Appeal of the BOARD OF EDUCATION OF THE EAST RAMAPO CENTRAL SCHOOL DISTRICT and DEBORAH L. WORTHAM as Superintendent from action of the Board of Education of the Monticello Central School District and Tammy Mangus as Superintendent regarding provision of health and welfare services.

Decision No. 17,612

(April 4, 2019)

Harris Beach PLLC, attorneys for petitioners, Douglas E. Gerhardt, Esq., of counsel

Guercio & Guercio LLP, attorneys for respondents, Frank G. Barile, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the refusal of the Board of Education of the Monticello Central School District and Superintendent Tammy Mangus (collectively, “respondents”) to reimburse them for providing health and welfare services to alleged residents of respondents’ district who attended a private school in petitioners’ district during the 2015-2016, 2016-2017, and 2017-2018 school years.  The appeal must be sustained in part.

Petitioners previously commenced a similar appeal pursuant to Education Law §310 challenging respondents’ failure to reimburse them for providing health and welfare services to alleged residents of respondents’ district who attended a private school in petitioners’ district during the 2010-2011, 2011-2012 and 2014-2015 school years.  On July 18, 2018, I sustained petitioners’ appeal in part and ordered respondents to reimburse petitioners for the health services costs which it incurred on behalf of certain residents of respondents’ district for the 2011-2012 and 2014-2015 school years (Appeal of the Board of Education of the East Ramapo Central School District, et al., 58 Ed Dept Rep, Decision No. 17,456) (“East Ramapo I”).  In the instant appeal, petitioners pose substantially similar claims for the 2015-2016, 2016-2017, and 2017-2018 school years.

On April 8, 2016, petitioners submitted an invoice to respondents, pursuant to Education Law §912, for reimbursement of health and welfare costs incurred on behalf of 71 students who allegedly resided in respondents’ district but attended a nonpublic school in petitioners’ district during the 2015-2016 school year. Petitioners calculated the cost of such services at $740.98 per student.  As proof of families’ alleged residency, petitioners submitted documentary evidence consisting largely of utility bills.  Respondents did not respond, or take any action in response to, this invoice.

On June 22, 2017, petitioners submitted an invoice to respondents, pursuant to Education Law §912, for reimbursement of health and welfare costs incurred on behalf of 75 students who allegedly resided in respondents’ district but attended a nonpublic school in petitioners’ district during the 2016-2017 school year. Petitioners calculated the cost of such services at $648.74 per student.  Respondents did not respond, or take any action in response to, this invoice.

On May 7, 2018, petitioners submitted an invoice to respondents, pursuant to Education Law §912, for reimbursement of health and welfare costs incurred on behalf of 58 students who allegedly resided in respondents’ district but attended a nonpublic school in petitioners’ district during the 2017-2018 school year.  Petitioners calculated the cost of such services at $662.54 per student.  Respondents did not respond, or take any action in response to, this invoice.  This appeal ensued.

Petitioners request an order directing respondents to provide reimbursement for health and welfare service costs incurred on behalf of those students who resided in respondents’ district, but attended a nonpublic school in petitioners’ district, for the 2015-2016, 2016-2017, and 2017-2018 school years.  Petitioners further seek an award of attorneys’ fees and an order directing respondents to comply with their obligation pursuant to Education Law §912.

Respondents contend that petitioners have failed to meet their burden of proving that the students at issue are residents of respondents’ district.  With respect to the 2015-2016 school year, respondents argue that petitioners’ proof of residency is insufficient and outdated.  With respect to the 2016-2017 and 2017-2018 school years, respondents contend that petitioners failed to meet their burden of proving residency because they only submitted a list of student names and addresses.

Pursuant to Education Law §912, petitioners are obligated to provide the same health and welfare services and facilities for nonresident students who attend nonpublic school in their district that they provide to resident students who attend public school in the district.  Further, petitioners are entitled to charge respondents the cost of providing such services to residents of respondents’ district.  The proper charge to the district of residence for each student is the total cost of all health and welfare services divided by the total number of students, public and nonpublic, to whom it provides such services (Appeal of the Board of Education of the Greenburgh Central School District No. 7, 33 Ed Dept Rep 81, Decision No. 12,983; Matter of the Board of Education of the City School District of the City of New Rochelle, 23 id. 355, Decision No. 11,246; Matter of the Board of Education of the Elmsford Union Free School District, 22 id. 151, Decision No. 10,913).

