Appeal of the BOARD OF EDUCATION OF THE KIRYAS JOEL UNION FREE SCHOOL DISTRICT from action of the Board of Education of the East Ramapo Central School District and the New York State Office for People With Developmental Disabilities regarding tuition reimbursement.

Decision No. 17,931

(October 15, 2020)

Shebitz Berman & Delforte, P.C., attorneys for petitioner, Jacob S. Claveloux Esq., of counsel

Harris Beach PLLC, attorneys for respondent Board of Education of the East Ramapo Central School District, Douglas E. Gerhardt, Esq., of counsel

New York State Office for People With Developmental Disabilities, Office of Counsel, Joseph K. Dier, Esq., of counsel

ROSA., Interim Commissioner.--Petitioner appeals the refusal of the Board of Education of the East Ramapo Central School District (“respondent East Ramapo”) to reimburse it for the cost of tuition for a student (“the student”) who was placed by the Office for People With Developmental Disabilities (“OPWDD” or “respondent OPWDD”) in a family care home[1] located within the boundaries of petitioner’s district.  In the alternative, petitioner seeks a declaration and order that OPWDD is fiscally responsible for the student’s tuition.  The appeal must be sustained in part.

Prior to the events described in this appeal, respondent OPWDD placed the student in a family care home located within petitioner’s school district (“the family care home”).  Thereafter, on June 15, 2016, the student’s Medicaid service coordinator requested that “OPWDD send out a school district notification for [the student].”  At the time, the student was not yet five years of age.

In a letter addressed to respondent East Ramapo and an attached form titled “School District Notification of Child Placed in an Office for People With Developmental Disabilities Program” (“notification form”), both dated June 28, 2016, a regional office of respondent OPWDD designated respondent East Ramapo as the district in which the student had lived when the student was deemed eligible for OPWDD services and placed in the family care home.  The notification form further identified petitioner as the district in which the family care home was located.  According to the notification form and other documentation in the record, respondent OPWDD placed the student in the family care home on September 1, 2015; however, the record also includes an affidavit from a community supports coordinator employed by respondent OPWDD, who indicates that the student “moved into [the family care home] on June 1, 2014.”

The student began kindergarten in petitioner’s district in the 2018-2019 school year.  By letter dated July 11, 2018, petitioner’s treasurer advised respondent East Ramapo that, because the June 28, 2016 notification form identified respondent East Ramapo as the district in which the student resided at the time the student was placed in the family care home, respondent East Ramapo was responsible for the cost of the student’s education.  The letter further stated that, based on an “approved agreement”[2] between petitioner and respondent East Ramapo, the tuition rate for the 2018-2019 school year was $78,070.

By letter dated July 23, 2018, which was addressed to a regional office of respondent OPWDD and copied to petitioner, respondent East Ramapo’s assistant superintendent for finance (“assistant superintendent”) asserted that respondent East Ramapo had “not received any direct notification from [respondent] OPWDD regarding [the student].”  Characterizing the July 23, 2018 letter as a “formal objection to any claimed notification” and a “formal denial of any financial responsibility,” the assistant superintendent disputed respondent OPWDD’s designation of respondent East Ramapo as the district where the student resided when the student was placed in the family care home because “the only alleged proof of residency [was] a Verizon bill with a due date of April 20, 2014.”  There is no indication in the record that petitioner or respondent OPWDD responded to respondent East Ramapo’s July 23, 2018 letter.

By invoice dated October 31, 2018, petitioner billed respondent East Ramapo for the cost of the student’s tuition.  There is no indication in the record that this invoice was ever paid.  This appeal ensued.

Petitioner argues that it is not legally responsible for the cost of educating a student placed in a family care home within its district.  Therefore, petitioner requests a declaration that respondent East Ramapo is obligated to pay for the cost of the student’s education and a corresponding order directing respondent East Ramapo to pay petitioner for such cost in accordance with their April 2017 agreement.  In the alternative, petitioner seeks an order declaring that respondent OPWDD is obligated to pay for the cost of the student’s education and a corresponding order directing respondent OPWDD to pay petitioner for such cost in accordance with the same.

Respondent East Ramapo argues that it is not responsible for the cost of the student’s education because OPWDD failed to provide timely notice designating it as the district where the student resided at the time the student was placed in the family care home.  Thus, respondent East Ramapo argues that OPWDD is obligated to pay for the cost of educating the student.  It also argues that the student was never a resident of its district as neither its registration department nor its transportation department has any records of the student’s residency and the documentation provided by petitioner is “inadequate” proof of residency.

