Appeal of UPSTATE HOME FOR CHILDREN, INC., on behalf of a Student with a Disability, from action of the Boards of Education of the Gilbertsville-Mount Upton Central School District, the City School District of the City of Norwich, and the City School District of the City of Oneonta regarding responsibility for special education placement.

 

 

(June 18, 2004)

 

Scott B. Anglehart, Esq., attorney for petitioner

 

Hogan & Sarzynski, LLP, attorneys for respondent Board of Education of the Gilbertsville-Mount Upton Central School District, Edward Sarzynski, Esq., of counsel 

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent Boards of Education of the City School District of the City of Norwich and the City School District of the City of Oneonta, Marc H. Reitz and Donald E. Budmen, Esqs., of counsel 

MILLS, Commissioner.--Petitioner, Upstate Home for Children, Inc. ("Upstate Home"), challenges determinations of the Boards of Education of the Gilbertsville-Mount Upton Central School District ("Gilbertsville"), the City School District of the City of Oneonta ("Oneonta") and the City School District of the City of Norwich ("Norwich") denying fiscal and programmatic responsibility for a student placed in petitioner"s residential school.  Petitioner seeks an order designating Gilbertsville or another school district as fiscally and programmatically responsible for the student as of July 1, 2002.  The appeal must be sustained in part.

On April 30, 1998, Gilbertsville"s Committee on Special Education ("CSE") met and developed the student"s individualized education program ("IEP") for the 1998-1999 school year.  The IEP identified the student"s father as his parent/guardian residing in Guilford, within the Gilbertsville school district.  The IEP described the student as "multiply disabled" and his placement as a twelve-month 6:1:1 special class at the Delaware-Chenango Board of Cooperative Educational Services ("BOCES"), in addition to a 1:1 bus aide, adaptive physical education and related services of counseling, speech and occupational therapy.  Under "management needs" the IEP stated that the student"s "classroom behavior seriously interferes with instructional process requiring added adult supervision."

On March 20, 1999, the State Education Department ("Department") received a Residential Placement System referral from Gilbertsville"s CSE chair for the student to be placed at Upstate Home.  The referral was accepted on April 7, 1999 with initiation of services on April 27, 1999, pending approval of a 16 hour 1:1 aide.  On April 15, 1999, Gilbertsville"s CSE met and changed the student"s placement from a 6:1:1 special class at the Delaware-Chenango BOCES to an approved private in-state school.

On April 26, 1999, Gilbertsville"s superintendent requested the Commissioner of Education"s approval for the student to be placed at Upstate Home.  The superintendent submitted the  "System to Track and Account for Children" ("STAC-1") form, required for approval of the residential placement, to the Department.  The STAC-1 form identified Gilbertsville as the parent"s district of residence and the district with CSE responsibility.  The STAC-1 form further indicated Upstate Home as the specific school of placement, where full-time special education services were being provided, and requested maintenance service at Upstate Home.

Gilbertsville"s superintendent signed the STAC-1 form below the statement that:

The district Committee on Special Education (CSE) has reviewed the information on the student herein named and certified that the review and the recommended placement is in accordance with the Regulations of the Commissioner.  The Board of Education has determined that the program of a neighboring district or BOCES is not appropriate for the ten month placement of the student herein named and, therefore, requests approval for the services described.  The required parental consent has been obtained by the CSE for the two month (July/August) component of a 12 month educational placement and the student is eligible for such placement in accordance with the Regulations of the Commissioner.

As a result of this process, the student was placed at Upstate Home in April 1999, where he continues to receive services.

On May 27, 1999, Gilbertsville"s CSE met and developed the student"s IEP for the 1999-2000 school year.  The student"s father in Guilford was again identified as the parent/guardian and the placement was changed from BOCES to an "approved private in-state school."

