Decision No. 18,343
Appeal of the BOARD OF EDUCATION OF THE MONROE-WOODBURY CENTRAL SCHOOL DISTRICT from action of the New York City Department of Education and the New York State Office for People with Developmental Disabilities regarding tuition reimbursement.
Decision No. 18,343
(September 19, 2023)
Ingerman Smith, LLP, attorneys for petitioner, Stephani Bellantoni, Esq., of counsel
New York City Law Department, attorneys for respondent New York City Department of Education, Scott Glotzer, Esq., of counsel
New York State Office for People with Developmental Disabilities, Office of Counsel, Joseph K. Dier, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals the refusal of the New York City Department of Education (“NYCDOE”) to pay for tuition costs incurred by petitioner for educating six students with disabilities (the “students”) during the 2021-2022 school year. In the alternative, petitioner seeks an order that the Office for People with Developmental Disabilities (“OPWDD”) reimburse petitioner for these tuition costs. The appeal must be sustained in part.
The six students were placed in a family home in petitioner’s district on various dates between 2015 and 2021. Each student is eligible for special education and attended school in the Kiryas Joel Union Free School District during the 2021-2022 school year pursuant to a determination of petitioner’s Committee on Special Education.
By letter dated March 28, 2022, petitioner billed NYCDOE for tuition and transportation for each student for the first half of the 2021-2022 school year. Petitioner again contacted NYCDOE on April 5, 2022, attaching the March 28th request. Petitioner included copies of OPWDD School District Notification (“SDN”) forms for each student. The SDN forms bore dates ranging from two months to seventeen years after the students’ placement with OPWDD.
By email to petitioner dated April 6, 2022, NYCDOE stated that it was not financially responsible for the students because they were not identified in its Automate the Schools (“ATS”) database. NYCDOE requested supporting documentation from petitioner to prove that it was the students’ district of origin.
By email dated April 11, 2022, petitioner indicated that if NYCDOE disputed its designation as the district of origin for these students, it must present that objection to respondent OPWDD. Petitioner nevertheless provided a utility bill for one of the student’s families.
On June 30, 2022, petitioner sent additional invoices to NYCDOE for the second half of the 2021-2022 school year. Except for a partial payment for one of the students, NYCDOE did not respond to these invoices. This appeal ensued.
Petitioner contends that NYCDOE is the students’ district of origin because OPWDD so indicated on the SDN forms. Petitioner further asserts that NYCDOE failed to challenge this designation within 10 days. Petitioner requests a determination that NYCDOE is obligated to reimburse petitioner for the cost of educating the students for the 2021-2022 school year. Alternatively, petitioner asserts that OPWDD should be held responsible for failing to timely designate NYCDOE as the district of origin.
NYCDOE argues that petitioner has failed to establish that it is the students’ district of origin.
OPWDD argues that it complied with all legal requirements and should not be responsible for the students’ tuition costs.
First, I must address a procedural matter. Petitioner requests that I accept evidence into the record including deposition transcripts and other documents arising from prior litigation between petitioner and respondent NYCDOE. Additional affidavits, exhibits, and other supporting papers may be submitted only with the prior permission of the Commissioner (8 NYCRR 276.5). While this provision permits the submission of additional evidence, it does not permit parties to raise new claims or defenses for which notice has not been provided (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898). Similarly, additional submissions should not raise new issues or introduce new exhibits that are not relevant to the pleadings (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898). These materials were not available at the time petitioner commenced this appeal and are relevant to the underlying dispute. As such, I have accepted this submission into the record to the extent it pertains to the students at issue herein.
Turning to the merits, but for limited exceptions inapplicable here, “the cost of instruction of children in foster care shall be borne by the school district of origin,” i.e., the school district in which a student resided when placed in foster care (Education Law §§ 3202  [a] [i], [b]; Appeal of the Bd. of Educ. of the Kiryas Joel Union Free Sch. Dist., 59 Ed Dept Rep, Decision No. 17,712). Education Law § 3202 (4) (f) establishes a process by which the district of origin is determined and disputes regarding residency are to be resolved. That section provides that, within 10 days of a student’s placement pursuant to § 3202 (4) (a), the public agency—here, OPWDD—must provide written notice to the school district believed to be the district of origin (Education Law § 3202  [f] [i]). If the district disagrees, it may object within 10 days. The social services agency must then issue a final determination within five days. The designated district of origin or the district that incurs the costs associated with the student’s schooling may thereafter appeal to the Commissioner of Education under Education Law § 310 (Education Law § 3202  [f]; Appeal of the Bd. of Educ. of the Ravena-Coeymans-Selkirk Cent. Sch. Dist., 61 Ed Dept Rep, Decision No. 18,114; Appeal of the Bd. of Educ. of the Kiryas Joel Union Free Sch. Dist., 59 id., Decision No. 17,712).
