Decision No. 18,114
Appeal of the BOARD OF EDUCATION OF THE RAVENA-COEYMANS-SELKIRK CENTRAL SCHOOL DISTRICT from action of the Board of Education of the Catskill Central School District, the Board of Education of the Cairo-Durham Central School District, and the Greene County Department of Social Services regarding tuition reimbursement.
Decision No. 18,114
(April 25, 2022)
Girvin & Ferlazzo, PC, attorneys for petitioner, Tara L. Moffett, Esq., of counsel
Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP, attorneys for respondent Board of Education of the Catskill Central School District, Edward J. Sarzynski, Esq., of counsel
The Honeywell Law Firm, PLLC, attorneys for respondent Board of Education of the Cairo-Durham Central School District, Paul M. Aloy, Esq., of counsel
Greene County Office of the County Attorney, attorneys for respondent Greene County Department of Social Services, Edward I. Kaplan, Esq., of counsel
ROSA., Commissioner.--This decision is issued pursuant to an order of remand by Supreme Court, Albany County. It began as an appeal to the Commissioner under Education Law § 310 filed by the Board of Education of the Ravena-Coeymans-Selkirk Central School District (“Ravena”) (Appeal of the Board of Education of the Ravena-Coeymans-Selkirk Central School District, 60 Ed Dept Rep, Decision No. 17,932). In that appeal, Ravena challenged the refusal of the Board of Education of the Catskill Central School District (“Catskill”) to pay for tuition costs incurred by Ravena for educating three foster care students (“the students”) during the 2016-2017, 2017-2018, and 2018-2019 school years. By order dated October 10, 2019, I directed Ravena to join the Board of Education of the Cairo-Durham Central School District (“Cairo-Durham”), the school district that the Greene County Department of Social Services (“Greene County”) identified as the students’ school district of residence.
On October 15, 2020, I issued a decision sustaining the appeal in part (Appeal of the Board of Education of the Ravena-Coeymans-Selkirk Central School District, 60 Ed Dept Rep, Decision No. 17,932). The facts are recited in detail in that decision and need not be repeated here. For relief, I ordered Cairo-Durham to pay Ravena for any and all tuition costs that it incurred in educating the students during the 2018-2019 school year. Cairo-Durham sought review of this decision by commencing an Article 78 proceeding in Supreme Court, Albany County. In a Decision, Order, and Judgment dated November 22, 2021, the court annulled the decision and remitted the matter to me to fashion an appropriate remedy.
The clear import of the court’s decision is that Catskill, Greene County, or some combination thereof should be financially responsible for the costs of the students’ tuition. While I will issue relief accordingly, it is first necessary to place this dispute in factual and legal context.
The foster care reimbursement process is set forth in statute (Education Law § 3202  [f]). It is not, as the court suggested, concerned with ultimate truth; it instead imposes a series of obligations, presumptions, and deadlines to encourage the prompt identification of foster care students’ districts of residence. The process is:
- A social services agency identifies a student’s school district of residence within 10 days of her or his placement in foster care;
- If the district disagrees, it may object within 10 days; and
- The social services agency must issue a final determination in 5 days.
This is the exclusive procedure for determining a student’s school district of residence for foster care purposes. Thus, if a school district fails to object to its designation as the school district of residence, the social services agency’s decision becomes final and conclusive by operation of law. Similarly, social services agencies lack authority to issue “corrected” decisions outside of the statutory objection process (see e.g. Appeal of the Board of Educ. of the City Sch. Dist. of the City of Plattsburgh, 58 Ed Dept Rep, 17,641; Appeal of the Board of Educ. of the Dansville Cent. Sch. Dist., 56 id. Decision No. 17,046).
Problems arise, as here, where parties do not comply with this statutory process. In these circumstances, the Commissioner has apportioned responsibility according to each party’s relative degree of fault (Appeal of the Board of Educ. of the Kiryas Joel Union Free Sch. Dist., 59 Ed Dept Rep, Decision No. 17,712).
