Appeal of the BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF PLATTSBURGH from action of the Board of Education of the AuSable Valley Central School District, the Board of Education of the Northeastern Clinton Central School District and the Clinton County Department of Social Services regarding tuition reimbursement.

Decision No. 17,641

(May 22, 2019)

Girvin & Ferlazzo, PC, attorneys for petitioner, Kaitlyn A. Schwendeman, Esq., of counsel

Stafford, Owens, Piller, Murnane, Kelleher & Trombley, PLLC, attorneys for respondent Board of Education of the AuSable Valley Central School District, Jacqueline M. Kelleher, Esq., of counsel

Keane & Beane, P.C., attorneys for respondent Board of Education of the Northeastern Clinton Central School District, Susan E. Fine, Esq., of counsel

Clinton County Department of Social Services, Thomas H. Webb, III, Esq., Social Services Attorney

ELIA, Commissioner.--Petitioner appeals the refusals of the Board of Education of the AuSable Valley Central School District (“respondent AuSable Valley”) and the Board of Education of the Northeastern Clinton Central School District (“respondent Northeastern Clinton”) to pay the tuition of a student in foster care (“the student”) for the 2013-2014, 2015-2016, and 2016-2017 school years.[1]  The petition also alleges that Clinton County Department of Social Services (“respondent DSS”) is fiscally responsible for petitioner’s tuition expenses in connection with the student since it failed to make reasonable efforts to identify the school district in which the student resided when the student entered foster care (“district of origin”) and/or failed to render its determination in a timely manner.  The appeal must be sustained in part.

The facts leading up to the student’s placement in foster care and the multiple school districts which he has attended have been presented by the parties in a fragmented way through various affidavits submitted in connection with this appeal.  As a result, the chronology of the events underlying this appeal is not entirely clear.  As best as can be ascertained from the record, during the 2011-2012 school year, the student attended school within respondent Northeastern Clinton’s district.  In August 2012, the “Peru Public [S]chools” wrote to respondent Northeastern Clinton, indicating that respondent DSS had custody of the student and requesting a copy of the student’s records.[2]  During the “fall of the 2012 school year,” the student attended the Peru Central School district.[3]  However, the record indicates that the student returned to respondent Northeastern Clinton’s district from November 2012 through the end of the 2012-2013 school year.

The record indicates that, sometime in 2012,[4] respondent DSS sent petitioner and respondent AuSable Valley copies of a New York State Office of Children and Family Services School District Notification of Foster Child Placed in a Foster Family, Agency Boarding, or Group Home form (“DSS 2999 form”) which designated respondent AuSable Valley as the district in which the child resided when the child entered foster care on August 14, 2012.  The letter further indicated that the student’s foster care placement was located within petitioner’s district.

By letter dated August 21, 2013, respondent AuSable Valley’s school business executive wrote to respondent DSS and requested that the DSS 2999 form “be revised to list NCCS as the home [d]istrict.”  During the 2013-2014 school year, the student attended school in petitioner’s district.[5]

By letter dated June 3, 2014, petitioner requested tuition reimbursement from respondent AuSable Valley for the cost of educating the student.  By email dated June 9, 2014, respondent AuSable Valley’s school business executive replied, attaching his August 21, 2013 letter which he had sent to respondent DSS, and asserting that the student had never resided within respondent AuSable Valley’s district.

By letter dated June 11, 2014, respondent AuSable Valley’s school business executive wrote to respondent DSS, attaching the aforementioned August 21, 2013 letter and requesting “a revised notification with the proper school listed.”

During the 2014-2015 school year, the student attended school in a school district which is not a party to the instant appeal.

During the 2015-2016 school year, the student again attended school in petitioner’s district.  Employees of petitioner’s district and respondent AuSable Valley’s district exchanged multiple emails between January 2016 and August 2016.  In these emails, petitioner again requested tuition reimbursement on behalf of the student and respondent AuSable Valley denied financial responsibility.

During the 2016-2017 school year, the student continued to attend school in petitioner’s district.

By letter dated June 12, 2017, petitioner’s superintendent wrote to respondent AuSable Valley’s superintendent, enclosing a tuition invoice dated May 30, 2017 for the student’s tuition for the 2016-2017 school year.  The letter stated that if respondent AuSable Valley failed to pay the tuition bill, petitioner would “have no choice but to file a Commissioner Appeal seeking tuition reimbursement.”

By letter dated June 30, 2017, counsel for respondent AuSable Valley wrote to respondent DSS, requesting a review of the student’s DSS 2999 form.  On July 20, 2017, petitioner received a “revised” DSS 2999 form which changed the student’s district of origin from respondent AuSable Valley’s district to respondent Northeastern Clinton’s district.[6]

By email dated July 21, 2017, petitioner submitted invoices for the student’s tuition for the 2013-2014, 2015-2016, and 2016-2017 school years to respondent Northeastern Clinton.  Respondent Northeastern Clinton did not pay such invoices, and this appeal ensued.