On March 5, 1999, prior to his placement at Upstate Home, and on other subsequent occasions, the student was admitted for brief stays to a respite program at the Homer Folks facility in Oneonta that is affiliated with the Broome Developmental Center.  The Homer Folks facility operates two programs, an Individualized Residential Alternative Program ("IRA"), aidable under Chapter 721 of the Laws of 1979, and a Respite Program that is not funded through Chapter 721.  The student"s social worker at Homer Folks submitted a STAC-200 form to the Department that mistakenly identified the student"s respite placement in March 1999 as authorized under Chapter 721.  The form identified Gilbertsville as the student"s district of residence at the time of admission to Homer Folks and identified Oneonta as the district certifying the student"s handicapping condition on April 6, 1999.

By letter dated June 25, 1999, the director of special education for Oneonta questioned the accuracy of the STAC-200 form, stating that Gilbertsville, not Oneonta, had placed the student.  On August 30, 1999, Gilbertsville"s CSE chairperson forwarded to Oneonta information from the Department indicating that the CSE of the district in which a Chapter 721 IRA is located assumes responsibility for providing special education, related services and transportation.

The Department provided this information to Oneonta in response to the erroneous STAC-200 submission from the Homer Folks social worker.  The information was based upon the requirement of Education Law "3202(5)(d)(2) that a student in an individualized residential alternative, located in a school district other than the school district in which his parent resided at the time of placement, is deemed a student residing in an intermediate care facility ("ICF") for purposes of Education Law "3202(5).  Under Education Law "3202(5)(d)(l), (4) and (5), the school district in which an ICF (or IRA) is located is responsible for providing educational services to children who reside in the ICF, the cost of such services are reimbursed by the Department, and the school district in which the child resided at the time of placement in the ICF (or IRA) must reimburse the Department for its expenditure on behalf of the child.

On September 8, 1999, the Chenango County Family Court awarded joint custody of the student to his parents, directed physical placement with his father, who resided within Gilbertsville"s district, and visitation with the mother as agreed by the parties.

On September 23, 1999, Gilbertsville"s CSE chairperson forwarded tuition bills from petitioner to Oneonta, stating that the student had resided in the Homer Folks IRA and was a resident of Oneonta.  By letter dated October 21, 1999, the CSE chairperson for Gilbertsville informed petitioner that bills were being forwarded to Oneonta based on Gilbertsville"s belief that financial responsibility transferred to Oneonta as a result of the student"s interim placement in the Homer Folks facility.  On November 22, 1999, Oneonta informed petitioner that it had assumed financial responsibility for the student"s tuition, effective March 5, 1999.

On March 16, 2000, the Homer Folks social worker, who submitted the STAC-200 form, informed the Department that the student had been placed in respite on a temporary basis and had never been admitted to the IRA governed by Chapter 721.  Accordingly, the Department contacted Gilbertsville and Oneonta to correct the error.

On May 12, 2000, Gilbertsville"s CSE chairperson confirmed by letter to the Department that the student was a resident of Gilbertsville from January 18, 1998 to March 5, 1999, while in his father"s custody pursuant to court order.  The CSE chairperson further asserted that the student"s placement at Homer Folks changed his custody to the New York State Office of Mental Retardation and Developmental Disability ("OMRDD").  The chairperson"s understanding was based on erroneous information that the Homer Folks facility was a Chapter 721 program, and a further misunderstanding that placement in an IRA would result in a shift in fiscal responsibility from the school district of residence at the time of such placement to the school district of location.  The May 12, 2000 letter also indicated that Gilbertsville"s CSE met on April 15, 1999, on the advice of counsel, to develop an IEP for the student because his father continued to reside in Gilbertsville.

On September 17, 2002, Oneonta was advised by a Department employee that, effective July 1, 2002, it was no longer programmatically or fiscally responsible for the student"s education.  On November 25, 2002, petitioner was advised by a Department employee to commence an appeal pursuant to Education Law "310 to obtain a determination of school district responsibility for the student.  This appeal ensued.

