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Decision No. 17,713

Appeal of the BOARD OF EDUCATION OF THE MENANDS UNION FREE SCHOOL DISTRICT, from action of the Albany County Department for Children, Youth & Families, the Board of Education of the Guilderland Central School District, the Board of Education of the City School District of the City of Albany and the Board of Education of the City School District of the City of Rensselaer regarding tuition reimbursement.

Decision No. 17,713

(July 26, 2019)

Guercio & Guercio, LLP, attorneys for petitioner, Frank G. Barile, Esq., of counsel

Office of the County Attorney, attorneys for respondent Albany County Department for Children, Youth & Families, John W. Liguori and Peter D. Apostol, Esqs., of counsel

Honeywell Law Firm, PLLC, attorneys for respondents Guilderland Central School District, City School District of the City of Albany, and City School District of the City of Rensselaer, Paul M. Aloy and Kate S. Howard, Esqs., of counsel

ELIA., Commissioner.--The Board of Education of the Menands Union Free School District (“petitioner”) appeals respondent Albany County Department for Children, Youth & Families’ (“respondent DCYF”) designation of the Menands Union Free School District as the “district of origin” and thus as responsible for the payment of tuition for a student in foster care (“the student”) who is attending school in the Guilderland Central School District (“respondent Guilderland”).  Petitioner alleges that respondent Guilderland, respondent City School District of the City of Albany (“respondent Albany”), or respondent City School District of the City of Rensselaer (“respondent Rensselaer”) is the actual “district of residence”[1] under Education Law §3202(4).[2]  Petitioner also alleges that DCYF is fiscally responsible for tuition expenses for 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 (i.e., the “district of residence”), failed to provide timely notice of such determination, and failed to render its final determination after petitioner’s objection to such designation in a timely manner.  The appeal must be sustained.

The facts in this appeal are largely undisputed.  DCYF asserts that it was unable to determine the residence of the student’s mother while he was under the care of his mother during his first few years of life.  Sometime prior to February 2016, the Rensselaer County Family Court removed the student from the custody of his mother and named a guardian to care for him.[3]  At the time of her appointment, the guardian resided in Rensselaer County, but she lost her residence shortly after the appointment.  On or about February 25, 2016, the guardian and the student were living in a homeless shelter within the boundaries of petitioner’s school district when respondent DCYF removed the student from the guardian’s care and placed him in a foster home within respondent Guilderland’s district.  The student was not yet five years old when he was placed in foster care.

The student reached age five in December 2016, and his foster parent enrolled him in kindergarten in respondent Guilderland’s schools in the fall of 2017.  At respondent Guilderland’s request, respondent DCYF provided a School District Notification of Foster Child Placed in a Foster Family, Agency Boarding, or Group Home form (“LDSS-2999”) on September 17, 2017.  No school district of residence was listed on the initial LDSS-2999, nor was a copy provided to petitioner.  Noting that no school district of residence had been listed on the original LDSS-2999, respondent Guilderland requested an updated LDSS-2999 in March 2018.  On April 18, 2018, respondent DCYF provided an updated LDSS-2999, this time designating petitioner as the school district of residence; however, respondent DCYF again failed to provide the form to petitioner.

Respondent Guilderland billed petitioner for the student’s 2017-2018 tuition on April 18, 2018, enclosing a copy of the revised LDSS-2999 with the tuition invoice.  Petitioner received the invoice and LDSS-2999 on April 25, 2018.  This was petitioner’s first notice that it had been designated the student’s school district of residence, a full seven months after the student began attending respondent Guilderland’s schools and over two years after the student was placed in foster care.  On May 1, 2018, petitioner’s executive secretary contacted both respondent Guilderland and respondent DCYF to dispute respondent DCYF’s designation of petitioner as the school district of residence.

Several months of sporadic communications ensued between petitioner, respondent Guilderland, and respondent DCYF.  In turns, the DCYF special education specialist, who was responsible for generating the LDSS-2999, opined that respondent Guilderland, respondent Rensselaer, and/or respondent Albany should be designated the school district of residence, but she never corrected the LDSS-2999 and, by her own admission, never issued a final determination on the issue.  During this time, respondent Guilderland billed petitioner twice more without payment.  Petitioner persisted in asserting that it was not the district of residence and in its refusal to pay respondent Guilderland.