Petitioner argues that it bears no financial responsibility for the student’s education during the 2013-2014, 2015-2016, and 2016-2017 school years and asserts various theories of liability against each named respondent.  Petitioner argues that respondent Northeastern Clinton is financially responsible for the student’s education based upon the revised DSS 2999 form dated July 20, 2017.  Petitioner further argues that since the revision was “only issued on July 20, 2017, [petitioner] is entitled to reimbursement for all years which the student was enrolled, and should not be barred by any claims of untimeliness.”  Petitioner argues that respondent AuSable Valley should be responsible for either the entirety of, or the remainder of, the tuition based upon respondent DSS’s designation of respondent AuSable Valley as the student’s district of origin in the 2012 DSS 2999 form.  Finally, petitioner alleges that respondent DSS should be responsible for the student’s tuition because it “fail[ed] to make reasonable efforts to identify the residence of the child, and to render a final determination in a final manner.”  Petitioner seeks a determination that one, or each of, the named respondents are responsible for the student’s tuition costs for the 2013-2014, 2015-2016, and 2016-2017 school years.

Respondent AuSable Valley contends that the appeal must be dismissed for failure to demonstrate a clear legal right to the requested relief.  Respondent AuSable Valley also contends that petitioner’s claims for tuition reimbursement for the 2013-2014 and 2015-2016 school years must be dismissed as untimely and that petitioner’s delay in seeking reimbursement for those years is “excessive and unjustified,” “prejudicial to AuSable,” and “barred by the doctrine of latches [sic].”  Finally, respondent AuSable Valley argues that the student has never been a resident of its district and, therefore, it is not responsible for making any payments to petitioner for the cost of the student’s education.

Respondent Northeastern Clinton argues that any claims for payment of tuition for any school year prior to the 2016-2017 school year must be dismissed as untimely.[7]  Respondent Northeastern Clinton also argues that any claim by petitioner or respondent AuSable Valley that they are not responsible for the student’s tuition is barred by laches.  Respondent Northeastern Clinton contends that respondent DSS’s 2012 residency determination became final by operation of law when it was not challenged and, therefore, AuSable Valley is the student’s district of origin.  In the alternative, respondent Northeastern Clinton contends that even if respondent DSS had the legal authority to “revise and/or amend” the student’s district of origin, respondent DSS had an “insufficient factual basis to do so”; there is no “reliable evidence” that the student resided within its district at the time the student entered DSS custody; and there is no “reliable evidence” that the student and/or the student’s family were homeless at the time.

Respondent DSS argues that it should not be held responsible for the student’s tuition costs and that it followed all applicable laws and policies.[8]  With respect to the 2013-2014 and 2015-2016 school years, it argues that DSS 2999 forms were submitted to petitioner and that the forms indicated that respondent AuSable Valley was the district of origin.  It further argues that respondent AuSable Valley “did not properly dispute” its designation as the district of origin “or follow the statutory guidelines to appeal” in a timely manner.  In the alternative, respondent DSS argues that petitioner’s claims for the 2013-2014 and 2015-2016 school years should be dismissed as untimely or because petitioner “never made a good faith attempt to cure this issue ....”  With respect to the 2016-2017 school year, respondent DSS argues that although it originally designated respondent AuSable Valley as the district of origin, “an amended [DSS 2999 form designating respondent Northeastern Clinton as the district of origin] was submitted on July 20, 2017, 10 days before the deadline to submit [a DSS 2999 form] for the 2016-2017 academic year” and, therefore, respondent Northeastern Clinton should be responsible for payment of the cost of the student’s tuition to petitioner.

First, I must address a procedural matter.  Petitioner and the school district respondents submitted replies in this matter.  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 replies, 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.

The appeal must be dismissed, in part, as untimely.  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 Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  As previous Commissioner’s decisions have held, claims for foster care tuition payments pursuant to Education Law §3202(4)(a) relating to a particular school year become due at the completion of that school year, and any appeal must be commenced within 30 days of the end of the school year to be timely (Appeal of the Board of Education of the Dansville Central School District, 56 Ed Dept Rep, Decision No. 17,046; Appeal of the Board of Education of the Town of Webb Union Free School District, 40 id. 449, Decision No. 14,524; Appeal of the Sole Trustee of the Hickory-South Mountain Common School District No. 1, 38 id. 577, Decision No. 14,097).  Petitioner commenced this appeal on July 28, 2017, which is well beyond the 30-day time limitation for the 2013-2014 and 2015-2016 school years.  Petitioner nevertheless argues that its untimeliness should be excused because the DSS 2999 form identifying respondent Northeastern Clinton as the district of origin “was only issued on July 20, 2017 ....”  However, petitioner admits in the petition that “[i]n 2012, DSS provided Plattsburgh with a copy of an [DSS 2999 form] which indicated that [the student’s] school district of origin was the AuSable Valley Central School District.”  The fact that respondent DSS purported to issue a “revised” DSS 2999 form – which, as explained below, was ultra vires and had no legal effect – is not relevant to petitioner’s failure to commence a timely appeal with respect to respondent AuSable Valley’s responsibility for the student’s tuition for the 2013-2014 and 2015-2016 school years.  Therefore, petitioner’s claims regarding the 2013-2014 and 2015-2016 school years must be dismissed as untimely.  However, petitioner’s appeal was commenced within 30 days of the end of the 2016-2017 school year; therefore, to the extent that petitioner seeks reimbursement for the 2016-2017 school year, such claim is timely and is addressed below.