A persistent problem is where (as here) the proof of mailing and receipt of the DSS-2999 form is scant or equivocal. Under those circumstances, the Commissioner has presumed that, absent contrary evidence in the record, social services agencies have followed the statutory timeframe in generating and submitting copies of the written residency determination (Appeal of the Board of Educ. of the City Sch. Dist. of the City of Plattsburgh, 58 Ed Dept Rep, Decision No. 17,641). This presumption is designed to ensure that a foster child’s school district of residence, not a department of social services, is assigned ultimate financial responsibility for a foster care placement. As explained in Appeal of the Board of Educ. of the Kiryas Joel Union Free Sch. Dist. (60 Ed Dept Rep, Decision No. 17,931), “[w]hile a social services agency must be held responsible for certain errors and delays in this process ... it would be inequitable to hold it permanently responsible for a child’s education, as financial responsibility ultimately rests with the student’s district of origin under the statute.”
In the underlying appeal, it was unclear when the DSS-2999 was sent by Greene County. Ravena, who bore the burden of proving the facts upon which it sought relief, asserted that it received the DSS-2999 20 days after the student’s placement in foster care. Greene County denied this assertion in its answer. The court reasoned that this evidence established that Ravena received the DSS-2999 within 20 days, specifically finding that Greene County’s “failure to address this issue [wa]s tantamount to [an] admi[ssion].”
While I defer to the court’s finding in this respect, I note for the record that this finding relates to when Ravena received the DSS-2999, not Cairo-Durham, the district that Greene County designated as the student’s school district of residence (Education Law § 3202  [f] [ii] [“Within ten days ... the public agency ... shall give written notice of such placement to the ... district believed to be the school district of residence]). Ravena, the school district that educated the students, was not required to object to the DSS-2999 form or file an appeal to the Commissioner thereafter. That responsibility rested with Cairo-Durham, which knew of its designation in November 2017 at latest, when its school business official responded to a November 8, 2017 letter from Ravena’s business manager and disclaimed financial responsibility for the students.
Nevertheless, the court unambiguously indicated that Catskill should bear financial responsibility (Dec. at p. 8 [“The court finds that the foster children were residents of Catskill, NY when they were removed from their home to foster care”]). While the process by which it arrived at this determination was not consistent with Education Law § 3202 (4) (f), I am bound by its determination. Thus, in accordance with Supreme Court’s decision, I hereby direct Catskill to pay Ravena for any and all tuition costs incurred by Ravena for educating the students during the 2018-2019 school year.
I have considered the parties’ remaining contentions and find them to be without merit.
IT IS ORDERED that Decision No. 17,932 (Appeal of the Board of Education of the Ravena-Coeymans-Selkirk Central School District, 59 Ed Dept Rep) is hereby modified such that the Board of Education of the Catskill Central School District is responsible for any and all tuition costs incurred by the Board of Education of the Ravena-Coeymans-Selkirk Central School District for educating the students at issue herein during the 2018-2019 school year.
END OF FILE
 The Commissioner has previously described this action as ultra vires; i.e., in excess of statute.
 The court’s reasoning is embodied in this passage: “The Commissioner had the authority to assign responsibility for the children’s education costs to the proper district but elected instead to make an irrational determination as to notice.”
 The Office of Children and Family Services has developed a form document for issuing such determinations, called an “LDSS-2999” or “DSS-2999” form (see Office of Children and Family Services, https://ocfs.ny.gov/forms/, last accessed Apr. 20, 2022 [search for “DSS-2999” in search bar]).
 While the extent to which Greene County met its obligations under Education Law § 3202 (4) (f) remains unclear, I decline to hold it responsible for the students’ tuition costs for the 2018-2019 school year, two years removed from its original designation of Cairo-Durham (compare Appeal of the Bd. Of Educ. of the Kiryal Joel Union Free Sch. Dist., 59 Ed Dept Rep, Decision No. 17,712).