Finally, on October 25, 2018, in response to petitioner’s repeated requests for a final determination and change to the LDSS-2999, DCYF sent an email to petitioner stating that if petitioner believed it should not be designated as the school district of residence, petitioner could file an appeal with the Commissioner of Education under Education Law §310.  This appeal ensued.  Petitioner served all respondents on November 20, 2018.

Petitioner argues that the student’s physical presence in a homeless shelter within petitioner’s district in 2016 did not establish residency.  Petitioner further contends that, even if residency had been established, the student was too young for the obligations under Education Law §3202(4) to attach because the law applies to children “over five and under twenty-one years of age,” and the student was below the age of five when he was removed from his guardian’s care and placed in the foster home.  Finally, petitioner argues that I should assign financial responsibility for the student’s tuition to respondent DCYF, because it failed to make reasonable efforts to identify the student’s district of residence, failed to timely notify petitioner that it had been designated as the school district of residence, and failed to make a timely final determination when petitioner protested the designation.

Respondent DCYF argues that the appeal is untimely, that DCYF acted properly, and even if it did not, that DCYF has governmental immunity or, alternatively, that its actions were privileged, that petitioner failed to meet its burden of proof and failed to exhaust administrative remedies, and finally that one of the school district parties should be financially responsible for the student’s tuition, but DCYF should not.

Respondents Guilderland, Albany, and Rensselaer, who are all represented by the same counsel, argue that the appeal is untimely, that Guilderland should be granted an extension to file an appeal to the Commissioner seeking payment from petitioner, and that the appeal should be dismissed on the merits and for failure to join a necessary party.

I will first address the procedural matters.  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).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of C.S., 48 id. 497, Decision No. 15,929).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of K.W., 48 id. 451, Decision No. 15,912).

The version of Education Law §3202(4)(f) applicable at the time of the student’s placement in foster care sets forth the procedure for a public agency (here, respondent DCYF) to designate the school district of residence when a student is placed in foster care, for the district so designated to object to the designation, and for the public agency to make a final determination after the district has properly objected: within 10 days of placement of the child, the public agency shall give written notice of such placement to the board of education of the school district of residence (here, petitioner); within 10 days of its receipt of the designation, a board of education of a school district may submit to the public agency 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....”

This appeal was commenced on November 20, 2018.  A determination of timeliness regarding this appeal requires an analysis of whether the parties met their respective obligations under Education Law §3202(4):  respondent DCYF was required to provide the LDSS-2999 designating the district of residence to petitioner within 10 days of placing the student in foster care.  Petitioner would then have had 10 days from the receipt of the LDSS-2999 to dispute the designation and provide evidence that it was not the district of residence.  Respondent DCYF would then have had five days after the evidence was provided to provide a final determination in writing to petitioner.

Respondent DCYF placed the student in foster care on February 25, 2016.  However, respondent DCYF did not generate an LDSS-2999 until respondent Guilderland requested it in September 2017.  When respondent DCYF generated the LDSS-2999, it did not designate a district of residence as required.  Respondent DCYF did not generate an LDSS-2999 designating a district of residence until April 2018, more than two years after the student was placed in foster care and more than seven months after the student was admitted to respondent Guilderland’s schools.  Even after designating petitioner as the district of residence, respondent DCYF still failed to provide written notification to petitioner.  When respondent Guilderland notified petitioner that it had been designated as the student’s district of residence, petitioner properly disputed the designation within ten days as required under Education Law §3202(4)(f)(ii).  Respondent then failed to issue a final written determination within five days, as required under Education Law §3202(4)(f)(ii).  After months of requesting a final determination and receiving none, petitioner ultimately interpreted respondent DCYF’s October 25, 2018 email advising petitioner of its appeal rights under Education Law §310 as a final determination and commenced this appeal within 30 days of that date.  Although DCYF argues that the appeal is untimely because it was not commenced within 30 days of May 1, 2018, when petitioner’s executive secretary contacted DCYF to dispute the designation reported by respondent Guilderland, on this record I disagree.  As petitioner contends, it is not clear that respondent DCYF made a final determination in response to petitioner’s concerns until October 25, 2018, despite petitioner’s repeated requests for a final decision.  During this period, respondent DCYF failed to provide petitioner with written notice of its designation, which is the very purpose of the LDSS-2999 form, and under Education Law §3202(4)(f)(ii) triggers the opportunity for the designated school district to submit additional evidence prior to a final determination.  Respondent DCYF’s failure to meet any of its obligations under Education Law §3202(4)(f) does not strip petitioner of its rights under the statute.  I therefore decline to dismiss the appeal as untimely.