Respondent OPWDD argues that the appeal must be dismissed for failure to state a claim upon which relief can be granted.  Respondent OPWDD also argues that respondent East Ramapo’s failure to object or submit evidence in response to the June 28, 2016 notification form renders it responsible for the student’s tuition for the 2018-2019 school year. 

The version of Education Law §3202(4) that was applicable at the time of the student’s placement in the family care home provides, in pertinent part, that the cost of instructing a child in a family care home shall be borne by the school district in which the child “resided” at the time OPWDD assumed responsibility for the child’s placement, support, and maintenance (hereafter, “school district of origin”).  Within 10 days of the child’s placement in a family care home, such public agency must identify the school district of origin and notify the district in writing of this designation (Education Law §3202[4][f][i]).  If such district’s board of education disagrees with the public agency’s determination, it may, within 10 days of its receipt of such notice, submit to the public agency additional evidence to establish that it is not responsible for the child’s tuition (Education Law §3202[4][f][ii]).  The public agency then has five days from the submission of such additional evidence to make a final determination.  If the district does not submit additional evidence within the 10-day period, the public agency’s initial determination and notification are deemed final (Education Law §3202[4][f][ii]).  The designated district of origin may appeal the public agency’s final determination to the Commissioner pursuant to Education Law §310 within 30 days of its receipt of the determination (Education Law §3202[4][f][iv]).

Education Law §3202(4)(f)(vi) further provides that,

[i]n the event the public agency fails to provide timely notice pursuant to subparagraph (i) of this paragraph, or fails to render its final determination in a timely manner, the public agency responsible for such pupil’s residential placement shall reimburse the commissioner for the payments made to the district furnishing instruction pursuant to this paragraph during the pendency of all proceedings or for the duration of the current school year, whichever is longer....

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).

As indicated above, the record is unclear as to exactly when respondent OPWDD placed the student in the family care home, giving rise to respondent OPWDD’s obligation to inform the district of origin of such placement.  However, I need not resolve this issue because, even selecting the date most favorable to respondent OPWDD – September 1, 2015 – respondent OPWDD did not issue the requisite notice until nearly 10 months thereafter, on June 28, 2016. 

Respondent OPWDD provides no explanation for its delay in providing the required notification form, beyond asserting in its memorandum of law that the requirements of Education Law §3202(4) did not attach when it placed the student in the family care home because the student was not yet five years old.  As an initial matter, I note that respondent OPWDD improperly raises this contention for the first time in its memorandum of law.  A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Johnson, 57 Ed Dept Rep, Decision No. 17,328; Appeal of Bruning and Coburn-Bruning, 48 id. 84, Decision No. 15,799).  Accordingly, respondent OPWDD’s failure to raise this claim in its answer constitutes a waiver of such defense (Appeal of E.F., 57 Ed Dept Rep, Decision No. 17,186; Appeal of Munoz-Feliciano, 54 id., Decision No. 16,773).

In any event, this argument lacks merit.  The Commissioner has previously held that, consistent with the intent of Education Law §3202(4), the district fiscally responsible for services to a student in foster care is the district in which the student resided at the time the social services agency assumed responsibility, regardless of whether the student was of school age on that date (Appeal of Board of Education of the Menands Union Free School District, 59 Ed Dept Rep, Decision No. 17,713).  Indeed, as was the case in that prior decision, there was no language in Education Law §3202(4)(f) as it existed at the time of the student’s placement in foster care that would support respondent OPWDD’s contention that, because the student had not yet reached school age, it was entitled to delay identifying the school district in which the student resided at the time of placement for several months and potentially even longer.  Therefore, on this record, 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 (see Appeal of the Board of Education of the Kiryas Joel Union Free School District, 59 Ed Dept Rep, Decision No. 17,712).

However, I decline to assign financial responsibility to respondent OPWDD on a prospective basis.  Education Law §3202(4)(f) contains a detailed procedure to promptly ascertain and assign financial responsibility to a student’s district of origin.  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.  Therefore, I hereby direct respondent OPWDD to consider respondent East Ramapo’s objections raised in its July 23, 2018 letter and render a final written decision in accordance with Education Law §3202(4)(f)(iii) within five days of this decision.

THE APPEAL IS SUSTAINED IN PART.

IT IS ORDERED that respondent OPWDD shall pay petitioner for its tuition costs incurred in educating the student from September 2018 through the date of this decision; and

IT IS FURTHER ORDERED that respondent OPWDD review respondent East Ramapo’s letter dated July 23, 2018 and make a final determination in accordance with Education Law §3202(4)(f)(iii) within five days of the date of this decision.

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