Appeal of the BOARD OF EDUCATION OF THE KIRYAS JOEL UNION FREE SCHOOL DISTRICT from action of the Board of Education of the East Ramapo Central School District and the New York State Office for People With Developmental Disabilities regarding tuition reimbursement.

Decision No. 17,712

(July 26, 2019)

Shebitz Berman & Delforte, P.C., attorneys for petitioner, Jacob S. Claveloux and Matthew J. Delforte, Esqs., of counsel

Harris Beach PLLC, attorneys for respondent Board of Education of the East Ramapo Central School District, Douglas E. Gerhardt, Esq., of counsel

New York State Office for People With Developmental Disabilities, Office of Counsel, Joseph K. Dier, Esq., of counsel

ELIA., Commissioner.--Petitioner challenges the failure of the New York State Office for People With Developmental Disabilities (“OPWDD” or “respondent OPWDD”) to reimburse it for the cost of tuition for a student who was placed by OPWDD in a family care home (“the student”) located within its boundaries for a portion of the 2017-2018 school year.  In the alternative, petitioner seeks a declaration and order that the Board of Education of the East Ramapo Central School District (“East Ramapo” or “respondent East Ramapo”) is the district in which the student resided at the time the student was placed in the family care home and therefore fiscally responsible for the student’s tuition.  The appeal must be sustained in part.

The record indicates that, on December 11, 2017, the student was placed by respondent OPWDD in a family care home[1] located within petitioner’s school district.  By letter and form titled “School District Notification of Child Placed in an Office for People With Developmental Disabilities Program” (“notification form”) dated January 9, 2018, respondent OPWDD notified respondent East Ramapo that it was the district where the student lived at the time the student was approved and placed in an agency-sponsored family care home.  The letter further notified petitioner that it would be responsible for providing educational services to the student because the family care home was located within its geographical boundaries.

By letter dated January 29, 2018, petitioner’s treasurer notified respondent East Ramapo that it was the district in which the student resided at the time the student was placed in the family care home and, therefore, was responsible for the cost of the student’s instruction.  The letter stated that, based upon an “approved agreement”[2] between petitioner and respondent East Ramapo, the “tuition rate for FY 2017-2018” was $76,540.

By letter dated March 14, 2018, respondent East Ramapo replied to petitioner, arguing that respondent OPWDD was financially liable for the student’s tuition for the 2017-2018 school year because it failed to provide timely notification of its residency determination pursuant to Education Law §3202(4)(f)[3] and OPWDD[4] guidance.  Respondent East Ramapo also disputed its designation as the district of residence because its registration and transportation offices did not have any records related to the student, and the only proof that the student resided in East Ramapo prior to his placement in a family care home was a telephone bill dated August 13, 2017.  This appeal ensued.

Petitioner contends that respondent East Ramapo is the student’s district of residence because respondent OPWDD so found in a notice dated January 9, 2018, and respondent East Ramapo failed to challenge this notice within 10 days.  Petitioner requests a determination that respondent OPWDD is obligated to reimburse petitioner for the cost of educating the student pursuant to the terms of a non-resident tuition agreement between respondent East Ramapo and petitioner.  In the alternative, petitioner seeks a determination that respondent East Ramapo is obligated to reimburse petitioner for the cost of educating the student in accordance with the parties’ non-resident tuition agreement.

Respondent East Ramapo argues that the appeal must be dismissed as untimely.  It also argues that, because respondent OPWDD failed to provide timely notice of its residency determination in accordance with Education Law §3202(4)(f)(iv), respondent OPWDD is financially responsible for the student’s education.  In any event, respondent East Ramapo contends that the student did not reside in its district at the time of placement and, therefore, it was not the district financially responsible for the student’s education.

Respondent OPWDD argues that the appeal must be dismissed for lack of jurisdiction, for lack of standing, and as not ripe for review.  Respondent OPWDD further argues that Education Law §3202(4) does not apply to OPWDD family care placements.  It also argues that the ten-day notification period in Education Law §3202(4)(f)(i) is “directory” rather than mandatory, and that respondent East Ramapo is responsible for the student’s tuition for the 2017-2018 school year because it did not appeal OPWDD’s January 9, 2018 notification.  In the alternative, respondent OPWDD argues that petitioner was both the student’s school district of residence and location, thus rendering it responsible for the student’s tuition.  Finally, respondent OPWDD argues that if it is deemed financially responsible for the student’s tuition, the finding should be limited to the 2017-2018 school year because petitioner “needlessly extended this appeal” when it “unreasonably rejected” respondent OPWDD’s offer to settle the matter by paying the student’s tuition costs for the 2017-2018 school year.

