Decision No. 17,456
Appeal of the BOARD OF EDUCATION OF THE EAST RAMAPO CENTRAL SCHOOL DISTRICT and DEBORAH L. WORTHAM as Superintendent from action of the Board of Education of the Monticello Central School District and Tammy Mangus as Superintendent regarding provision of health and welfare services.
Decision No. 17,456
(July 18, 2018)
Harris Beach PLLC, attorneys for petitioners, Douglas E. Gerhardt, Esq., of counsel
Thomas, Drohan, Waxman, Petigrow & Mayle LLP, attorneys for respondents, Laura Wong-Pan, Esq., of counsel
ELIA, Commissioner.--Petitioners appeal the refusal of the Board of Education of the Monticello Central School District and Superintendent Tammy Mangus (collectively, “respondents”) to reimburse them for providing health and welfare services to alleged residents of respondents’ district who attended a private school in petitioners’ district during the 2010-2011, 2011-2012 and 2014-2015 school years. The appeal must be sustained in part.
On June 12, 2011, petitioners submitted an invoice to respondents, pursuant to Education Law §912, for reimbursement of health and welfare costs incurred on behalf of 29 students who allegedly resided in respondents’ district but attended a nonpublic school in petitioners’ district during the 2010-2011 school year. Petitioners calculated the cost of such services at $542.81 per student.
On June 13, 2012, petitioners submitted an invoice to respondents, pursuant to Education Law §912, for reimbursement of health and welfare costs incurred on behalf of 27 students who allegedly resided in respondents’ district but attended a nonpublic school in petitioners’ district during the 2011-2012 school year. Petitioners calculated the cost of such services at $804.38 per student.
The record reflects that petitioners submitted invoices to respondent seeking reimbursement of health and welfare costs incurred on behalf of students who allegedly resided in respondents’ district for the 2012-2013 and 2013-2014 school years, and that respondents paid these invoices.
On June 12, 2015, petitioners submitted an invoice to respondents, pursuant to Education Law §912, for reimbursement of health and welfare costs incurred on behalf of 59 students who allegedly resided in respondents’ district but attended a nonpublic school in petitioners’ district during the 2014-2015 school year. Petitioners calculated the cost of such services at $721.31 per student.
In email correspondence between an employee within East Ramapo’s accounting office, and Monticello’s administrative assistant/treasurer (“administrative assistant”), Monticello’s administrative assistant stated that “the majority of the students” identified in the June 12, 2015 invoice “are not registered with Monticello CSD which creates the question as to whether they actually live here....” The individual in East Ramapo’s accounting department indicated that she had “contacted the [nonpublic] school” and would attempt to obtain proof of residency for the students. Monticello’s administrative assistant replied on July 15, 2015 and indicated that “[t]hese students need to be registered with Monticello CSD in order for us to be responsible for their [h]ealth [s]ervices.” The administrative assistant additionally stated that respondents “need[ed] proof of residency to register each student,” and that she could not “process payment with you only providing me proof of residency.”
In a letter to respondents’ assistant superintendent for business dated December 1, 2015, an accountant employed by East Ramapo indicated that $80,017.04 remained owed for the 2010-2011, 2011-2012, and 2014-2015 school years. In the letter, the accountant argued that the families of the children for whom petitioners sought reimbursement were not required to register with respondents’ district as a precondition to reimbursement for health and welfare services. Nevertheless, in response to respondents’ request for proof of residency for these families, the accountant attached “utility bills from the respective parents [for] each of [the] students whose residence is located in the Monticello Central School District ....”
In a letter to Monticello’s assistant superintendent for business dated February 10, 2016, East Ramapo’s assistant superintendent for finance reiterated petitioners’ request for reimbursement and indicated that, if payment was not received by February 22, 2016, petitioners would commence “formal action before the Commissioner.”
Monticello’s assistant superintendent for business responded in a letter dated March 9, 2016. In this letter, the assistant superintendent for business indicated that she first became aware of petitioners’ reimbursement request on December 1, 2015. She further elaborated that respondents engaged a firm to investigate whether the families for whom petitioners sought reimbursement were, in fact, residents of Monticello. The assistant superintendent indicated that she had spoken with the accountant employed by East Ramapo in December 2015 and informed her that:
[T]his area has many summer residents that come to the area from approximately May – August each year and since the documentation provided were mainly utility bills for those months it was difficult to determine if the residence was a secondary home or a primary residence, which resulted in Monticello initiating the investigation.