Petitioner contends that the September 8, 1999 order of the Chenango County Family Court determined that the student"s residence is with his father in Gilbertsville, making that school district fiscally and programmatically responsible for the student.  Petitioner contends that it has attempted to work with Gilbertsville and the other respondent school districts, without success, to obtain payment for services provided to the student since July 1, 2002.

Gilbertsville asks that the appeal be dismissed as untimely and because petitioner lacks standing.   Gilbertsville admits that the student"s father resides in its district but nevertheless denies that the student is a district resident.  In addition, Gilbertsville alleges that it had no involvement in his placement in petitioner"s facility and is not responsible for maintenance costs.  Gilbertsville further challenges my jurisdiction to decide this matter because of involvement by Department staff.

Norwich contends that the student in question has never resided, attended school, or been registered in its district.  Norwich alleges that the student"s mother"s current "New Berlin" address and previous "Norwich" address are both located within the boundaries of Unadilla Valley Central School District " not Norwich.

Oneonta also seeks dismissal of the petition as untimely.  Oneonta admits accepting fiscal and programmatic responsibility for the student"s education at petitioner"s facility prior to July 1, 2002.  However, Oneonta contends that it did so in error, based on misinformation provided to the Department on a STAC form the Homer Folks facility submitted in connection with the student"s March 5, 1999 admission for respite care.  Oneonta contends that neither the student nor his parents have ever resided within its district.

Oneonta contends further that the student"s placement in petitioner"s facility was made by Gilbertsville pursuant to an IEP, most recently covering the period from September 8, 1999 through June 23, 2000.  Therefore, Oneonta contends that Gilbertsville remains fiscally and programmatically responsible for the student.  Oneonta also contends that counties, not school districts, are responsible for maintenance costs associated with the student"s placement in petitioner"s facility.

As a preliminary matter, I will address the procedural issues raised by respondents.  First, Gilbertsville argues that I should not review the matter under Education Law "310 because Department staff have allegedly predetermined the issues before me without hearing from all the parties.  Department staff in the school finance unit have been required to confirm school district obligations for billing purposes at various times over the years since this student was placed in petitioner"s facility.  In addition, a regional supervisor in the Department"s Office of Vocational and Educational Services for Individuals with Disabilities ("VESID") advised Oneonta in July 2002, consistent with the State"s duty to provide technical assistance, that it was not obligated to develop an IEP for the student.  I find these routine communications were required for the Department to assist with and monitor school district compliance with special education law and to process the STAC system.  These necessary Department functions are separate and distinct from the "310 appeal process, and have not in any way compromised my impartiality in rendering a decision on the record before me.

Second, Gilbertsville argues that petitioner lacks standing to appeal the February 27, 2002 residency determination on the student"s behalf.  A party may not maintain an appeal unless aggrieved in the sense that it has suffered personal damage to its civil, personal or property rights (Appeal of Lucente, 39 Ed Dept Rep 244, Decision No. 14,227).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Lucente, supra).  Petitioner has been affected financially by respondent Gilbertsville"s determination that it is not the school district of residence.  Therefore, I find petitioner has standing to bring this appeal to ascertain school district responsibility to recover the costs of providing services to the student.

Regarding timeliness, an appeal pursuant to Education Law "310 must be commenced within 30 days from the making of a decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16).  Gilbertsville contends that the appeal is untimely because it was initiated more than 30 days after its superintendent"s February 27, 2002 determination that the student was not a resident.  Oneonta contends that the appeal is untimely because it was not brought within 30 days of the September 17, 2002 letter informing petitioner that Oneonta was not fiscally or programmatically responsible for the student.  Meanwhile, the student remains in petitioner"s facility receiving services without funding.

