Appeal of the BOARD OF EDUCATION OF THE GUILDERLAND CENTRAL SCHOOL DISTRICT from action of the Albany County Department for Children, Youth & Families and the Board of Education of the Menands Union Free School District regarding tuition reimbursement.

Decision No. 17,960

(January 25, 2021)

Honeywell Law Firm, PLLC, attorneys for petitioner, Paul M. Aloy, 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

Guercio & Guercio, LLP, attorneys for respondent Board of Education of the Menands Union Free School District, Frank G. Barile, Esq., of counsel

ROSA., Interim Commissioner.--Petitioner appeals the refusal of the Board of Education of the Menands Union Free School District (“respondent Menands”) to reimburse it for the tuition of a foster care student (“the student”) for the 2018-2019 school year.  In the alternative, petitioner seeks tuition reimbursement from the Albany County Department for Children, Youth and Families (“respondent DCYF”).  The appeal must be dismissed.

On March 27, 2017, respondent DCYF removed the student from her mother’s custody and placed her in foster care.  The student and her mother had previously resided at a homeless shelter within respondent Menands’s district.  

After an initial, temporary placement, respondent DCYF placed the student with a foster family in petitioner’s district.  On or about August 28, 2017, respondent DCYF provided petitioner with a form entitled “School District Notification of Foster Child Placed in a Foster Family, Agency Boarding, or Group Home” (“LDSS-2999 form”).  The LDSS-2999 form designated respondent Menands as the school district where the student resided when placed in foster care (the “school district of origin”); however, there is no evidence in the record that respondent DCYF provided respondent Menands with a copy of the LDSS-2999 form, as required by Education Law §3202(4).[1]

The student began attending school in petitioner’s district in August 2018.  On January 8, 2019, petitioner submitted an invoice to respondent Menands seeking reimbursement for the student’s tuition costs for the 2018-2019 school year.[2]  Petitioner included a copy of the LDSS-2999 form with the invoice.  

On January 16, 2019, respondent Menands’s superintendent wrote to respondent DCYF, copying petitioner’s superintendent, and objected to the district’s designation as the student’s school district of origin.  Respondent Menands asserted that it had not been properly or timely notified of its designation as such and that it had not received the LDSS-2999 form prior to petitioner’s January 8, 2019 invoice.  There is no indication in the record that respondent DCYF responded to respondent Menands’s letter.

Petitioner submitted two additional invoices to respondent Menands on April 17, 2019 and June 18, 2019, seeking reimbursement for the student’s tuition for the 2018-2019 school year.  Respondent Menands did not issue any payment in response to these invoices.  This appeal ensued.

Petitioner argues that respondent Menands is responsible for the student’s tuition because the student was residing within respondent Menands’s district prior to her placement in foster care and the LDSS-2999 form designated respondent Menands as the student’s district of origin.  Petitioner argues in the alternative that, if respondent Menands is not responsible for the student’s tuition, respondent DCYF is responsible for such cost due to its failure to make reasonable efforts to determine the correct school district of origin or to render “a final determination” in response to respondent Menands’s January 16, 2019 letter.  Finally, petitioner argues that it has established good cause for filing the instant appeal more than 30 days after the end of the 2018-2019 school year.  Petitioner seeks an order directing respondent Menands to reimburse it for the student’s tuition costs for the 2018-2019 school year or, in the alternative, assigning financial responsibility to respondent DCYF.

Respondent Menands argues that the appeal is untimely, that it was incorrectly designated as the student’s school district of origin, and that respondent DCYF should be held financially responsible for the student’s tuition because it failed to make reasonable efforts to determine the school district of origin or to render a final determination after respondent Menands objected to its designation as the school district of origin.

Respondent DCYF argues that the appeal is untimely and that petitioner has failed to state a claim upon which relief may be granted.  Respondent DCYF further asserts that its identification of respondent Menands as the student’s district of origin in the August 2017 LDS-2999 form is final and binding and was made in good faith.

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).  It is well settled that claims for foster care tuition reimbursement pursuant to Education law §3202(4) relating to a particular school year become due at the completion of that school year, and an 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 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).  In New York, the school year begins on July 1; thus, the last day of the school year is June 30 (Education Law §2[15]).

Here, petitioner commenced this appeal seeking reimbursement for the 2018-2019 school year on August 15, 2019 – 46 days after the end of the school year on June 30, 2019.  Petitioner argues that it has demonstrated good cause for its delay because:  (1) it filed the appeal within 30 days of the Commissioner’s decision in a prior appeal involving the same parties (Appeal of the Board of Education of the Menands Union Free School District, 59 Ed Dept Rep, Decision No. 17,713); (2) respondent DCYF never issued a “final determination” in response to respondent Menands’s January 16, 2019 letter; and (3) its delay in commencing the appeal is not prejudicial to respondent Menands or respondent DCYF.

With respect to petitioner’s first argument, although this appeal involves some of the same parties and similar issues as Appeal of the Board of Education of the Menands Union Free School District (59 Ed Dept Rep, Decision No. 17,713), the instant appeal concerns a different child and a unique procedural history.  Indeed, because this appeal and the prior appeal arose out of different determinations and actions, the prior appeal has no preclusive effect on petitioner’s present claims.  Therefore, I do not find that the pendency of the similar yet distinct dispute in Appeal of the Board of Education of the Menands Union Free School District (59 Ed Dept Rep, Decision No. 17,713) extended petitioner’s time frame in which to commence this appeal.

Second, although the record reflects that respondent DCYF did not respond to respondent Menands’s January 16, 2019 letter, petitioner was aware that it would incur the cost of instructing the student as of August 2018, when the student enrolled in its schools (see Appeal of the Board of Education of the Ravena-Coeymans-Selkirk Central School District, 60 Ed Dept Rep, Decision No. 17,932).  Notably, despite respondent DCYF’s failure to respond to respondent Menands’s January 16, 2019 letter objecting to its designation as the student’s district of origin, petitioner continued to recognize respondent Menands as such and bill it for the student’s tuition in invoices dated April 17, 2019 and June 18, 2019.  Accordingly, I reject petitioner’s contention that respondent Menands’s January 16, 2019 letter or respondent DCYF’s lack of response thereto extended its time to seek reimbursement for the student’s tuition for the 2018-2019 school year (Appeal of the Board of Education of the Menands Union Free School District, 59 Ed Dept Rep, Decision No. 17,713).

Finally, petitioner claims that its delay in bringing the appeal has not prejudiced respondents.  As an initial matter, a purported lack of prejudice resulting from petitioner’s delay would not, in and of itself, constitute good cause for such delay.  In any event, because a decision on the merits could carry the consequence of financial liability for respondent DCYF and/or respondent Menands, I reject petitioner’s claim that respondents would not suffer any prejudice from excusing petitioner’s delay.  Furthermore, I note that petitioner is represented by counsel and that respondents expressly seek dismissal of the appeal as untimely (cf. Appeal of International Charter School of New York, 54 Ed Dept Rep, Decision No. 16,691 [noting that the respondent “fail(ed) to raise timeliness ... as an affirmative defense”]; Appeal of Lebron, Jr., 35 id. 359, Decision No. 13,570 [excusing a pro se petitioner’s untimely appeal based on a minimal delay]).  Because petitioner has not established good cause to disregard the well-established timeline for bringing an appeal concerning foster care tuition reimbursement, the appeal must be dismissed as untimely.

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

THE APPEAL IS DISMISSED.

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