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Decision No. 16,137

Application to reopen the 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. 16,137

(August 20, 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, Joseph J. Bufano, Esq., of counsel

STEINER, Commissioner.--Petitioner seeks to reopen the Appeal of the Bd. of Educ. of the Cherry Valley-Springfield Cent. School Dist., 49 Ed Dept Rep __, Decision No. 16,061, which dismissed petitioner’s challenge to 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 for the 2008-2009 school year.  The application must be denied.

Section 276.8 of the Commissioner’s regulations governs applications to reopen a prior decision.  It provides that such applications are addressed solely to the discretion of the Commissioner and will not be granted in the absence of a showing that the original decision was rendered under a misapprehension of fact or that there is new and material evidence that was not available at the time the decision was made.  A reopening may not be used to augment previously undeveloped factual assertions and arguments, to advance new legal arguments or to merely reargue issues presented in a prior appeal (Appeal of Polistin, 45 Ed Dept Rep 504, Decision No. 15,395; Application to reopen the Appeal of Johnson, 45 id. 275, Decision No. 15,320).

The record in the underlying appeal indicated that, in December 2007, the Otsego County Department of Social Services (“DSS”) placed the student in a foster home within petitioner’s district and identified respondent as the school district of residence fiscally responsible for the student’s education.  In my decision, I noted that Education Law §3202(4)(f) establishes a process by which a public agency must determine the district of residence and disputes regarding residency and fiscal responsibility are to be resolved by the agency.  Based on the fact that the parties to the underlying appeal disputed fiscal responsibility for the student and implicated DSS’s residency determination, I concluded that DSS was a necessary party to the appeal and that petitioner’s failure to join that agency required dismissal.

Petitioner alleges that my decision was rendered under a “misapprehension that ... an appeal by Schenevus could be made at this time or [an opportunity to appeal] was held by Cherry Valley.”  According to petitioner, “residency is not raised in the petition for reimbursement and any appeal regarding residency on the part of Schenevus has long expired.  Therefore, DSS is not a necessary party to the action.”

However, the decision in the underlying appeal was not rendered under the misapprehension that any party – including petitioner – could now commence an appeal of DSS’s 2007 residency determination pursuant to Education Law §3202(4).  Rather, the decision reflects that the central issue before me was petitioner’s assertion that, based on DSS’s 2007 residency designation, respondent was fiscally responsible for the student’s tuition.  The record in the underlying appeal did not indicate whether DSS properly followed the requirements of Education Law §3202(4).  As a result, a decision in the underlying appeal could adversely affect the rights of DSS, which was therefore a necessary party.

On this record, petitioner has not demonstrated that the original decision was rendered under a misapprehension of fact.  Nor does petitioner present any new and material evidence that was not available at the time the decision was made.

THE APPLICATION TO REOPEN IS DENIED.

END OF FILE.