Respondent Guilderland’s request for an extension to file an appeal against petitioner for nonpayment must be denied.  Respondent Guilderland argues that it had no notice that petitioner would refuse to pay the student’s tuition until petitioner commenced this appeal.  However, petitioner notified respondents Guilderland and DCYF that it was disputing the designation on May 1, 2018.  Even if petitioner had not notified respondent Guilderland that it was disputing the designation, it is well-settled that claims for foster care tuition payments 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 Town of Webb Union Free School District, 40 Ed Dept Rep 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; Matter of Sanfilippo, 24 id. 81, Decision No. 11,323).  Respondent Guilderland seeks reimbursement for the 2017-2018 school year but failed to commence an appeal within 30 days of the end of the 2017-2018 school year.  Respondent Guilderland’s claim seeking payment for the 2017-2018 school year is untimely and respondent Guilderland has not provided a sufficient excuse for the delay.

Respondent DCYF’s arguments that the appeal must be dismissed as against DCYF because it has governmental immunity and/or that its actions are privileged are refuted by Education Law §3202(4)(f)(iv), which specifically contemplates an appeal to the Commissioner by the designated school district from the designation made by a social services district of a student’s school district of residence.  Moreover, Education Law §3202(4)(f)(vi) specifically authorizes the Commissioner to impose fiscal responsibility upon a social services district during the pendency of an appeal under certain circumstances.  Thus, respondent DCYF’s argument that it has governmental immunity from liability under Education Law §3202(4)(f) is belied by the statutory language.

To the extent that respondent DCYF raises failure to exhaust administrative remedies as an affirmative defense, it has produced no evidence or arguments to support this assertion and has therefore failed to carry its burden of establishing this affirmative defense (see Appeal of T.A., 58 Ed Dep Rep, Decision No. 17,443; Application of Simmons, 53 id., Decision No. 16,596).

Respondents’ final procedural argument is that the appeal should be dismissed for failure to join the proper school district.  However, Education Law §3202(4)(f)(iv) merely requires that the petitioner join as a party any school district which it suspects might be the student’s district of residence, which petitioner has done in this case.  Moreover, Education Law §3202(4)(f)(v) states that, should the Commissioner find that a district that is not a party to an appeal is the actual district of residence, the remedy in that case is that the Commissioner shall order the public agency to notify the proper school district that it is the district of residence.  Therefore, dismissal for non-joinder is not the proper remedy for failure to join an interested school district.

Turning to the merits, at the time of the events at issue in 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 ... 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).

“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).  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).

A residence is not lost until it is abandoned and another is established through action and intent (Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827).  A person’s temporary absence from a school district of residence does not necessarily constitute either the establishment of a residence in the district where one is temporarily located, or the abandonment of one’s permanent residence (Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827).

In an appeal to the Commissioner, the 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 (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).

To begin with, petitioner’s argument that the obligations under Education Law §3202(4) cannot attach if a child is under the age of five, which petitioner mischaracterizes as compulsory school age, is misplaced.  At issue in this appeal is petitioner’s fiscal responsibility for services provided by respondent Guilderland to the student in kindergarten in the 2017-2018 school year, where the student was under five years old when originally placed in foster care.  The issue of whether a school district of residence is responsible for the costs of a public preschool program is not before me in this appeal, though the definition of “school district of origin” added to Education Law §3202(4)(a) by Section 2 of Part CC of Chapter 56 of the Laws of 2018 makes it quite clear that the provisions of §3202(4) apply to students attending public preschools.  In any case, there was no language in Education Law §3202(4)(f), as it existed at the time of this appeal, that would support a finding that where a student was a preschool student when a social services district assumed responsibility for the placement, support, and maintenance of the student, there is no school district of residence fiscally responsible for educating the student, which is essentially what petitioner is arguing.  I reject such interpretation, which would thwart the intent of §3202(4)(f) by requiring the school district providing instruction to foster care children to absorb costs for students who were residents of another district when the social services district assumed responsibility for them merely because they were of preschool age at the time.  The interpretation more consistent with the intent of §3202(4)(f) is that the district fiscally responsible for services to a student in foster care is the district of the student’s residence at the time the social services district assumed responsibility, regardless of whether the student was of preschool age or school age on that date.

