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Decision No. 16,061

Appeal of the BOARD OF EDUCATION OF THE CHERRY VALLEY-SPRINGFIELD CENTRAL SCHOOL DISTRICT from action of the Board of Education of the Schenevus Central School District regarding tuition reimbursement.

Decision No. 16,061

(May 10, 2010)

Hogan, Sarzynski, Lynch, Surowka & DeWind, LLP, attorneys for petitioner, Amy J. Lucenti, Esq., of counsel

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Donald E. Budmen and Joseph J. Bufano, Esqs., of counsel

STEINER, Commissioner.--Petitioner challenges the refusal of the Board of Education of the Schenevus Central School District (“respondent”) to reimburse it for the cost of tuition for a student, M.J., for the 2008-2009 school year.  The appeal must be dismissed.

M.J. had been residing with her mother in the City School District of the City of Oneonta when, on or about August 28, 2007,[1] the Otsego County Family Court ordered that M.J. “reside” with her sister in the state of Maryland pursuant to a Person in Need of Supervision (“PINS”) proceeding.  The court further ordered that M.J. was not to relocate from her sister’s residence without court permission.  M.J. remained in the state of Maryland until on or about December 5, 2007, when she arrived at her mother’s current residence within respondent’s district.  The following day, December 6, 2007, the Otsego County Department of Social Services (“DSS”) placed M.J. in a foster home within petitioner’s district, where M.J. began attending school.

By invoice dated May 12, 2009, petitioner’s business official informed respondent that it was responsible for M.J.’s tuition in the amount of $10,615.00 for the 2008-2009 school year.  With the invoice, petitioner enclosed a copy of the DSS Form 2999 (“Form 2999”) entitled "School District Notification of Foster Child,” on which DSS listed “Ross Adult Home” in Maryland, New York as M.J.’s address at the time she was placed in foster care and identified respondent as fiscally responsible for M.J.’s education.

By letter dated June 16, 2009, respondent’s superintendent denied responsibility for M.J.’s tuition.  On or about June 30, 2009, petitioner’s business official sent a corrected invoice to respondent in the amount of $8,861.00.  In a July 27, 2009 letter, respondent’s attorney informed petitioner’s attorney that respondent was not responsible for M.J.’s tuition.  This appeal ensued.

Petitioner contends that respondent is fiscally responsible for M.J.’s education and seeks tuition reimbursement in the amount of $8,861.00 for the 2008-2009 school year.  Respondent denies responsibility for M.J.’s tuition and maintains that petitioner has failed to establish M.J.’s residency, which requires both physical presence and intent to reside in the district.

Education Law §3202(4)(a) provides, in pertinent part:

[T]he cost of instruction of pupils placed in family homes at board by a social services district ... shall be borne by the school district in which each such pupil resided at the time the social services district ... assumed responsibility for the support and maintenance of such pupil....[2] 

Education Law §3202(4)(f) establishes a process by which the district of residence is determined and disputes regarding residency are to be resolved.  That section provides that, within 10 days of a student’s placement pursuant to §3202(4)(a), the public agency (“agency”) must provide written notice to the school district believed to be the district of residence (Education Law §3202[4][f][i]).  Within 10 days of receipt of such notice, the district may submit to the agency additional evidence to establish that it is not the student’s district of residence (Education Law §3202[4][f][ii]).  The agency must make a final determination no later than five days after receipt of such evidence (Education Law §3202[4][f][ii]).  A board of education has 30 days following receipt of an agency’s final determination to commence an appeal to the Commissioner of Education from the determination of the agency pursuant to Education Law §310 (Education Law §3202[4][f][iv]).  If the agency fails to provide timely notice or fails to render its final determination in a timely manner, the agency is fiscally responsible during the pendency of the proceedings or until the end of the school year, whichever is longer (Education Law §3202[4][f][vi]).

A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  As noted above, Education Law §3202(4)(f) sets forth a procedure pursuant to which a board of education may appeal a public agency’s final determination regarding the school district of residence of a student in foster care.  As a result, DSS is a necessary party to this appeal and petitioner’s failure to join that agency requires dismissal (seeAppeal of the Parent Association of Public School No. 37, 13 Ed Dept Rep 261,  Decision No. 8,821 [challenge to determination of New York City Board of Education required its joinder as a respondent]).

THE APPEAL IS DISMISSED.

END OF FILE.

[1] While the order appears to have been issued on August 28, 2007, it was dated and signed by Judge Brian D. Burns on September 11, 2007.

[2] Although the parties have not addressed this issue in their papers, I note that Education Law §3202(4)(a) also provides that:  “Notwithstanding any inconsistent provision of law, where the permanent residence of a pupil is outside of the state, the school district in which the pupil was located at the time the public agency placed such pupil shall be deemed the district of residence of such pupil for purposes of this subdivision and shall be responsible for the cost of instruction of such pupil.”