Education Law §912, however, does not address the type of documentation that is required to obtain reimbursement.  Instead, §912 calls for a written contract between the district of residence and the district of attendance:

Where children residing in one school district attend a school other than public located in another school district, the school authorities of the district of residence shall contract with the school authorities of the district where such nonpublic school is located, for the provision of such health and welfare services and facilities to such children by the school district where such nonpublic school is located, for a consideration to be agreed upon between the school authorities of such districts, subject to the approval of the qualified voters of the district of residence when required under the provisions of this chapter. Every such contract shall be in writing and in the form prescribed by the commissioner, and before such contract is executed the same shall be submitted for approval to the superintendent of schools having jurisdiction over such district of residence and such contract shall not become effective until approved by such superintendent.

In this case, there is no indication in the record that the parties had a written contract for the school years at issue in this appeal.[1]  However, the Commissioner has repeatedly held that even if the technical requirements of §912 have not been complied with and no contract has been entered into, neither board of education may be absolved of its statutory duty to provide health services or to reimburse for such services, as applicable (Matter of the Board of Education of the City School District of the City of New Rochelle, 23 Ed Dept Rep 355, Decision No. 11,246; Matter of the Board of Education of the City School District of the City of Plattsburgh, 10 id. 228, Decision No. 8,287; Matter of Union Free School District No. 10 of the Town of Southold, 1 id. 197, Decision No. 6,546).

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 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).

Initially, as in East Ramapo I, I must address the parties’ lack of compliance with Education Law §912 for the school years in question.  As indicated above, that statute requires that districts enter into contracts to facilitate reimbursement for health and welfare services.  The problems caused by failing to enter into an agreement are amply demonstrated by the record in the instant appeal, where the parties had no binding mechanism by which to prove or dispute residency for health and welfare reimbursement purposes.  Such a mechanism was especially needed here, given the large number of students attending a single nonpublic school in petitioners’ district and the substantial number of disputes arising therefrom.  While not required, I note that a standardized parental affirmation of residency form is one such mechanism which, subject to contradictory evidence submitted by a district of location, constitutes prima facie evidence of residency (see Appeal of the Board of Education of the New Hyde Park-Garden City Park Union Free School District, 57 Ed Dept Rep, Decision No. 17,397).  Whatever mechanism the parties decide upon, however, their contract should specify the kind of information or documents that shall constitute acceptable proof of residency.  Education Law §912 envisions a system where claims are promptly submitted and reimbursed.  The instant scenario, where the parties have been arguing over the residency of students for several years, is inconsistent with such a system.[2]

Further, I note that the issues raised in the instant appeal could have been substantially resolved had the parties applied the principles of my decision in East Ramapo I to the school years at issue in this appeal.  Instead, petitioners continued to submit limited proof of residency in support of their claims for reimbursement, while respondents, apparently out of a perceived fear of “compromis[ing]” their position in East Ramapo I, did nothing in response.  Although the parties did not have the benefit of my decision in that appeal while the events described in this appeal unfolded, my decision was issued approximately two weeks before petitioners commenced the instant appeal.  The instant appeal involves the same issue (i.e., respondents contend that the alleged residents maintain only summer homes in Kiamesha Lake and are not therefore district residents) and the same problems concerning proof of residency as the prior appeal.  While this appeal is properly before me and I am required to issue a decision thereon, I admonish the parties that, to avoid similar disputes in future school years, they must come into compliance with Education Law §912 by entering into a contract that addresses the proof needed to establish residency.

Turning to the merits, I find that petitioners have failed to meet their burden of proof with respect to their reimbursement claims concerning the 2016-2017 and 2017-2018 school years.  Respondents assert, and the record reflects, that petitioners merely submitted a list of student names and addresses for these school years as proof of the students’ residency.  Petitioners have produced no additional evidence concerning these school years on appeal.  As respondents indicate, I previously stated in Appeal of the Board of Education of the New Hyde Park-Garden City Park Union Free School District (57 Ed Dept Rep, Decision No. 17,397) that “submission of a mere list of student names and addresses does not constitute proof of residency.”  Therefore, particularly in light of the parties’ continued disputes over the residency of the families at issue in this appeal, I find that petitioners have failed to meet their burden of proving that the families identified in the lists for the 2016-2017 and 2017-2018 school years are residents of respondents’ district.[3]

Turning to the 2015-2016 school year, petitioners’ request for reimbursement must be granted in part.  As in East Ramapo I, petitioners’ claim for reimbursement rests upon the residency status of multiple families who allegedly reside within respondents’ district.  As noted previously, petitioners submitted documentary evidence, mostly consisting of utility bills, with their April 8, 2016 invoice for reimbursement for health and welfare services provided during the 2015-2016 school year.  Contrary to respondents’ arguments, such evidence is not so remote in time as to have no probative value concerning residency.  Indeed, many of the utility bills date from July 2015 and thereafter, which is within the 2015-2016 school year, and several others are dated between March and June 2015, within the last four months of the 2014-2015 school year.  The utility bills, and in one case an insurance bill, that are the most remote in time date from December 2014 and January and February 2015.  Even in those instances, their temporal distance from the 2015-2016 school year weakens, but does not eliminate, their probative value as evidence of residency.  There is no evidence that respondents raised any objection to petitioners in 2016 that they felt that the documentary evidence was too remote in time.  Respondents have provided no evidence in this appeal to contradict petitioners’ documentary evidence other than voter registration records for four families.  In this appeal, I take administrative notice of the record in East Ramapo I, in which essentially the same evidence of residency was submitted by petitioners and rejected by respondents.

