adoption at the May Regents meeting. A second emergency adoption is therefore necessary to ensure that the amended regulations remain continuously in effect until the effective date of their permanent adoption. A Statement of Facts and Circumstances Which Necessitates Emergency Action is attached.

RECOMMENDATION: It is recommended that the Board of Regents take the following action:

VOTED: That Parts 275 and 276 and paragraph (7) of subdivision (x) of section 100.2 of the Regulations of the Commissioner of Education be amended as submitted, effective April 12, 2005, as an emergency action upon a finding by the Board of Regents that such action is necessary for the preservation of the general welfare to ensure that the rule adopted at the January 10-11, 2005 meeting of the Board of Regents remains continuously in effect until the effective date of its adoption as a permanent rule, and thereby ensure the rights of homeless individuals consistent with Federal statutes and ensure compliance with requirements for receipt of Federal funds.

Attachment

PROPOSED AMENDMENT OF PARTS 275 AND 276 AND SECTION 100.2(x) OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION PURSUANT TO EDUCATION LAW SECTIONS 101, 207, 215, 305, 310, 311, 3202, 3209 AND 3713, RELATING TO APPEALS INVOLVING HOMELESS CHILDREN

STATEMENT OF FACTS AND CIRCUMSTANCES WHICH NECESSITATE EMERGENCY ACTION

The proposed amendment is necessary to conform the Commissioner's Regulations to the Federal McKinney-Vento Homeless Education Assistance Act (42 U.S.C. sections 11431 et seq.), as amended by the Federal No Child Left Behind Act of 2001 (NCLB) [Pub.L. 107-110]. The State is required to comply with the requirements of the McKinney-Vento Act and the NCLB as a condition to its receipt of Federal funds. The proposed amendment modifies the procedures for appeals to the Commissioner of Education pursuant to Education Law section 310, that concern a homeless child's or youth's access to a free, appropriate public education pursuant to 8 NYCRR section 100.2(x).

The proposed amendment was adopted at the January 10-11, 2005 Regents meeting, as an emergency measure effective January 18, 2005, to conform the Commissioner's Regulations regarding the procedures for appeals involving homeless children that are brought pursuant to Education Law section 310 to the Federal McKinney-Vento Homeless Education Assistance Act (42 U.S.C. sections 11431 et seq.), as amended by the Federal No Child Left Behind Act of 2001 (NCLB) [Pub.L. 107-110], and thereby ensure the rights of homeless individuals consistent with Federal statutes and ensure compliance with requirements for receipt of Federal funds.

A Notice of Emergency Adoption and Proposed Rule Making was published in the State Register on February 2, 2005.

It is anticipated that the proposed rule will be presented to the Board of Regents for adoption as a permanent rule at their May 16-17, 2005 meeting, which is the first scheduled meeting after expiration of the 45-day public comment period mandated by the State Administrative Procedure Act. Pursuant to SAPA section 202(5), the permanent adoption cannot become effective until after its publication in the State Register on June 8, 2005. However, the January emergency adoption will expire on April 17, 2005, 90 days after its filing with the Department of State on January 18, 2005. A second emergency adoption is therefore necessary to ensure that the rule remains continuously in effect until the effective date of its adoption as a permanent rule.

AMENDMENT TO THE REGULATIONS OF THE COMMISSIONER OF EDUCATION

Pursuant to Education Law sections 101, 207, 215, 305, 310, 311, 3202, 3209 and 3713

1. Part 275 of the Regulations of the Commissioner of Education is amended, effective April 12, 2005, as follows:

Part 275

Parties and Pleadings

§275.1 . . .

§275.2 . . .

§275.3 Pleadings.

(a) . . .

(b) . . .

(d) Form of pleadings for appeals regarding the education of homeless children and youth. Notwithstanding the provisions of subdivision (c) of this section, in an appeal regarding a homeless child's or youth's access to a free, appropriate public education pursuant to section 100.2(x) of this Title, if the petitioner is the parent or guardian of a homeless child or youth or unaccompanied youth as defined in section 100.2(x), and if such petitioner submits a form petition prescribed by the commissioner, the pleadings shall be legible but shall not be required to be submitted in typewritten form.

§ 275.4 Names of parties or attorneys to be endorsed on all papers.

(a) All pleadings and papers submitted to the commissioner in connection with an appeal must be endorsed with the name, post office address and telephone number of the party submitting the same, or, if a party is represented by counsel, with the name, post office address and telephone number of his attorney.

