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Decision No. 15,345

Appeal of the CITY SCHOOL DISTRICT OF THE CITY OF PlattsburgH from action of the Peru Central School District regarding tuition reimbursement.

Appeal of the CITY SCHOOL DISTRICT OF THE CITY OF PlattsburgH from action of the Peru Central School District regarding tuition reimbursement.

Decision No. 15,345

(January 19, 2006)

Hogan, Sarzynski, Lynch, Surowka & DeWind, LLP, attorneys for petitioner, Edward J. Sarzynski, Esq., of counsel

Young, Sommer, Ward, Ritzenberg, Baker & Moore, LLC, attorneys for respondent, Kenneth S. Ritzenberg and Robert A. Panasci, Esqs., of counsel

MILLS, Commissioner.--In two separate appeals, petitioner challenges the refusal of the Board of Education of the Peru Central School District ("respondent") to reimburse it for the cost of tuition for a student with a disability for the 2003-2004 and 2004-2005 school years. Because the appeals involve common issues of law and fact, they are consolidated for decision. The appeals must be dismissed.

On November 9, 2001, the Clinton County Family Court granted permanent legal and physical custody of a student with a disability to his grandmother. At that time, they resided in petitioner's district ("Plattsburgh"), and the student attended petitioner's schools. In the spring of 2002, the grandmother became homeless, and in August 2002, she went to live with her son in respondent's school district ("Peru"). In August or September 2002, the student began living with a child advocate in Plattsburgh while a therapeutic foster care placement was arranged. On November 2, 2002, the Department of Social Services ("DSS") assigned the student to a foster care placement in the Elizabethtown Central School District ("Elizabethtown"). The student continued to attend Plattsburgh, however, because Elizabethtown did not have an appropriate placement.

By letter dated November 22, 2002, petitioner's representative notified respondent's district that the student was in a special education program in Plattsburgh, but that since the student's grandmother, who had legal custody, had been residing in Peru since September, respondent was responsible for providing the student's educational program. On February 4, 2004, petitioner commenced an Article 78 proceeding seeking tuition for the 2002-2003 school year.

By invoice dated May 5, 2004, petitioner billed respondent $11,660.34 for the 2003-2004 school year, and an appeal for 2003-2004 tuition ensued. By invoice dated January 31, 2005, petitioner billed respondent $9,178.34 for the 2004-2005 school year, and an appeal for 2004-2005 tuition ensued.

Petitioner claims that Peru was the district of residence at the time the student was placed in foster care and is therefore fiscally and programmatically responsible for his education. Petitioner seeks tuition reimbursement in the amount of $11,660.34 for the 2003-2004 school year and $9,178.34 for the 2004-2005 school year.

Respondent argues that the student was homeless at the time he was placed in foster care and that Plattsburgh, as the school district of origin, is responsible for the student's educational costs.

First, I must address a procedural matter. Petitioner contends that respondent failed to submit a timely answer to the petition requesting tuition for the 2003-2004 school year. Section 275.13 of the Commissioner's regulations requires each respondent to answer the petition within 20 days from the time of service. Extensions may be granted in the discretion of the Commissioner upon timely application therefor (8 NYCRR �276.3). Further, a late answer may be considered in the discretion of the Commissioner upon consideration of the proffered reason for the delay (seeAppeal of Scanlon, 41 Ed Dept Rep 114, Decision No. 14,632; Appeal of Bronico, 32 id. 54, Decision No. 12,755). In the absence of a sufficient excuse for a late answer, the factual allegations set forth in the petition will be deemed to be true statements (8 NYCRR �275.11; Appeal of Bonham, 44 Ed Dept Rep 179, Decision No. 15,140).

In that appeal, the petition was served on July 23, 2004 and the answer was served on August 18, 2004 -- clearly beyond the 20-day period. Respondent's counsel requests that I accept the answer and petitioner's counsel objects. However, because the answer for the appeal regarding tuition for the 2004-2005 school year is timely and substantially the same as the answer for the prior year, and because both appeals must be decided in a consistent manner, the issue is moot and I will accept the untimely answer.

Education Law �3202(4)(a) provides in relevant 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 placement, support and maintenance of such pupil....

Therefore, the issue is identifying the student's district of residence at the time DSS assumed responsibility for his placement.

"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 Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109; Appeal of W.D. and P.Z-D., 44 id. 77, Decision No. 15,104). A residence is not lost until it is abandoned and another is established through action and intent (Appeal of Collins, 44 Ed Dept Rep 74, Decision No. 15,103; Appeal of Weisberg, 39 id. 737, Decision No. 14,365).

Petitioner argues that the student's grandmother became a resident of Peru in August 2002 when she began living with her son within the district. It maintains that the grandmother's plan to live with her son was long-term and permanent, not temporary. Also, it provides a letter from DSS and an affidavit from a case worker indicating that the grandmother was considered homeless by its agency from May 13, 2002 through July 31, 2002 and that, according to DSS standards, the agency did not consider her grandmother homeless once she moved into her son's home. It further argues that since the grandmother had permanent legal and physical custody of the student, he was a district resident when he was placed in foster care on November 2, 2002. Petitioner also argues that it did not receive notice that it was the school district of residence from the agency placing the student, as required by Education Law �3202(4)(f).

Respondent, however, provides an affidavit from the student's grandmother in which she states, "I had no intention of living with my son other than on a short term basis. I had no intention of establishing residency at this house. My intention was to stay with my son on a temporary basis until I was able to find a permanent residence within the City of Plattsburgh." She explains that it was difficult for her to get to her medical appointments from her son's house. She states that in or about December 2002, she applied for housing in the City of Plattsburgh through the U.S. Department of Housing and Urban Development ("HUD") and was placed on a waiting list. In August 2003, she moved to her daughter's residence in Plattsburgh but remained on the HUD waiting list.

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 Romeo, 44 Ed Dept Rep 149, Decision No. 15,128; Appeal of Patton, et al., 42 id. 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530).

Petitioner fails to meet this burden. It is uncontraverted that the student's grandmother was physically present in Peru when the student was placed in foster care in November 2002. However, while petitioner characterizes the grandmother's living arrangement in respondent 's district as long term and permanent, this is directly contradicted by the sworn affidavit of the student's grandmother. Petitioner also argues that since DSS did not consider the grandmother "homeless" after she moved in with her son, she must have established residency. However, petitioner has failed to establish that the standards for "homelessness" for DSS assistance are the same as those applied for establishing school district residency. I therefore cannot conclude that the student's grandmother established residence in the Peru district, making it responsible for the student's tuition.

Since petitioner's claims are based on a showing that the student's grandmother established residency in Peru, I need not address the parties' remaining contentions.