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Decision No. 14,079

Appeal of the BOARD OF EDUCATION OF THE HILTON CENTRAL SCHOOL DISTRICT from action of the Board of Education of the City School District of the City of Dunkirk relating to foster care tuition reimbursement

Decision No. 14,079

(February 18, 1999)

Harris, Beach & Wilcox, Esqs., attorneys for petitioner, Alfred L. Streppa, Esq., of counsel

Hodgson, Russ, Andrews, Woods & Goodyear, Esqs., attorneys for respondent, John J. Christopher, Esq., of counsel


MILLS, Commissioner.--Petitioner, the Board of Education of the Hilton Central School District, appeals the refusal of respondent Board of Education of the Dunkirk City School District to reimburse petitioner in the amount of $22,120.50 for foster care tuition for the 1995-96 school year. The appeal must be dismissed.

A.I. was a resident of respondent's school district at the time of his foster placement in a special education program in petitioner's school district for the 1995-96 school year. Petitioner alleges that the tuition bill for A.I.'s 1995-96 foster placement was sent to respondent in September 1996. Respondent alleges that it received the tuition bill on October 29, 1996. By letter dated November 1, 1996, respondent's superintendent of schools refused to pay the bill on the grounds that it was untimely since it was sent more than 30 days after the end of the 1995-96 school year.

Petitioner commenced this appeal by service of a copy of the petition on respondent on January 21, 1997.

Petitioner contends that it is entitled to payment from respondent because there is no dispute that A.I. received the education services for which respondent was billed and respondent has not been prejudiced by the commencement of the appeal at this time since respondent budgeted for foster placement tuition payments in its 1996-97 budget, and payment from the budget would be due to petitioner at any time during the 1996-97 school year.

Respondent contends the appeal should be dismissed as untimely and for failure to state a claim upon which relief may be granted. Respondent also alleges that it would be prejudiced by the commencement of the appeal because petitioner's failure to submit a timely tuition bill for services provided to A.I. had resulted in the forfeiture of State aid which otherwise would have been available to respondent to offset the cost of such services.

Tuition claims pursuant to Education Law "3202(4)(a) become due at the conclusion of the school year for which such claims are made (Matter of Sanfilippo, 24 Ed Dept Rep 81). An appeal involving tuition payments must be commenced within 30 days of the close of the school year for which reimbursement is sought (Appeal of Bd. of Ed., Marcellus CSD, et al., 26 Ed Dept Rep 510; Matter of Bd. of Ed., Walton CSD, 23 Ed Dept Rep 216). Therefore, petitioner should have commenced this appeal no later than July 30, 1996 with respect to tuition payments for the 1995-96 school year. This appeal was not commenced until January 21, 1997.

Petitioner contends that the appeal is timely because Education Law "3813(2-b) permits an action or special proceeding for tuition reimbursement under Education Law "3202(4) to be commenced up to one year after the date payment for the amount claimed was denied. However, an appeal to the Commissioner of Education is not an "action or special proceeding" within the meaning of Education Law "3813 (Appeal of Monk, 29 Ed Dept Rep 444; Matter of Shusterman, 18 id. 516). Petitioner has commenced this appeal pursuant to Education Law "310 and is subject to the 30 day limitation period set forth in "275.16 of the Commissioner's Regulations.

Also without merit is petitioner's reliance on the decisions in Appeal of Bd. of Ed., Brighton Central School District, 36 Ed Dept Rep 381; Matter of Central High School District No. 2, Towns of Hempstead and North Hempstead, 2 id. 255; and Matter of UFSD No. 3, Town of Eastchester, 77 State Dept Rep 130. Those decisions concern appeals for reimbursement of the cost of health and welfare services provided pursuant to Education Law "912. The 30 day statute of limitations does not bar such appeals "since health services need to be rendered continuously" (Matter of Central High School District No.2, Towns of Hempstead and North Hempstead, supra. The present appeal concerns reimbursement for tuition for the foster care educational placement of a specific student for a specific school year, and cannot be deemed to involve 'continuing' circumstances similar to those presented in the foregoing decisions relating to services associated with Education Law "912.

