Decision No. 12,870

(December 29, 1992)

Hodgson, Russ, Andrews, Woods & Goodyear, Esqs., attorneys for petitioner, Jerome D. Schad, Esq., of counsel

Richard C. Doherty, Esq., attorney for respondent Niagara Falls City School District

Norton, Radin, Hoover, Freedman, Esqs., attorneys for respondent Niagara Wheatfield Central School District, David A. Hoover, Esq., of counsel

Niagara County Department of Social Services, Robert E. Ziske, Esq., Social Services Attorney

SOBOL, Commissioner.--Petitioner, the Akron Central School District (Akron), seeks reimbursement for the education and transportation costs incurred by petitioner for the attendance of James R., a child placed in foster care, at the Gateway School. The appeal must be dismissed.

James R. was placed in foster care in September 1987 pursuant to an order of the Niagara County Family Court, and remained in the continuous care and custody of respondent Niagara County Commissioner of Social Services until March 10, 1991. The Commissioner of Social Services initially placed the student with a foster family in the Starpoint Central School District, but in October 1987 he was transferred to the Gateway Youth Center and their foster family home, located in petitioner Akron Central School District. During the 1989-90 and 1990-91 school years, up to and including December 1990, James R. received special educational services and transportation at the Gateway School. For the 1989-90 and 1990-91 school years, petitioner incurred expenses, after state aid, of $18,631.86 for the educational placement and transportation of James R. to the Gateway School. Petitioner commenced this appeal for reimbursement.

Petitioner contends that it is entitled to reimbursement from either respondent City School District of the City of Niagara Falls (Niagara Falls) or respondent Niagara Wheatfield Central School District (Niagara Wheatfield), as the "school district of origin" pursuant to Education Law ''4001(10) and 4006(1).

Section 4001(10) defines "school district of origin" to mean "the public school district of which a child was or is a resident at the time of such child's placement in the care and custody of [the family court, the division for youth or the local social services district]."

Pursuant to Education Law '4006(1), it is the responsibility of the local social services commissioner, within thirty days of the placement of a child in a child care institution, to notify the board of education of the school district in which the child resided at the time of entrance to care. Pursuant to '4006(2), the board of education that receives such notification may deny financial responsibility by written notice, within twenty days of notification, to the local social services commissioner and the public agency placing the child. Section 4006(3) provides that the social services district placing the child may appeal the board's denial of responsibility to the Commissioner of Education, and that if I determine the child was not a resident of the school district that was notified, I shall request the social services commissioner to ascertain the correct school district and notify such district.

Respondents Niagara Falls and Niagara Wheatfield deny that petitioner is entitled to any relief from them. Respondent Niagara Falls also contends that I lack jurisdiction under Education Law '310 to entertain or adjudicate the claims made in the petition and to adjudicate claims concerning respondent Commissioner of Social Services. In addition, respondent Niagara Falls contends that the appeal must be dismissed because petitioner failed to file a notice of claim pursuant to Education Law '3813.

As a threshold matter, '3813 does not apply to a proceeding to recover the cost of instruction of a student placed in a family home at board of a social services district (Valhalla UFSD v Somers CSD, 98 Misc. 2d 365; Matter of Bd. of Ed., Iroquois CSD, 23 Ed Dept Rep 68; Matter of Romano, 23 Ed Dept Rep 435, affirmed subnomBrentwood UFSD v. Ambach, et al., Supreme Court, Albany County, February 13, 1985, n.o.r., affirmed 115 AD2d 147). Accordingly, this proceeding is not barred by petitioner's alleged failure to file a notice of claim.

Respondent contends that I lack jurisdiction under Education Law '310 to decide this appeal. However, that provision gives the Commissioner broad authority to decide appeals brought by "any party conceiving himself aggrieved" in consequence of any action "[b]y any school district meeting" or "[b]y any other official act or decision of any officer, school authorities, or meetings concerning any other matter under this chapter...." Here, petitioner requests that I determine which of the two respondent districts is the district of origin and order such district to reimburse petitioner for James R.'s education and transportation costs at Gateway. In the alternative, petitioner requests that if I find that respondent Commissioner of Social Services has not issued an appropriate notice identifying the "district of origin," that I order him to issue such written notice to the proper school district of origin and that such district be directed to reimburse petitioner. Tuition payment disputes have been the subject of numerous Commissioner's decisions under '310 (e.g. Appeal of Bd. of Ed. of the Marcellus CSD, et al., 26 Ed Dept Rep 510; Matter of Sanfilippo, 24 ibid 81; Matter of Bd. of Ed. of the Walton CSD, 23 ibid 216). Therefore, to the extent petitioner is entitled to tuition reimbursement from either respondent school districts, petitioner may bring this appeal under Education Law '310.

Petitioner, however, is mistaken in assuming that it is entitled to reimbursement from one of the two respondent school districts. Pursuant to Education Law '4004(2)(a), any tuition expenses for a child who is placed in a child care institution by a social services district, the division for youth or the family court, shall be borne by the local social services district financially responsible for such child. The record indicates that James R. was placed in the Gateway school by respondent Commissioner of Social Services. Therefore, it appears that, pursuant to that statute, respondent Commissioner of Social Services is responsible for the tuition expenses incurred by petitioner. However, I lack jurisdiction under Education Law '310 to order him to reimburse petitioner. There is no provision in that section that gives me the authority to order such reimbursement.

Furthermore, Article 81 of the Education Law does not authorize such appeal or reimbursement. Education Law '4006(3) authorizes only a limited appeal by the local Social Services Commissioner to the Commissioner of Education in the event a school district denies financial responsibility to reimburse the State pursuant to '4004(2)(a) for its State expenses. Section 4006 concerns solely the financial responsibility for State reimbursement and is inapplicable to the establishment of primary liability for the tuition expenses of the child. Rather, '4004 fixes primary liability for such expenses. In any event, respondent Commissioner of Social Services, who is the only party authorized to bring an appeal pursuant to section 4006 (3), has not sought such relief in the present proceeding.

Since I have no jurisdiction to adjudicate a claim against respondent Commissioner of Social Services pursuant to Education Law section 4004(2)(a), the appeal must be dismissed.

THE APPEAL IS DISMISSED.

END OF FILE

---