The assistant superintendent for business indicated that, as a result of the investigation, respondents had determined that only a few of the students who claimed to be residents of respondents’ district actually resided within its geographical boundaries. Specifically, respondents agreed that the following number of students were residents of respondents’ district for the below school years: one student for the 2011-2012 school year; two students for the 2012-2013 school year; three students for the 2013-2014 school year; and nine students for the 2014-2015 school year. The assistant superintendent for business further indicated that because there were “discrepancies” between the information submitted by petitioners and respondents, respondents were “willing to initiate surveillance to determine actual residency if the East Ramapo Central School District is will [sic] to share in the cost of such surveillance.”
In light of respondents’ determinations regarding the families in question, and because respondents had already paid petitioners for the 2012-2013 and 2013-2014 school years, the assistant superintendent for business indicated that petitioners owed respondents a refund of $21,529.31. The assistant superintendent for business further indicated that respondents would not “pay anything” for the invoice concerning the 2010-2011 school year as “the one sent was for Yorktown.” This appeal ensued.
Petitioners argue that they sufficiently proved the students’ residence status for the years in question and made multiple attempts to recover the amounts due from respondents. Petitioners request an order directing respondents to provide reimbursement for health and welfare service costs incurred on behalf of those students who resided in respondents’ district, but attended a nonpublic school in petitioners’ district, for the 2010-2011, 2011-2012, and 2014-2015 school years. Petitioners further seek an award of interest and an order directing respondents to comply with their obligation pursuant to Education Law §912.
Respondents contend that petitioners’ appeal must be dismissed as untimely. Respondents additionally assert that petitioners failed to submit sufficient proof of the disputed students’ residency and that the appeal must be dismissed. Respondents argue that each of the students in question resides in the hamlet of Kiamesha Lake, and that many of the residents of that hamlet, which is within respondents’ district, are summer residents who live in Kiamesha Lake for a small portion of the year. Finally, respondents object to petitioners’ reply, asserting that it includes new exhibits and a reply affidavit that were submitted without the prior permission of the Commissioner pursuant to 8 NYCRR §276.5. Respondents argue that these submissions improperly buttress allegations in the petition and constitute new evidence that was available at the time the petition was served.
First, I must address a procedural issue. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908). Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.
Turning to the issue of timeliness, respondents seek reimbursement for costs associated with three school years. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879). In decisions rendered prior to my recent decision in Appeal of the Board of Education of the New Hyde Park-Garden City Park Union Free School District (57 Ed Dept Rep, Decision No. 17,397), the Commissioner had repeatedly declined to apply the 30-day time limitation to appeals involving health services reimbursement, reasoning that the obligation to provide health services is continuing (see Appeal of the Bd. of Educ. of the Brighton Central Sch. Dist., 36 Ed Dept Rep 381, Decision No. 13,755; Matter of Board of Education of the City School District of the City of Long Beach, 5 id. 180, Decision No. 7,633; Matter of Central High School District No. 2, Towns of Hempstead and North Hempstead, 2 id. 255, Decision No. 7,066; Matter of Union Free School District No. 3, Town of Eastchester, 77 State Dept Rep 130).
In Appeal of the Board of Education of the New Hyde Park-Garden City Park Union Free School District (57 Ed Dept Rep, Decision No. 17,397), I held that, in an appeal to the Commissioner pursuant to Education Law §310 seeking reimbursement for health services, the appeal must be commenced within 30 days after the conclusion of the school year in which the costs were incurred. I also held in that appeal that, given the parties’ reliance on prior Commissioner’s decisions that declined to apply the 30-day timeline, it would be fundamentally unfair to apply the new rule retroactively to reimbursement disputes such as this which arose prior to May 30, 2018, the date of such decision. Similarly, because that decision was rendered late in the 2017-2018 school year and school districts needed time to adjust their billing and reimbursement practices in light of the new rule, I held that it would not be appropriate to apply the new rule to claims for reimbursement for services rendered during the 2017-2018 school year even where the dispute arose after the date of that decision. Accordingly, I held in that appeal that the new rule applied only to those cases involving reimbursement for services rendered in the 2018-2019 school year and beyond.
In this appeal, petitioner seeks reimbursement for health services rendered in the 2010-2011, 2011-2012 and 2014-2015 school years. Thus, the new rule does not apply and the appeal is governed by the prior Commissioner’s decisions holding that the 30-day time limitation does not apply. I therefore decline to dismiss the appeal as untimely.