Pursuant to "275.16 of the Commissioner's Regulations, a failure to commence an appeal within the time specified may be excused for good cause shown. Petitioner contends that its untimeliness in commencing the appeal should be excused because its census and attendance clerk, who is responsible for preparing the tuition billings, is only a ten-month employee. I do not find this sufficient to excuse the untimely appeal. It appears from the affidavit of respondent's superintendent of schools that as a result of prior similar billing issues, respondent advised petitioner by letter dated April 30, 1996 that rulings of the Commissioner of Education require a school district to bill by June 30th of the school year in which services are rendered and that respondent would not pay a bill for tuition reimbursement received after June 30th. Subsequently, on or about May 15, 1996, petitioner was advised by respondent by telephone that respondent's position had not changed. Petitioner therefore had notice of respondent's position. It was petitioner's choice to assign the task of preparing the billings to a ten-month employee, and petitioner has failed to establish that no other employee was available to timely prepare the tuition billings. Petitioner further alleges that not all of the fiscal information necessary to calculate foster placement tuition bills is available to submit billings by August 1 of each school year. However, other than this general allegation, petitioner offers no proof that it was not possible to timely calculate such billings.

Moreover, even if I were to excuse petitioner's failure to commence this appeal within 30 days of the end of the 1995-96 school year, petitioner also failed to commence this appeal within 30 days from its receipt of respondent's November 1, 1996 refusal to reimburse petitioner, and offers no basis for such delay other than that "discussions" and "research" took place between the date it received the November 1st letter and December 19, 1996. It was not until December 23, 1996, that petitioner's director of business operations sent a letter referring the matter to its attorneys, and the appeal was not commenced until January 21, 1997.

Petitioner also contends that its late appeal should be excused because respondent will not be prejudiced by the late filing of the appeal. However, the burden of proof in an appeal to the Commissioner rests with the petitioner (Appeal of Gravink, 37 Ed Dept Rep 393) and it is not clear from the record that respondent would not be prejudiced if the appeal were to be permitted. Furthermore, regardless of whether prejudice to respondent would result, the lack of prejudice, in itself, does not establish good cause to excuse the appeal. As discussed above, the 30 day time limitation for filing appeals involving tuition payments has been well established pursuant to previous Commissioner's decisions and petitioner had notice of respondent's position with respect to such billings. Despite these facts, petitioner did not commence this appeal until January 21, 1997. Petitioner's reliance on Application of a Child with a Handicapping Condition, 30 Ed Dept Rep 64, is misplaced. That decision concerned prose petitioners and their failure to serve a notice of intention to seek review within 30 days after receipt of the hearing officer's decision and their failure to serve a verified petition. The Commissioner found that in such circumstances a liberal interpretation of the rules is appropriate, particularly where there is no evidence of prejudice to the opposing party. In the present appeal, as noted by the Court in Brentwood UFSD v. City Of New York, (Supreme Court, New York County, IA Part 2; York, J.; January 17, 1996, n.o.r) (available January 17, 1996; NYLJ Volume 215 Number 11), ". . . the parties are not laypersons inexperienced with Education Law "3202(4)(a); instead, they are school districts . . . and are chargeable with knowledge of the law governing claims of this sort."

Accordingly, I find that petitioner has failed to establish any basis for excusing its delay in commencing this appeal.

It should be noted that pursuant to the August 7, 1996 memorandum of Acting Commissioner of Education Thomas E. Sheldon, it is recommended that to minimize delays in receiving foster care reimbursements from the district of residence, the educating district should submit invoices at least quarterly during the school year and include a copy of the Department of Social Services Form 2999 entitled "School District Notification of Foster Child", which form identifies the responsible school district at the time that the Department of Social Services assumed custody. Petitioner may wish to consider this recommendation with respect to its future billings for foster care tuition reimbursements.