§ 275.5 Verification.

(a) All pleadings shall be verified. The petition shall be verified by the oath of at least one of the petitioners, except that when the appeal is taken by the trustee or the board of trustees or board of education of a school district, it shall be verified by any person who is familiar with the facts underlying the appeal, pursuant to a resolution of such board authorizing the commencement of such appeal on behalf of such trustees or board. An answer shall be verified by the oath of the respondent submitting such answer, except that when the respondent is a domestic corporation, the verification shall be made by an officer thereof. If the appeal is brought from the action of the trustee or board of trustees or board of education of a school district, verification of the answer shall be made by any person who is familiar with the facts underlying the appeal. If two or more respondents are united in interest, verification of the answer shall be made by at least one of them who is familiar with the facts. A reply shall be verified in the manner set forth for the verification of an answer.

(b) Notwithstanding the provisions of subdivision (a) of this section, in an appeal regarding a homeless child's or youth's access to a free, appropriate public education pursuant to section 100.2(x) of this Title, the parent or guardian of a homeless child or youth or unaccompanied youth as defined in section 100.2(x), in lieu of verifying his/her pleading(s) pursuant to subdivision (a) of this section, may include in each pleading a statement that is signed by such parent or guardian or unaccompanied youth and which indicates that based on his/her information and belief the information contained in the pleading is true and an acknowledgment that he/she is aware that, pursuant to Penal Law section 175.30, a person who knowingly offers a false instrument for filing to a public official or public servant is guilty of Offering a False Instrument for Filing in the 2nd Degree, a Class A Misdemeanor.

§275.6 . . .

§ 275.7 Oaths

(a) All oaths required by these rules may be taken before any person authorized to administer oaths within the State of New York. The statement of an attorney admitted to practice in the courts of this State and appearing in an appeal as attorney of record or of counsel to the attorney of record, when subscribed and affirmed by him to be true under the penalty of perjury, may be served or filed in the appeal in lieu of and with the same force and effect as an affidavit.

(b) Notwithstanding the provisions of subdivision (a) of this section, in an appeal regarding a homeless child's or youth's access to a free, appropriate public education pursuant to section 100.2(x) of this Title, the signed statement of a parent or guardian of a homeless child or youth or unaccompanied youth as defined in section 100.2(x), that the information contained in his/her petition or other pleading is true to the best of his/her knowledge and an acknowledgement that he/she is aware that, pursuant to Penal Law section 175.30, a person who knowingly offers a false instrument for filing to a public official or public servant is guilty of Offering a False Instrument for Filing in the 2nd Degree, a Class A Misdemeanor, may be served or filed in the appeal in lieu of and with the same force and effect as an affidavit.

§ 275.8 Service of pleadings and supporting papers.

(a) . . .

(b) . . .

(d) . . .

(e) Alternative service in appeals regarding the education of homeless children. Notwithstanding the provisions of subdivisions (a) and (b) of this section, service of pleadings and supporting papers in appeals regarding a homeless child's or youth's access to a free, appropriate public education pursuant to section 100.2(x) of this Title may be made upon a school district, school district employee and/or school district officer named as a party respondent by delivering a copy of the pleadings and supporting papers to the school district's local educational agency liaison for homeless children and youth. The local educational agency liaison for homeless children and youth shall either accept service of the pleadings and supporting papers on behalf of the named school district, school district employee and/or school district officer, or effect service by mail by mailing the petition, petitioner's affidavits, exhibits, and other supporting papers to the named school district employee, school district officer and/or a person in the office of the superintendent who has been designated by the board of education to accept service on behalf of the school district, and by mailing all subsequent pleadings and papers to the adverse party or, if the adverse party is represented by counsel, to his/her attorney. When the same attorney appears for two or more parties, only one copy need be served upon the attorney.

§ 275.9 Filing and fee.

(a) . . .

(b) Filing in an appeal regarding the education of a homeless child or youth. In an appeal regarding a homeless child's or youth's access to a free, appropriate public education pursuant to section 100.2(x) of this Title, within five days after the receipt and/or acceptance of service of any pleading or paper from petitioner, the local educational agency liaison for homeless children and youth, shall transmit the original, together with an affidavit of such local educational agency liaison proving that the he/she either accepted service of the pleading on behalf of the adverse party or served the pleading by mailing it to the adverse party, to the Office of Counsel, New York State Education Department, State Education Building, Albany, NY 12234. The affidavit of service shall be in the form set forth below and shall indicate the name and official character of the person upon whom service was made.