On this record, respondent DCYF based its determination that petitioner is the student’s district of residence solely upon the fact that, at the time respondent DCYF assumed responsibility for the placement, support, and maintenance of the student, the student and his guardian were homeless and were placed by respondent DCYF in a hotel or motel located in petitioner’s school district.  Under Education Law §3209(1)(a), a student placed in a hotel or motel due to the lack of alternative adequate accommodations is a “homeless child” because he “lacks a fixed, regular and adequate nighttime residence.”  Such a placement is temporary or transitional in nature (see Education Law §3209[1][d]) and cannot meet the test for determining the permanent residence or domicile of the student and his guardian.  The guardian and the student, while physically present in the hotel or motel in petitioner’s district, which was serving as a homeless shelter, had no intent to remain there and thus did not establish a new residence in petitioner’s district.

Therefore, respondent DCYF had no basis for determining that petitioner was the school district of residence of the student.  At most, petitioner could have been the “school district of current location” of the student as defined in Education Law §3209(1)(d), and could have been responsible for providing instruction to the student if his guardian had designated petitioner as his school district of attendance pursuant to Education Law §3209(2).  However, the record indicates that petitioner did not operate a public preschool program at the time the student and his guardian became homeless, and there is no evidence in the record that such a designation was made.  Even if it had been made, designation of the district of current location as the district the student attends does not make such district the district of residence responsible for paying the cost of instruction.  To the contrary, Education Law §3209(3)(a) and (b) provide for State reimbursement of the costs of instruction incurred by the district of current location in the first instance and impose fiscal responsibility on the district of origin to reimburse the State.

Respondent DCYF’s obligation, therefore, was to determine which school district was the last school district in which the student and his parent or guardian were permanently housed; in other words, which school district was the “school district of origin” as defined in Education Law §3209(1)(c).  Respondent DCYF asserts that it was unable to determine the district of residence of the student’s mother because she had no accurate record of her housing.  However, the record indicates that a subsequent event, the appointment of a guardian and the transfer of custody to the guardian by Rensselaer Family Court (“court”), makes the mother’s residence irrelevant.[4]  Although the date of the court’s guardianship order is not before me, DCYF has presented evidence that the court placed the student under the guardian’s custody prior to February 2016, when respondent DCYF removed the student and placed him in a foster home in respondent Guilderland’s district.

The record contains no allegations that the student’s placement with the guardian was not intended to be a permanent residence or that the guardian did not exercise complete control over the student’s support and custody.  Respondent DCYF’s special education specialist, who was responsible for determining the student’s district of residence, attests in her affidavit that following the appointment by the court, the guardian “maintained a household in Rensselaer County,” albeit for “only a few short months.”  At the time the student was placed with the guardian, therefore, the guardian had an established residence in Rensselaer County, which could have been easily ascertained by DCYF.  The school district in which the guardian resided would be the student’s school district of residence, since both the guardian and the student were physically present in Rensselaer County with an intent to remain.  Therefore, from the court’s initial placement of the student with the guardian, the student’s residence became that of the guardian in Rensselaer County.[5]  It is irrelevant that the guardian lost her residence a few months after the guardianship proceeding.  “An existing [residence] is assumed to continue until a new one is acquired” by physical presence and an intent to remain in the new residence (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385, 388).  Therefore, I find that the school district in which the guardian resided at the time she became homeless, which presumably is the school district in which she resided when she was awarded custody of the student, is the student’s district of residence.

Since I have determined that petitioner, the school district identified in the written notice pursuant to Education Law §3202(4)(f)(i), was not the student’s school district of residence, and there is no proof that the correct school district was joined in this appeal, pursuant to Education Law §3202(4)(f)(v), I must direct respondent DCYF to identify the correct school district as the school district of origin[6] in accordance with this decision.