I must first address several preliminary issues.  Petitioner submitted a reply in this matter together with an accompanying affidavit.  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.

Next, respondent East Ramapo argues that the appeal must be dismissed 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).  This appeal was commenced by personal service of the petition on April 18, 2018.  As previous Commissioner’s decisions have held, claims for tuition payments pursuant to Education Law §3204(4) relating to a particular school year become due at the completion of that school year, and an appeal need only 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).  In its request for relief herein, petitioner requests reimbursement for the student’s tuition for the 2017-2018 school year.  Therefore, since the appeal was commenced before the 2017-2018 school year ended, the appeal is timely.

Respondent OPWDD contends that I lack jurisdiction over OPWDD in this appeal because appeals pursuant to Education Law §310 lie only from the actions of school districts and associated entities and individuals, not New York State agencies.  However, this appeal arises within the context of Education Law §3202(4), which governs tuition reimbursement disputes arising from the placement of children in free family homes and children cared for in family homes at board.

At all times relevant to this appeal, Education Law §3202(4)(a) provided, in pertinent part:

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

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]).

Education Law §3202(4)(f)(iv) further defines such “proceedings” as appeals “conducted in the same manner as an appeal from the actions of local school officials pursuant to section three hundred ten of this chapter” (Education Law §3202[4][f][iv]).  These provisions, therefore, directly contemplate that public agencies, such as OPWDD, are subject to the Commissioner’s jurisdiction in an appeal pursuant to Education Law §310 concerning financial responsibility for the tuition of students in free family homes and children cared for in family homes at board (see Appeal of the Board of Education of the Cherry Valley-Springfield Central School District, 49 Ed Dept Rep 397, Decision No. 16,061 app. to reopen denied, Application to reopen the Appeal of the Board of Education of the Cherry Valley-Springfield Central School District, 50 id., Decision No. 16,137 [county department of social services that placed student in foster care was necessary party in dispute regarding residency pursuant to Education Law §3202[4] and school district’s failure to join such agency warranted dismissal of proceeding]).[5]  Accordingly, respondent OPWDD’s objection is without merit.

Respondent OPWDD also argues that Education Law §3202(4) does not apply to OPWDD family care placements.  While OPWDD cites no legal authority for this proposition, it claims that it is neither a social services district nor a department or agency and “does not make placements in ‘family homes at board’ as contemplated by Education Law §3202(4).”  However, respondent OPWDD’s position is inconsistent with the legislative history of Education Law §3202, State Education Department (“SED”) guidance and, as further explained below, respondent OPWDD’s “Family Care Manual” Policy 10.7.16 (“OPWDD’s policy”).

In 1973, the State Legislature amended Education Law §3202 to revise the statutory provisions concerning the responsibility for payment of tuition for children cared for in free family homes or family homes at board when such children are enrolled in regular public school classes in districts where such family homes are located.  The bill jacket includes a memorandum of support for the amendment from the Department of Mental Hygiene[6] in which the Department of Mental Hygiene stated that it “has a relatively small family care program as compared with those supervised by social services districts ...” (Bill Jacket, L 1973, ch 867).  The Department of Mental Hygiene did not suggest that it was exempt from the amendments, and its admission that it oversaw “a relatively small family care program” suggests the opposite.

Furthermore, Education Law §3202(4)(a) governs the cost of instruction for “pupils placed in family homes at board by a social services district or state department or agency....”  While the Education Law does not define the term “family homes at board,” an SED guidance document entitled “Education Responsibilities for School-Age Children in Residential Care”[7] explains that:

For purposes of education, this term as used in §3202.4 of the Education Law includes community residences, agency-operated boarding homes, group homes, foster homes, family-based treatment programs, family care homes, therapeutic foster homes, and family homes.

Additionally, the language of OPWDD’s policy regarding the dispute resolution process is consistent with both Education Law §3202(4) and SED’s guidance.  OPWDD’s policy describes the “School Notification Process for School Age Children Who Move Into A Family Care Home” and explains that the Developmental Disabilities Services Office (“DDSO”)[8] must inform both the school district in which the family care home is located and the district of residence within 10 days of a student’s placement in a family care home.  It then describes a dispute process whereby the notified school district of residence has 10 days to provide the DDSO with information indicating that it is not the district of residence and the DDSO must then make a final determination within five days of receipt of such notice.