To the extent petitioner seeks reimbursement for tuition for the 2002-2003 school year, the appeal is timely because tuition payments became due at the completion of the school year (Matter of Bd. of Educ., Yorktown Central School Dist., 17 Ed Dept Rep 2, Decision No. 9,468).  The petition was served upon  Gilbertsville and Norwich on January 9, 2003 and Oneonta on January 10, 2003.  Therefore, I find petitioner"s claims for the 2002-2003 and 2003-2004 school years to be timely.

The appeal is also timely with regard to petitioner"s claim for a determination of school district responsibility because respondents" denial of responsibility is in the nature of a continuing wrong subject to a complaint at any time (Appeal of Nettles, 31 Ed Dept Rep 437, Decision No. 12,691; Appeal of Town of Smithtown, 28 id. 337, Decision No. 12,128; Matter of Baxter and Pickett, 21 id. 610, Decision No. 10,807).

A student with a disability may be placed in a private in-state residential school approved by the Commissioner pursuant to Education Law "4401(2)(g) and "4402(2)(b)(2).  The board of education of the school district in which the student resides is responsible for the placement and its CSE develops the student"s IEP.  In this case, the student"s in-state residential placement at Upstate Home was approved in April 1999 after referral by Gilbertsville.

A child is presumed to reside with his parents or legal guardians (Appeal of Rosen, 43 Ed Dept Rep ___, Decision No. 14,929; Appeal of Karmin, 41 id. 72, Decision No. 14,618; Appeal of Epps, 39 id. 778, Decision No. 14,377).  Where a child"s parents live apart, the child can have only one legal residence  (Appeal of Johnson 43 Ed Dept Rep ___, Decision No. 14,943; Appeal of Burnett, 42 id. 208, Decision No. 14,825; Appeal of Jones and Frank-Jones, 42 id. 129, Decision No. 14,797).  On September 8, 1999, the Family Court awarded joint custody of the student to his parents and physical placement with the father who resides in Guilford, within Gilbertsville"s district.  There is no evidence this court order has been modified or appealed.

Other than hearsay evidence in a letter from its superintendent, Gilbertsville offers no evidence to support its determination that this student is not a district resident or otherwise explained what would have changed the student"s residency between the time its CSE developed his 1998-1999 and 1999-2000 IEPs to the present.  But for the erroneous form filed by the Homer Folks social worker in 1999, Gilbertsville would have continued to have uninterrupted responsibility for this student during his placement at Upstate Home.  This filing mistake, that has since been corrected, does not change the student"s actual residence or excuse Gilbertsville from its obligation under the Individuals with Disabilities Education Act and Article 89 of the Education Law to ensure that this student is provided a free appropriate public education.  Therefore, I find that Gilbertsville is the student"s school district of residence with programmatic and fiscal responsibility for tuition.

The Commissioner of Education lacks authority to award money damages (Appeal of Sitaras, et al., 43 Ed Dept Rep ___, Decision No. 15,044; Appeal of Moore, 41 id. 436, Decision No. 14,738; Appeal of a Student with a Disability, 41 id. 52, Decision No. 14,613).  In the context of a residency appeal, the Commissioner of Education has historically declined to award a school district tuition for educating a non-resident student or to order a district to reimburse a petitioner for tuition paid on behalf of a resident student who was entitled to attend district schools (see, Appeal of Baronti, 42 Ed Dept Rep 140, Decision No. 14,802; Appeal of a Student with a Disability, supra; Appeal of Zavesky, 40 id. 517, Decision No. 14,543).  Accordingly, to the extent petitioner seeks payment from Gilbertsville for tuition since July 1, 2002, that relief should be sought from the New York State Supreme Court or other Court of competent jurisdiction.

In light of this disposition, I need not address the parties" remaining contentions. 

THE APPEAL IS SUSTAINED IN PART. 

IT IS ORDERED that respondent Gilbertsville shall assume programmatic and fiscal responsibility for the student. 

IT IS FURTHER ORDERED that respondent Gilbertsville convene its CSE to develop an IEP for the student.

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