Turning to the merits, pursuant to Education Law §912, petitioners are obligated to provide the same health and welfare services and facilities for nonresident students who attend nonpublic school in their district that they provide to resident students who attend public school in the district. Further, petitioners are entitled to charge respondents the cost of providing such services to residents of respondents’ district. The proper charge to the district of origin for each student is the total cost of all health and welfare services divided by the total number of students, public and nonpublic (Appeal of the Board of Education, Greenburgh Central School District No. 7, 33 Ed Dept Rep 81, Decision No. 12,983; Matter of the Board of Education, City School District of the City of New Rochelle, 23 id. 355, Decision No. 11,246; Matter of the Board of Education, Elmsford Union Free School District, 22 id. 151, Decision No. 10,913).
Education Law §912, however, does not address the type of documentation that is required to obtain reimbursement. Instead, §912 calls for a written contract between the district of residence and the district of attendance:
Where children residing in one school district attend a school other than public located in another school district, the school authorities of the district of residence shall contract with the school authorities of the district where such nonpublic school is located, for the provision of such health and welfare services and facilities to such children by the school district where such nonpublic school is located, for a consideration to be agreed upon between the school authorities of such districts, subject to the approval of the qualified voters of the district of residence when required under the provisions of this chapter. Every such contract shall be in writing and in the form prescribed by the commissioner, and before such contract is executed the same shall be submitted for approval to the superintendent of schools having jurisdiction over such district of residence and such contract shall not become effective until approved by such superintendent.
In this case, there is no indication in the record that the parties had a written contract for the school years at issue in this appeal. However, the Commissioner has repeatedly held that even if the technical requirements of §912 have not been complied with and no contract has been entered into, neither board of education may be absolved of its statutory duty to provide health services or to reimburse for such services, as applicable (Matter of the Board of Education, City School Dist. of the City of New Rochelle, 23 Ed Dept Rep 355, Decision No. 11,246; Matter of the Board of Education, City School Dist. of the City of Plattsburgh, 10 id. 228, Decision No. 8,287; Matter of Union Free School District No. 10 of Southold, 1 id. 197, Decision No. 6,546).
In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).
Initially, I must address the parties’ lack of compliance with Education Law §912 for the school years in question. As indicated above, that statute requires that districts enter into contracts to facilitate reimbursement for health services. The problems caused by failing to enter into an agreement are amply demonstrated by the record in the instant appeal, where the parties had no binding mechanism by which to prove or dispute residency for health reimbursement purposes. Such a mechanism was especially needed here, given the large number of students attending a single nonpublic school in petitioners’ district and the substantial amount of disputes arising therefrom. While not required, I note that a standardized parental affirmation of residency form is one such mechanism which, subject to contradictory evidence submitted by a district of location, constitutes prima facie evidence of residency (see Appeal of the Board of Education of the New Hyde Park-Garden City Park Union Free School District, 57 Ed Dept Rep, Decision No. 17,397). Whatever mechanism the parties decide upon, however, their contract should specify what kind of information or documents shall constitute acceptable proof of residency. Education Law §912 envisions a system where claims are promptly submitted and reimbursed. The instant scenario, where the parties have been arguing over the residency of students for several years, is inconsistent with such system. Nevertheless, I am obligated to render a decision in the instant matter and will review and weigh the parties’ evidentiary submissions.
Petitioners’ request for reimbursement for the 2010-2011 school year must be dismissed in its entirety. Petitioners seek an order directing respondents to pay the amount specified in their May 13, 2011 invoice, which seeks $15,741.49 in reimbursement for 29 students. However, petitioners have not established that they provided respondents with a list of the names and addresses of the 29 students for whom they claim reimbursement in the amount of $15,741.49, nor have petitioners submitted such information in this appeal. In a letter dated March 9, 2016, respondents’ assistant superintendent for business wrote that: “the 2010-11 invoice does not have the appropriate student list[;] the one sent was for Yorktown ...” and indicated that respondents would not “pay anything on that invoice.” This is corroborated by the evidence submitted by petitioners, which contains a list of non-resident students for the 2010-2011 school year under the heading “Yorktown.” Further, all but one of the students’ home addresses in this document are located in Mount Kisco, New York, which is outside the geographical boundaries of respondents’ district.
In their reply, petitioners state that their submission of an incorrect list was a “clerical error in a single communication referencing the Yonkers City School District [sic]” and that “[u]pon information and belief, that error was corrected ....” Nonetheless, petitioners have failed to substantiate their claim that they corrected this error and have failed to prove on this record that they, in fact, submitted a list of students who allegedly resided within respondents’ district for the 2010-2011 school year. Therefore, petitioners’ claims for reimbursement for the 29 students whom it alleges were residents of respondent’s district during the 2010-2011 school year must be dismissed.