FORM FOR AFFIDAVIT OF ACCEPTANCE OF PERSONAL SERVICE BY LOCAL EDUCATIONAL LIAISON FOR HOMELESS CHILDREN AND YOUTH

STATE OF NEW YORK

COUNTY OF ______ss.:

_________, being duly sworn, deposes and says that he/she is the local educational agency liaison for homeless children and youth for the school district; that on the ____day of ____, 20____ he/she accepted service of the annexed ______ on behalf of ______.

________________________

(Signature)

Subscribed and sworn to before

me this ___________ day of ___________, 20 __.

_________________________

(Signature and title of officer)

FORM FOR AFFIDAVIT OF SERVICE BY MAIL BY LOCAL EDUCATIONAL AGENCY LIAISON

STATE OF NEW YORK

COUNTY OF ______ss.:

_________, being duly sworn, deposes and says that he/she is over the age of eighteen years and is the local educational agency liaison for homeless children and youth for the school district; that on the ____day of ____, 20 ____, deponent served the within ______upon ______in this action, at ______, the address designated by ______for that purpose, by depositing a true copy of the same by mail, enclosed in a post paid wrapper addressed to the named school district employee or officer or a person in the office of the superintendent who has been designated by the board of education to accept service on behalf of the school district, in___a post office ______official depository under the exclusive care and custody of the United States Post Office Department within the State of New York.

____________________

(Signature)

Subscribed and sworn to before me this day of ____, 20____

____________________

(Signature and title of officer)

(c) Filing fee. A fee of $20, payable to the State Education Department, shall accompany the filing of a petition in an appeal to the Commissioner of Education, except that there shall be no fee for the filing of a petition pursuant to Education Law, section 4404 (2). No fee shall be required in appeals brought before the commissioner pursuant to Education Law, section 310 that do not seek review of a determination of an impartial hearing officer but involve matters related to the provision of a free appropriate public education to a pupil with a handicapping condition or in appeals regarding a homeless child's or youth's access to a free, appropriate public education pursuant to section 100.2(x) of this Title . The requirement of a filing fee may be waived, at the discretion of the commissioner, upon application by a petitioner in the form of an affidavit by petitioner or petitioner's attorney. Such affidavit shall set forth the amount and sources of all income of petitioner, whether taxable or not; shall list all property held by petitioner, including real estate, personal property and bank accounts, together with the total value of each category; and shall state that the petitioner is unable to pay the fee necessary to initiate the appeal.

§275.10 . . .

§275.11 . . .

§275.12...

§ 275.13 Service of answer and supporting papers.

(a) . . .

(b) Alternative Service of answer and supporting papers in an appeal regarding a homeless child's or youth's access to a free, appropriate public education pursuant to section 100.2(x) of this Title. If petitioner so elects, respondent shall serve the answer upon the local educational agency liaison for homeless children and youth, together with all of respondent's affidavits, exhibits and other supporting papers, except a memorandum of law. In such case, the local educational agency liaison for homeless children and youth shall notify the petitioner of his/her receipt of the answer, together with all of respondent's affidavits, exhibits and other supporting papers by serving these documents upon petitioner at petitioner's last known address in the manner set forth in section 275.8(b) of this Title or, upon petitioner's request, by making copies of these documents available to petitioner without cost.

(c) The provisions of subdivision (a) of this section shall not apply to appeals before the commissioner pursuant to Education Law, section 310 that do not seek review of a determination of a impartial hearing but involve matters related to the provision of free appropriate public education to a pupil with a handicapping condition. In such appeals service of the answer and supporting papers shall be made in accordance with the provisions of section 279.5 of this Title.

§ 275.14 Reply.

(a) . . .

(b) Reply in an appeal regarding a homeless child's or youth's access to a free, appropriate public education pursuant to section 100.2(x) of this Title. The petitioner shall reply to each affirmative defense contained in an answer. The reply, together with any affidavits which shall be limited to support of such reply, shall be served in the manner set forth in either section 275.8(b) or (e) of this Title.

(c) The provisions of subdivisions (a) and (b) of this section shall not apply to appeals before the commissioner pursuant to Education Law, section 310 that do not seek review of a determination of a impartial hearing officer but involve matters related to the provision of free appropriate public education to a pupil with a handicapping condition. In such appeals, no pleading other than a petition and an answer will be accepted or considered by the commissioner, except a reply by the petitioner to any procedural defenses interposed by a respondent. Such reply shall be served and filed within three days after service of the answer. If the answer has been served by mail upon petitioner or his counsel, the date of mailing and the four days subsequent thereto shall be excluded in computing the three-day period.