In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).
Here, as in Appeal of the Bd. of Educ. of the Kiryas Joel Union Free Sch. Dist. (60 Ed Dept Rep, Decision No. 17,931), “[r]espondent OPWDD provides no explanation for its delay in providing the required notification form.” As indicated above, these delays range from two months to seventeen years. As such, “I am constrained to find that respondent OPWDD failed to comply with its statutory duty to make reasonable efforts to identify the student’s district of origin within 10 days of placement” (id.). Consequently, OPWDD shall be responsible for the tuition costs of the six students at issue herein for the 2021-2022 school year (Appeal of the Bd. of Educ. of the Kiryas Joel Union Free Sch. Dist., 59 Ed Dept Rep, Decision No. 17,712 [OPWDD responsible for tuition costs through date of decision based upon designation 29 days after placement in foster care]).
However, I decline to assign financial responsibility to OPWDD on a prospective basis (Appeal of the Bd. of Educ. of the Kiryas Joel Union Free Sch. Dist., 60 Ed Dept Rep, Decision No. 17,931 [“While a social services agency must be held responsible for certain errors and delays in this process as described above, 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”]). NYCDOE is identified as the district of origin on each of the SDN forms. Even assuming that NYCDOE was unaware of this designation until March 28, 2022, it was obligated to object to OPWDD’s designation at that time (see Appeal of the Bd. of Educ. of the Kiryas Joel Union Free Sch. Dist., 59 Ed Dept Rep, Decision No. 17,712; Appeal of the Bd. of Educ. of the City Sch. Dist. of the City of Plattsburgh, 58 id., Decision No. 17,397). The fact that the students did not appear in NYCDOE’s ATS database is unavailing (see Appeal of the Bd. of Educ. of the New Hyde Park-Garden City Park Union Free School District, 57 Ed Dept Rep, Decision No. 17,397 [noting that, in context of request for reimbursement for health and welfare services, the ATS system has limited probative value because it only includes students with “some prior connection to the New York City Public Schools ...”]).
In light of this determination, it is unnecessary to address the parties’ remaining contentions.
THE APPEAL IS SUSTAINED IN PART.
IT IS ORDERED that OPWDD pay petitioner for its tuition costs incurred in educating the students at issue herein for the 2021-2022 school year; and
IT IS FURTHER ORDERED that NYCDOE pay for any and all tuition costs for the students for the duration of their foster care placement thereafter.
END OF FILE
 The record reflects that petitioner filed a lawsuit concerning tuition for multiple school years prior to 2021-2022. That lawsuit remains pending.
 Petitioner has contracted with the Kiryas Joel Union Free School District to educate some of its students (see Education Law § 4401  [b]).
 The purpose of an SDN form is to notify the school district of origin that one of its students has been placed in another district and provide it with an opportunity to object to its designation (Education Law § 3202  [f]). The SDN form also notifies the school district of residence of the identity of the school district of origin so that the school district of residence knows which school district is responsible for tuition.
 Petitioner presents this request in its reply. While a petitioner may not ordinarily request new relief in a reply, Education Law § 3202 (4) (f) (vi) authorizes the Commissioner, in a foster care reimbursement appeal, to “assign  ... financial responsibility to ... [a] public agency” upon a finding that it “failed to make reasonable efforts to identify the school district of origin ....” The statute also authorizes the commissioner to order relief if “the public agency fails to provide timely notice ... or fails to render its final determination in a timely manner ...” (id.). Therefore, requested or not, I have statutory authority to assign financial responsibility to a social services agency (or OPWDD) in a foster care tuition reimbursement appeal.
 OPWDD is subject to the jurisdiction of the Commissioner in foster care tuition reimbursement appeals (Appeal of the Bd. of Educ. of the Kiryas Joel Union Free Sch. Dist., 59 Ed Dept Rep, Decision No. 17,712).
 The 10-day timeframe to dispute a district of origin designation may be tolled if a school district can prove that it did not, in fact, receive notification of its designation (see Appeal of the Bd. of Educ. of the Ravena-Coeymans-Selkirk Cent. Sch. Dist., 61 Ed Dept Rep, Decision No. 18,114).