Petitioners’ request for reimbursement for health services provided to 27 students in the 2011-2012 school year must be granted. The parties do not dispute that all of the addresses listed in the attachment to petitioners’ June 13, 2012 invoice are located within respondents’ school district. The record reveals that respondents paid invoices for health reimbursement for the 2012-2013 and 2014-2015 school years without questioning the accuracy of the lists of resident students provided by petitioners. Petitioners allege that such invoices included students whose residency respondents are now challenging, and respondents have provided no evidence to the contrary. Instead, respondents merely assert that information obtained in 2016 demonstrated that some of the families in the June 13, 2012 invoice were not residents of respondents’ district.
Under such circumstances, I find that respondents are estopped from challenging the June 13, 2012 invoice based upon a residency investigation conducted in 2016 (see Appeal of the City School Dist. of the City of New Rochelle, 35 Ed Dept Rep 198, Decision No. 13,514). Respondents cannot demonstrate residency or non-residency based upon an investigation which was conducted almost four years after the fact. Therefore, absent proof that the students on the list did not reside in respondents’ district in the 2011-2012 school year, respondents had no basis for refusing to pay the $21,718.26 in health services reimbursement as specified in the June 13, 2012 invoice.
Turning to the 2014-2015 school year, respondents have submitted an affidavit identifying the 17 families whose residency they dispute. Petitioners do not dispute the accuracy or comprehensiveness of this list. Thus, I have centered my analysis on the proof in the record concerning the residency of these families. However, two of the 17 families, the Goldman and Rosenberg families, appear on the list solely for the 2011-2012 school year. Thus, I find that only the residency of 15 families in the 2014-2015 school year remains in dispute, and the record indicates that these 15 families include a total of 22 students.
Respondents’ principal contention on appeal is that the various utility bills submitted by petitioners as evidence of residency are not sufficient and should be disregarded because most of those bills are for a period that includes the summer months and Kiamesha Lake has a sizeable population of seasonal residents. Thus, coupled with evidence that many of the families also maintain addresses outside of respondents’ district (mostly in Monsey, New York), respondents argue that the families are summer residents of Kiamesha Lake and reside outside of their district for the majority of the year.
Initially, I reject the premise that respondents can prove that these families are not actual residents based upon respondents’ generalized suspicion that the disputed students are only summer residents of their district. To endorse this reasoning would allow districts of residence to deny reimbursement based upon speculation that families are seasonal residents who pay utilities in the summer instead of individualized proof that each family resides elsewhere. Moreover, the record indicates that at least five of the families submitted utility bills dated June 2015 or earlier, which covered usage prior to June. Therefore, I reject respondents’ reliance on such generalized assertions as speculative and, absent additional proof that a particular family actually resides outside of respondents’ school district, I have not afforded such considerations any weight in reaching my determination.
As noted above, Education Law §912 envisions the immediate and continuous provision of health services by a district of location followed by prompt payment by the district of residence. In this context, something less than a formal residency determination pursuant to 8 NYCRR §100.2(y) may be used by the district of location to establish residency (see Appeal of the Board of Education of the New Hyde Park-Garden City Park Union Free School District, 57 Ed Dept Rep, Decision No. 17,397; Appeal of the City School Dist. of the City of New Rochelle, 35 id. 198, Decision No. 13,514).
Here, petitioners submitted documentary evidence in support of their residency claims for 14 of the 15 families, primarily consisting of utility bills and, in one case, a driver’s license. Respondents, in response, submit multiple sources of information which, they argue, contradict petitioners’ claims of residency. First, respondents submit evidence that at least nine of the 15 families maintain residences in Monsey or Spring Valley, New York, which are approximately 65 miles from respondents’ district. The written report of respondents’ investigation identifies addresses associated with the students’ families as well as a section entitled “[a]ddress [h]istory” which purports to identify where the families have lived, and for how long. However, respondents have made no showing as to the reliability of this information for the specific school years at issue. At most, such evidence indicates that these families may own or lease more than one property, but it does not prove that the families do not actually reside in Kiamesha Lake. And, for some of the families, the information cannot literally be true: for example, a member of the Fried family is identified as living at one address from “10/01/2003 to [p]resent,” at a second address from “05/24/2006 to [p]resent,” and at a third address from “04/1998 to [p]resent.” Therefore, I do not find the information obtained through respondents’ investigation as to the families mailing addresses outside of respondents’ district sufficient, in and of itself, to overcome the utility and other bills submitted by petitioners, which reflect actual usage at the addresses in question.