§275.15 . . .

§275.16 . . .

§275.17 . . .

2. Part 276 of the Regulations of the Commissioner of Education is amended, effective April 12, 2005, as follows:

Part 276. RULES OF PRACTICE

§ 276.1 . . .

§ 276.2 . . .

§ 276.3 Extensions of time to answer or reply.

(a) No extension of time to answer the petition or to reply to an answer will be granted by the commissioner unless timely application is made therefor, upon notice to all parties. Such application shall be in writing, addressed to the office of counsel, must be postmarked not later than five days prior to the date on which the time to answer or reply will expire, and shall set forth in full the reasons for the request. The time to answer a pleading may not be extended solely by stipulation of the parties or their counsel.

(b) Notwithstanding the provisions of subdivision (a) of this section, in an appeal regarding a homeless child's or youth's access to a free, appropriate public education pursuant to section 100.2(x) of this Title, the petitioner may elect to provide notice of the application for an extension of time to reply to an answer to all parties by delivering the application to the local educational agency liaison for homeless children and youth. The local educational agency liaison for homeless children and youth shall mail the application to all adverse parties and the office of counsel. Such application shall be in writing and must be postmarked not later than five days prior to the date on which the time to reply will expire, and shall set forth in full the reasons for the request.

§ 276.4 Memoranda of law.

(a) . . .

(b) . . .

(c) Notwithstanding the provisions of subdivision (a) of this section, in an appeal regarding a homeless child's or youth's access to a free, appropriate public education pursuant to section 100.2(x) of this Title, memoranda of law may be served in the manner provided by either section 275.8(b) or (e) of this Title.

§ 276.5 Additional affidavits, exhibits and other supporting papers.

(a) The commissioner may permit or require the service and filing of affidavits, exhibits and other supporting papers, in addition to those served in accordance with sections 275.8, 275.13 and 275.14 of this Title, upon such terms and conditions as he may specify. Such affidavits, exhibits and other supporting papers may be served upon all other parties and filed with the office of counsel only with the prior permission of the commissioner, granted upon application of the party desiring to submit such document. The affidavits, exhibits and other supporting papers shall accompany such application, and the application, together with the affidavits, exhibits and other supporting papers, shall be served upon all other parties in accordance with section 275.8(b) of this Title.

(b) Notwithstanding the provisions of subdivision (a) of this section, in an appeal regarding a homeless child's or youth's access to a free, appropriate public education pursuant to section 100.2(x) of this Title affidavits, exhibits and other supporting papers may be served in accordance with either section 275.8(b) or section 275.13(b) of this Title.

§ 276.6 . . .

§ 276.7 Decisions to be filed.

(a) A copy of the decision of the commissioner in an appeal will be forwarded by the office of counsel to all parties to the appeal, or, if they be represented by counsel, to counsel for the respective parties, with instructions for service and filing as may be appropriate. A copy will also be sent to those persons or organizations who have been granted leave to submit memoranda amicus curiae.

(b) In an appeal regarding a homeless child's or youth's access to a free, appropriate public education pursuant to section 100.2(x) of this Title, a copy of the decision of the commissioner in an appeal will also be forwarded by the office of counsel to the local educational agency liaison for homeless children or youth.

§ 276.8 Reopening of a prior decision.

(a) . . .

(b) . . .

(d) . . .

(e) Notwithstanding the provisions of subdivision (b) of this section, in an appeal regarding a homeless child's or youth's access to a free, appropriate public education pursuant to section 100.2(x) of this Title, an application to reopen a decision may be served in the manner set forth in either section 275.8(b) or (e) of this Title. Service of affidavits in opposition to an application to reopen shall be served in accordance with the provisions of either section 275.8(b) or (e) or section 275.13(b) of this Title.

§ 276.9 . . .

§ 276.10 . . .

3. Paragraph (7) of subdivision (x) of section 100.2 of the Regulations of the Commissioner of Education is amended, effective April 12, 2005, as follows:

(7) School district responsibilities.

(i) Enrollment. Each school district shall:

(a) . . .

(b) . . .