The OPWDD policy further explains that “[i]f the notified school district of residence fails to send additional information within the ten-day period, then that school district will be considered the district of residence ....  A school district can appeal to the commissioner of the State Education Department (SED) and the SED commissioner will make a final determination.”

I further note that Education Law §3202(4)(f)(vii) provides that decisions of the Commissioner of Education concerning residency disputes under subdivision (4) may only be reviewed pursuant to Article 78 of the Civil Practice Law and Rules (“CPLR”), and that “[a] local social services commissioner or any other state department or agency placing pupils pursuant to [Education Law §3202(4)] is a proper party in any such appeal or proceeding” (Education Law §3202[4][f][vii]).  OPWDD’s interpretation of the statute would have the result of forcing the Commissioner of Education to decide residency disputes under Education Law §3202(4) without all proper parties and relevant evidence in the record, while at the same time permitting or requiring those agencies to participate in a subsequent appeal of the Commissioner’s determination pursuant to CPLR Article 78 during which such agencies could introduce new evidence and arguments that were not presented to the Commissioner.  This result would be contrary to judicial economy as well as to the rights of all parties in these disputes.  For all of these reasons, I find no merit to respondent OPWDD’s assertion that Education Law §3202(4) does not apply to OPWDD family care placements.

Turning to the merits, as noted above, 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 placement, support and maintenance of such pupil .... [emphasis added]

By letter dated January 9, 2018, respondent OPWDD designated respondent East Ramapo as the district in which the student resided when the student entered family care.  As noted above, pursuant to Education Law §3202(4)(f)(ii), 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 OPWDD, additional evidence to establish that it is not the student’s district of residence.  The public agency then has five days from the submission of additional evidence to make a final determination.  Education Law §3202(4)(f)(vi) further provides that, “[i]n the event the public agency fails to provide timely notice pursuant to subparagraph (i) of this paragraph, or fails to render its final determination in a timely manner, the public agency responsible for such pupil’s residential placement shall reimburse the commissioner for the payments made to the district furnishing instruction pursuant to this paragraph during the pendency of all proceedings or for the duration of the current school year, whichever is longer....”

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).

Petitioner and respondent East Ramapo argue that respondent OPWDD bears financial responsibility for the costs of the student’s placement because it failed to meet the statutory timeframe for identifying the student’s district of residence.  As indicated above, Education Law §3202(4)(f)(vi) authorizes the Commissioner to assign financial responsibility during the pendency of an appeal to a social services district upon a determination that the social services district failed to make reasonable efforts to identify the residence of the child.  Education Law §3202(4)(f)(vi) further provides that:

In the event the public agency fails to provide timely notice pursuant to subparagraph (i) of this paragraph, or fails to render its final determination in a timely manner, the public agency responsible for such pupil's residential placement shall reimburse the commissioner for the payments made to the district furnishing instruction pursuant to this paragraph during the pendency of all proceedings or for the duration of the current school year, whichever is longer ....

It is undisputed that respondent OPWDD failed to meet the 10-day deadline to identify the student’s district of residence.  Respondent OPWDD issued its determination on January 9, 2018, which was 29 days after the student was placed by respondent OPWDD in a family care home located within petitioner’s school district on December 11, 2017.

Respondent OPWDD has provided little evidence of its efforts to ascertain the student’s district of residence.  The only potential explanation for the delay was offered by respondent OPWDD’s community supports coordinator for the Hudson Valley district of OPWDD region 3 (“OPWDD coordinator”).  In an affidavit, the coordinator states that, after issuing a document required by the New York State Department of Health to “confirm [home and community-based services] [w]aiver [] enrollment,” OPWDD “soon thereafter discovered an issue regarding [the student’s] Medicaid status.”  Apparently, the coordinator was unable to change an electronic billing code in an electronic database to reflect the fact that the student “was receiving Medicaid through the New York State of Health’s Insurance Exchange.”  According to the coordinator, a non-profit agency which provides services to individuals with disabilities was able to complete “the transfer process on [the student’s] behalf” and notified respondent OPWDD that it did so on January 9, 2018.  Respondent OPWDD sent the notice identifying respondent East Ramapo as the student’s district of residence that same day.