Next, respondents’ assistant superintendent for business asserts in her affidavit that “[s]everal of the individuals on the list maintain a Monsey address where bills are sent, or are not homeowners with STAR exemptions” and attaches copies of a tax assessment roll as an exhibit. The copy of the tax assessment roll contains handwritten notes identifying the properties of 13 of the 15 families. In eight of the 13 instances, the tax assessment roll identifies the owner of the property as corporations, other individuals or a religious organization located in Monsey. In the other five instances, the tax assessment rolls identify the owners as other individuals or a limited liability company with a Kiamesha Lake address. I do not find this evidence, or respondents’ argument about the significance of the lack of a School Tax Assessment Relief exemption, to be persuasive under the circumstances. One does not have to be an owner of property within the district to be a district resident. It is entirely possible that the families are leasing the Kiamesha Lake properties and are thus responsible for payment of utilities for their dwellings, many of which are designated as apartments in multi-family dwellings. Thus, this evidence does not rebut the utility and other bills submitted by petitioners.
However, I find that voter registration evidence submitted by respondents concerning four of the families at issue sufficiently overcomes petitioners’ evidence. Respondents submit evidence from State voter registration records indicating that four of the parents - Yosef Bababan, Yosef Einhorn, Chaim Kessler and Chaim Neiman - are currently registered to vote at a Monsey address or a Spring Valley address. I find such additional evidence more probative of these families’ physical presence than the electric and gas, cellphone, telephone, recycling or refuse removal bills submitted by the families. While the utility and other bills demonstrate that someone resided at the property and the families’ name on the bill reflects a connection to the property, the notion that an individual would register to vote approximately 65 miles from their residence strains credulity. Petitioners have offered no explanation for the voter registration record in their reply. Therefore, I find that respondents were justified in refusing to reimburse petitioners for these four families and their seven children.
Additionally, petitioners have not met their burden of proving that three of the disputed families reside within respondents’ district. Petitioners have provided no evidence relating to the residency of Chaim Weiss and his two children. Additionally, the documentary proof submitted on behalf of the Fried and Friedman families bears a different first name than the first name of the parent identified in petitioners’ records. Without further explanation, there is no basis in the record to conclude that the parents or legal guardians of the students in question are residing with their children at the address on petitioners’ list. Accordingly, I find that respondents were justified in declining to reimburse petitioners for these three families and their six children.
Therefore, of the 59 students included in the June 12, 2015 invoice, respondents have not disputed the residency of 37 students; petitioners have met their burden of proving that nine students are residents of respondents’ district; and petitioners have not met their burden of proving that 13 students are residents of respondents’ district. Applying the $721.31 reimbursement rate, which is not disputed by respondents, I find that respondents must reimburse petitioners for health services provided in the 2014-2015 school year for 46 students in the amount of $33,180.26. When the $21,718.26 due and owing for health services provided in the 2011-2012 school year is added to this amount, the total amount of reimbursement to which petitioners are entitled is $54,898.52, and I will order payment of that amount, less any portion that has previously been paid.
Finally, while I have sustained petitioners’ request for reimbursement in part, petitioners’ request for an award of “statutory interest” must be denied. It is well-settled that the Commissioner has no authority to award interest in an appeal pursuant to Education Law §310 (Appeal of the City School District of the City of New Rochelle, 35 Ed Dept Rep 198, Decision No. 13,514; Appeal of the Bd. of Ed., Greenburgh CSD No. 7, 33 id. 81, Decision No. 12,983).
I have considered the parties’ remaining contentions and find them to be without merit.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that respondents pay to petitioners the amount of $54,898.52 for the 2011-2012 and 2014-2015 school years, less any amount which may have been paid prior to the date of this decision, in compensation for health services rendered to residents of respondents’ district in accordance with this decision.
END OF FILE
 Subsequent to the filing of all papers in this appeal, Guercio and Guercio LLP was retained as counsel for respondents.
 The record contains a contract executed by both petitioners and respondents for the 2013-2014 school year, and a contract signed only by petitioners for the 2014-2015 school year.
 Accordingly, based on the parties’ mutual noncompliance with Education Law §912, both parties are admonished to comply with this law.
 Respondents do not dispute the per pupil reimbursement rate for this or any of the disputed school years.