On this record, therefore, I find that petitioners have sufficiently demonstrated the residency status of 23 of the 42 families by submitting documentary evidence consisting primarily of utility bills.  This includes evidence for five families – the Grunbaum, Halbrecht, Twersky, Weisberger, and Zieg families – in which there are minor discrepancies in the individuals’ names between the list submitted by petitioners and the documentary evidence.  Indeed, for each of these families, there is a discrepancy of only one or two characters in the parents’ first names, which suggests that the errors were typographical in nature.  Accordingly, petitioners have sufficiently met their burden of proving the residency status of 23 families.  Because many of these families have more than one child, the 23 families, collectively, represent 40 students.  Respondents do not contest the per pupil rate calculated by petitioners; thus, I find that petitioners are entitled to reimbursement in the amount of $29,639.20 (i.e., 40 students multiplied by $740.98) (see Matter of the Board of Education of the City School District of the City of Long Beach, 5 Ed Dept Rep 180, Decision No. 7,633 [proper charge is the total cost of all health services divided by the total number of pupils so covered]).

However, petitioners have not met their burden of proving the residency status of eight families – the Fried, Friedman,[4] Katz, Lebovits, Lewin, Stern, Taub and Zafir families – where the documentary proof submitted on behalf of these families bears a different first name than the first name of the parent identified in petitioners’ records.  For example, petitioners’ records list “Pincus Stern” while the documentary evidence refers to “Sarah Stern.”  Additionally, while petitioners’ records identify one “Esther Katz,” the documentary evidence refers to “Eliezer Katz.”  Similarly, the water bill submitted on behalf of Mordcha Zafir bears the names “Mordecai Zafir” as well as Aron Liebowitz.[5]  As indicated in the prior appeal, without further explanation, there is no basis in the record to conclude that the parents or legal guardians of the students in question are residing with their children at the addresses on petitioners’ list.

Additionally, petitioners have failed to meet their burden of proving the residency status of the Fuchs, Hass (Yakov), Neiman (Sender), Steinmetz, Weinberger, Weiss,[6] and Zieg (Beri) families because they submitted no proof to support their claim that these families are residents of respondents’ district.  As indicated above, submission of a mere list of student names and addresses does not constitute proof of residency (Appeal of the Board of Education of the New Hyde Park-Garden City Park Union Free School District, 57 Ed Dept Rep, Decision No. 17,397).

Petitioners have similarly failed to meet their burden of proving the residency status of those families who are registered to vote in petitioners’ district; namely, the Balaban, Einhorn, Kessler, and Neiman (Chaim)[7] families.  As I indicated in East Ramapo I, while the utility and other bills demonstrate that someone resided at the property and the families’ name on the bills reflects a connection to such property, the notion that an individual would register to vote approximately 65 miles from their residence strains credulity.  Here, as in East Ramapo I, petitioners have offered no explanation for the voter registration records.[8]  Therefore, I find that respondents were justified in denying reimbursement for these families.

I acknowledge that petitioners appear to have submitted the same documentary evidence for the 2015-2016 school year which they submitted in seeking reimbursement for the prior (i.e., 2014-2015) school year.  Because this evidence primarily consisted of utility bills, it would not have been unreasonable for respondents to request updated documentation from petitioners; in that case, petitioners’ accession or refusal would have been probative of the issue of residency.  Instead, however, respondents simply ignored petitioners’ request and now argue, several years later, that the evidence which petitioners submitted was outdated.  As I stated in East Ramapo I, Education Law §912 envisions a system where claims are promptly submitted and reimbursed.  Respondents’ actions were not consistent with this goal, and I admonish respondents to promptly review and respond to requests for health and welfare reimbursement pursuant to Education Law §912.

Finally, while I have sustained petitioners’ request for reimbursement in part, petitioners’ request for an award of attorneys’ fees must be denied.  It is well-settled that the Commissioner of Education lacks authority to award costs or attorneys’ fees (Appeal of Wendy and Robert L., 39 Ed Dept Rep 224, Decision No. 14,222; Application of Coleman, 37 id. 391, Decision No. 13,887).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondents pay to petitioners the amount of $29,639.20 for the 2015-2016 school year, less any amount which may have been paid prior to the date of this decision, in compensation for health and welfare services rendered to residents of respondents’ district in accordance with this decision.

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