Respondent OPWDD has not explained how this administrative confusion over the student’s Medicaid billing status caused it to delay issuance of its residency determination.  “Residence” is established by one’s physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320).  There is no evidence in the record suggesting that the challenges respondent OPWDD encountered in assigning the correct Medicaid billing code to the student related, in any way, to a determination of where the student physically resided or intended to reside.  Therefore, on this record, I am constrained to find that respondent OPWDD failed to make reasonable efforts to identify the district of residence of the student.

This interpretation is bolstered by the language of OPWDD’s policy, discussed above, in which OPWDD indicates that it “will be fiscally liable” for the cost of a student’s placement “if [it] ... fails”:

a. to make a reasonable effort to identify the appropriate district of residence of the child.

b. to provide timely notice to the school district, or

c. to make a final determination in a timely manner.

This policy document is not a regulation or other agency document which carries the force of law and, thus, cannot bind the agency (United States v. Mead Corp., 533 US 218).  Nevertheless, I agree with petitioner and respondent East Ramapo that this policy document unambiguously states that OPWDD “will be fiscally liable” if it fails “to provide timely notice to the school district,” which is consistent with my determination that respondent OPWDD is fiscally responsible for the costs of the student’s placement during the pendency of this appeal.

Thus, viewing the record as a whole, I am not persuaded that respondent OPWDD exercised due diligence in determining the district of residence of the student, as it contends.  Under these circumstances, I determine that respondent OPWDD did not make reasonable efforts to identify the district of residence of the student.  Accordingly, I will assign fiscal responsibility to respondent OPWDD during the pendency of this appeal.

However, I decline to assign financial responsibility to respondent OPWDD following the date of this decision because, despite respondent OPWDD’s delay, Education Law §3202(4)(f)(ii) provides that, within 10 days of receipt of such notice, the designated district may submit to the agency additional evidence to establish that it is not the student’s district of residence.  If the district fails to submit such information, the social services agency’s determination becomes final (Education Law §3202[4][f][ii]; see Appeal of the Board of Education of the Dansville Central School District, 56 Ed Dept Rep, Decision No. 17,046).  There is no evidence on this record that respondent East Ramapo took any action to challenge respondent OPWDD’s determination.  Indeed, respondent East Ramapo only elected to challenge its designation after petitioner – which is aggrieved because it is paying the costs associated with the student’s schooling – commenced a timely appeal challenging respondent East Ramapo’s refusal to reimburse it.[9]  Because respondent East Ramapo failed to challenge respondent OPWDD’s determination, I find that it is estopped from challenging its designation as the student’s school district of residence in this appeal.

The record reflects that respondent East Ramapo did not follow the statutory process for objecting to its designation which is inconsistent with the tuition reimbursement procedure pursuant to Education Law §3202(4), the goal of which is to raise and resolve objections concerning a student’s district of residence in a prompt manner at the local level.  Moreover, as indicated above, financial responsibility during the pendency of an appeal to the Commissioner of Education rests upon a determination as to whether a social services agency made reasonable efforts to identify the district of residence of the student (Education Law §3202[4][f][vi]).  Whether or not a social services agency has made such efforts must be determined in an appeal pursuant to Education Law §310, not unilaterally by a school district which received a late determination of residency.  To allow respondent East Ramapo to raise its objections in this appeal after it ignored the statutory procedure would be inequitable.

Given the above determinations, I need not, for the purposes of this appeal, determine the student’s district of residence.  However, I note in this respect that a child’s residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320).  The presumption that a child resides with his or her parents or legal guardians can be rebutted upon a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing in the district (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).  While it is not necessary to establish parental custody and control through a formal guardianship proceeding, it is necessary to demonstrate that a particular location is a child’s permanent residence and that the individual exercising control has full authority and responsibility with respect to the child’s support and custody (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).  Here, the parties agree that the student’s parents resided in East Ramapo at the time the student was placed in family care by OPWDD.  While the student appears to have been physically present in petitioner’s district at the time he was placed in family care, there is no evidence on this record that the student’s parents effected a total and permanent transfer of custody and control of the student to another.  Therefore, the limited evidence in the record suggests that the student’s residence is that of his parents, both of whom resided within respondent East Ramapo’s district at the time of designation.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent OPWDD pay petitioner for any and all tuition costs incurred by petitioner for educating the student since the student’s placement within petitioner’s district on December 11, 2017 through the date of this decision.

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