Finally, I must address petitioner’s and respondent Guilderland’s contention that respondent DCYF failed to meet its obligations under Education Law §3202(4)(f) and should be responsible for the student’s tuition.  Education Law §3202(4)(f)(vi) authorizes the Commissioner to assign financial responsibility during the pendency of all proceedings, or for the duration of the current school  year, whichever is longer, 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.  Respondent DCYF has provided little evidence of its efforts to ascertain the student’s district of residence.  Other than asserting that its special education specialist consulted with State Education Department staff during the six months from April 2018 to October 2018, respondent DCYF has provided no evidence of how it responded when petitioner correctly pointed out that a temporary placement of a homeless student in a hotel or motel does not effect a change in the permanent residence of the student.  There is no evidence that respondent DCYF ever considered the school district of residence of the guardian, even though it knew that the guardian, who had custody and control of the student, had maintained a household in Rensselaer County months before the guardian became homeless.  There is no evidence that respondent DCYF ever identified the school district of residence of the guardian and shared that information with petitioner, even though it should have been obvious that such school district could have been the student’s district of residence.  Moreover, it is clear from the record that respondent DCYF failed to generate the LDSS-2999 for over a year until prompted to do so by respondent Guilderland, failed to notify petitioner that it had been designated the school district of residence at any time, and failed to make a final determination in a timely manner after petitioner objected to the designation, all in direct violation of its obligations under Education Law §3202(4)(f).

Viewing the record as a whole, I am not persuaded that respondent DCYF made reasonable efforts to determine the district of residence of the student, as respondent DCYF contends.  Through its repeated failure to comply with the requirements of Education Law §3202(4)(f) and its failure to even consider that the correct school district of residence might be the permanent residence of the guardian before she became homeless, respondent caused substantial delays in the identification of the student’s school district of residence that are extremely prejudicial to the school districts involved, particularly to respondent Guilderland.  Under the circumstances, I determine that respondent DCYF did not make reasonable efforts to identify the district of residence of the student.  Accordingly, I will assign fiscal responsibility to respondent DCYF during the pendency of this appeal and I will direct respondent DCYF to pay the student’s tuition from September 2017 through the date of this decision to respondent Guilderland.

In light of this determination, I need not address the parties’ remaining contentions.

THE APPEAL IS SUSTAINED.

IT IS FURTHER ORDERED that respondent DCYF shall pay respondent Guilderland for its tuition costs incurred in educating the student from September 2017 through the date of this decision.

END OF FILE

 

[1] The version of Education Law §3202(4) applicable at the time of the student’s placement in foster care (see footnote 2) uses the term “district of residence” as defined in subparagraph (4)(a) in determining the school district fiscally responsible for the costs of educating children in foster care.  The current version of Education Law §3202(4) uses the term “district of origin.”  The parties are correct in asserting that while the term has been updated, the underlying process for determining which district is financially responsible for the student’s tuition remains the same in both versions of the statute.

 

[2] Because the facts underlying this dispute arose prior to the April 12, 2018 effective date of the amendments of Education Law §3202(4) by Section 2 of Part CC of Chapter 56 of the Laws of 2018 (the student was placed in foster care on February 25, 2016), the version of the statute which was effective as of April 13, 2015 applies, except as otherwise noted.

 

[3] While it appears that DCYF’s Special Education Specialist was aware of the Rensselaer County Family Court order establishing guardianship over the student, the order has not been submitted here as part of the record.

 

[4] The definition of a “person in parental relation” in Education Law §2(10) includes a legally appointed guardian who lawfully has care, custody and control of a child, as well as the natural parent.  Thus, a guardian has the rights and responsibilities of a parent or other person in parental relation under the Education Law (see e.g. Education Law §3212).  Thus, the presumption that a student resides with his parent applies equally to a legally appointed guardian (see e.g. Appeal of Healy and Lindberg, 57 Ed Dept Rep, Decision No. 17,193; Appeal of Polynice, 48 id. 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773).

 

[5] The record does not indicate in which school district the guardian resided within Rensselaer County.

 

[6] Since the written notice identifying the correct school district will restart the process of identifying the student’s district of residence, the provisions of Education Law §3202(4), as amended by Section 2 of Chapter 56 of the Laws of 2018, will apply, and the written notice should identify the district of origin.