At the time this appeal was commenced,[9]  Education Law §3202(4)(b) provided, 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 placement, support and maintenance of such pupil ....

Education Law §3202(4)(f) governs the procedure by which the school district of origin shall be established.  Within ten days of its receipt of the designation, a board of education of a school district may submit to the public agency – in this case, respondent DSS – additional evidence to establish that it is not the student’s district of origin.  The public agency then has five days from the submission of additional evidence to make a final determination.

In the event such school district fails to submit additional evidence within such ten-day period, the determination of the public agency shall be final and the notification shall be deemed final notification of such determination (Education Law §3202(4)(f)[ii]).

The record before me indicates that, during the 2016-2017 school year, the student’s district of origin was governed by a 2012 determination by respondent DSS that notified respondent AuSable Valley that it was the student’s district of origin.  The evidence in the record concerning mailing and receipt of the 2012 DSS 2999 form is unclear.  Petitioner asserts that it received a copy of the DSS 2999 form in “2012.”  The DSS 2999 form indicates that a copy was, or was intended to be, sent to both the “School District Child now attending” (i.e., petitioner) and the “School District Child resided in when child entered Foster Care” (i.e., respondent AuSable Valley).  The DSS 2999 form also indicates that respondent DSS is obligated to make a residency determination within 10 days of the “foster child’s admission to school.”  Respondent AuSable Valley refers to the DSS 2999 form as a “2012 LDSSS [sic]” in its answer and indicates, in an affidavit from its school business executive, that it “received the LDSS-2999 Form for [the student] ... between August 14, 2012 and August 13, 2013.”  Respondent DSS does not address the issue directly in its papers, but states:

At the commencement of each school year, in addition to the submission of the [DSS 2999 form] in July of each year, the CCDSS’[s] policy and procedure is to send a letter to the school district of origin informing them of where the children they are responsible for are attending school.  That procedure was followed in each of the school years in question.

Absent contrary evidence in the record, I cannot conclude that respondent DSS failed to follow the statutory timeframe, recited on the face of the form itself, in generating and submitting copies of its written residency determination to petitioner and respondent AuSable Valley.  Petitioner’s representation that it received the DSS 2999 form sometime in 2012 generally corroborates that the form was received in 2012.  Although respondent AuSable Valley indicates that it received the DSS 2999 form sometime within the span of an entire year, it does not explain the basis for such assertion.  Moreover, even if I were to accept respondent AuSable Valley’s broad estimate of the timing of receipt, there is no basis in the record to pick any particular day within the timeframe it identified as the date of receipt.  Therefore, while the evidence in the record is far from clear, I find that the record indicates that respondent DSS issued the DSS 2999 form to petitioner and respondent AuSable Valley sometime in 2012.  Thus, on this record, I cannot find that respondent AuSable Valley’s attempt to challenge this determination by letter dated August 21, 2013 was within the ten-day period prescribed by Education Law §3202(4)(f)(ii), even assuming that the DSS 2999 form was received on December 31, 2012 (i.e., the last day of 2012).  Consequently, the decision made by respondent DSS designating respondent AuSable Valley as the district of origin in 2012 is final (Appeal of the Board of Education of the Dansville Central School District, 56 Ed Dept Rep, Decision No. 17,046).

Although respondent DSS apparently reconsidered its determination and subsequently purported to re-designate respondent Northeastern Clinton as the district of origin, such action was ultra vires and without legal effect (Appeal of the Board of Education of the Dansville Central School District, 56 Ed Dept Rep, Decision No. 17,046).  Once respondent DSS designated respondent AuSable Valley as the student’s district of origin, respondent AuSable Valley’s sole recourse was to bring an appeal to the Commissioner within 30 days of the end of the 2012-2013 school year, which it did not do.  Although I agree with respondent Northeastern Clinton that respondent DSS erred by attempting to modify its final determination made in 2012, such modification does not authorize the Commissioner to shift fiscal responsibility to respondent DSS (Appeal of the Board of Education of the Dansville Central School District, 56 Ed Dept Rep, Decision No. 17,046).

Accordingly, for the reasons outlined above, I find that respondent AuSable Valley is the student’s district of origin and, therefore, responsible for payment of the student’s tuition for the 2016-2017 school year.  In light of this determination, I need not address the parties’ remaining contentions.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent AuSable Valley pay petitioner for tuition costs incurred by petitioner for educating the student during the 2016-2017 school year.

END OF FILE