[(iv)] (ii) Dispute resolution. Each school district shall:

(a) establish procedures, in accordance with 42 U.S.C. section 11432(g)(3)(E), for the prompt resolution of disputes regarding school selection or enrollment of a homeless child or youth (Public Law 107-110, title X, section 1032, 115 STAT. 1998; Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402-9328; 2002; available at the Office of Counsel, State Education Building, Room 148, Albany, NY 12234); [and]

(b) provide a written explanation, including a statement regarding the right to appeal pursuant to 42 U.S.C. section 11432(g)(3)(E)(ii), to the homeless child's or youth's parent or guardian, if the school district declines to either enroll and/or transport such child or youth to the school of origin or a school requested by the parent or guardian (Public Law 107-110, title X, section 1032, 115 STAT. 1998; Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402-9328; 2002; available at the Office of Counsel, State Education Building, Room 148, Albany, NY 12234); and

(c) delay for thirty (30) days the implementation of a final determination to decline to either enroll in and/or transport the homeless child or youth or unaccompanied youth to the school of origin or a school requested by the parent or guardian or unaccompanied youth; provided that if the parent or guardian of a homeless child or youth or unaccompanied youth commences an appeal to the Commissioner pursuant to Education Law section 310 with a stay application within thirty (30) days of such final determination, the homeless child or youth or unaccompanied youth shall be permitted to continue attending the school he or she is enrolled in at the time of the appeal until the Commissioner renders a decision on the stay application.

[(v)] (iii) Local educational agency liaison. Each school district shall:

(a) designate an appropriate staff person, who may also be a coordinator for other Federal programs, as a local educational agency liaison for homeless children and youth to carry out the duties described in 42 U.S.C. section 11432(g)(6) (Public Law 107-110, title X, section 1032, 115 STAT. 2000; Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402-9328; 2002; available at the Office of Counsel, State Education Building, Room 148, Albany, NY 12234);

(b) in the case of an unaccompanied youth, ensure that the local educational agency liaison assists in placement or enrollment decisions under this paragraph, considers the views of such unaccompanied youth, and provides notice to such youth of the right to appeal pursuant to 42 U.S.C. section 11432(g)(3)(E)(ii) (Public Law107-110, title X, section 1032, 115 STAT. 1998; Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402-9328; 2002; available at the Office of Counsel, State Education Building, Room 148, Albany, NY 12234); [and]

(c) require the local educational agency liaison to assist the homeless child's or youth's parent or guardian or the unaccompanied youth in commencing an appeal to the Commissioner pursuant to Education Law section 310 of a final determination regarding enrollment, school selection and/or transportation by:

(1) providing the parent or guardian or unaccompanied youth with the form petition;

(2) assisting the parent or guardian or unaccompanied youth in completing the form petition;

(3) arranging for the copying of the form petition and supporting documents for the parent or guardian or unaccompanied youth, without cost to the parent or guardian or unaccompanied youth;

(4) accepting service of the form petition and supporting papers on behalf any school district employee or officer named as a party or the school district if it is named as a party or arranging for service by mail by mailing the form petition and supporting documents to any school district employee or officer named as a party and, if the school district is named as a party, to a person in the office of superintendent who has been designated by the board of education to accept service on behalf the school district;

(5) providing the parent or guardian or unaccompanied youth with a signed and dated acknowledgment verifying that the local educational agency liaison has received the form petition and supporting documents and will either accept service of these documents on behalf of the school district employee or office or school district or effect service by mail by mailing the form petition and supporting documents to any school district employee or officer named as a party and, if the school district is named as a party, to a person in the office of superintendent who has been designated by the board of education to accept service on behalf the school district;

(6) transmitting on behalf of the parent or guardian or unaccompanied youth, within five days of after the service of the form petition or any pleading or paper to the Office of Counsel, New York State Education Department, State Education Building, Albany, New York 12234;

(7) providing the parent or guardian or unaccompanied youth with a signed and dated acknowledgement verifying that the local educational agency liaison has received the form petition and supporting documents and will transmit these documents on behalf of the parent, guardian or unaccompanied youth to the Office of Counsel, New York State Education Department, State Education Building, Albany, New York 12234; and

(8) accepting service of any subsequent pleadings or papers, including any correspondence related to the appeal, if the parent or guardian or unaccompanied youth so elects related to the appeal on behalf of the parent or guardian or unaccompanied youth and making such correspondence available to the parent or guardian or unaccompanied youth;

(d) ensure that the local educational agency liaison maintains a record of all appeals of enrollment, school selection and transportation determinations; and

(e) inform school personnel, service providers and advocates working with homeless families of the duties of the local educational agency liaison.

(vi) . . .

(vii) . . .

The Honorable the Members of the Board of Regents