* Subsequent History: Matter of Board of Educ. of Cairo-Durham Central School District v New York State Educ. Dept.; Supreme Court, Albany County (Kushner, A.J.S.C.) Decision/Order/Judgment annulling Commissioner’s decision and remitting to the Commissioner; November 22, 2021.  New Commissioner decision on remittal published; Decision No. 18,114. *

Appeal of the BOARD OF EDUCATION OF THE RAVENA-COEYMANNS-SELKIRK CENTRAL SCHOOL DISTRICT from action of the Board of Education of the Catskill Central School District; the Board of Education of the Cairo-Durham Central School District and the Greene County Department of Social Services regarding tuition reimbursement.

Decision No. 17,932

(October 15, 2020)

            Girvin & Ferlazzo, PC, attorneys for petitioner, Tara L. Moffett, Esq., of counsel

Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP, attorneys for respondent Board of Education of the Catskill Central School District, Edward J. Sarzynski, Esq., of counsel

The Honeywell Law Firm, PLLC, attorneys for respondent Board of Education of the Cairo-Durham Central School District, Paul M. Aloy, Esq., of counsel

Greene County Office of the County Attorney, attorneys for respondent Greene County Department of Social Services, Edward I. Kaplan, Esq., of counsel

ROSA., Interim Commissioner.--Petitioner appeals the refusal of the Board of Education of the Catskill Central School District (“respondent Catskill”) to pay for tuition costs incurred by petitioner for educating J.P., D.S. and L.S., three sibling foster care students (“the students”), during the 2016-2017, 2017-2018, and 2018-2019 school years.  In the alternative, petitioner seeks an order that the Green County Department of Social Services (“respondent DSS”) reimburse petitioner for tuition expenses in connection with the students.  The appeal must be sustained to the extent indicated.

During the 2014-2015 school year, the students resided with their mother at an address within the Cairo-Durham Central School District (“respondent Cairo-Durham”)^[1] and J.P. and D.S. attended school in that district.[2]  In July 2015, the students and their mother became homeless and were placed in temporary housing located within respondent Catskill’s school district.  Pursuant to the McKinney-Vento Homeless Assistance Act (42 USC §11431 et seq., “McKinney-Vento”), J.P. and D.S. were permitted to continue attending school in respondent Cairo-Durham’s district during the 2015-2016 school year.

In March 2016, the students’ mother notified respondent Cairo-Durham that her family had moved from the temporary housing and secured a residence within respondent Catskill’s district (the “Catskill address”).

By letter dated March 3, 2016, respondent Cairo-Durham’s homeless liaison notified the students’ mother that, because she and the students had obtained a fixed, regular and adequate residence, the students were no longer considered homeless.  The homeless liaison further indicated that the students would be permitted to complete the 2015-2016 school year in respondent Cairo-Durham’s district.  Although respondent Cairo-Durham indicated that it would not ordinarily provide transportation under such circumstances, the homeless liaison indicated that it would do so because the students’ mother “indicated [her] intention to appeal this decision” to the Commissioner pursuant to Education Law §310.  The students’ mother thereafter commenced an appeal to the Commissioner pursuant to Education Law §310, and the students remained enrolled in respondent Cairo-Durham’s district for the remainder of the 2015-2016 school year.

On August 24, 2016, respondent DSS assumed custody of the students and placed them into foster case in petitioner’s district.  In connection with this placement, respondent DSS generated three undated forms, one for each student, titled “School District Notification of Foster Child Placed in a Foster Family, Agency Boarding, or Group Home” (“DSS-2999 forms”).  Each DSS-2999 form identified the Catskill address as the “address of child when child entered foster care,” and identified respondent Cairo-Durham as both the “school district last attended” and the “school district child resided in when child entered foster care (district of origin).”

In a decision dated August 26, 2016, the Commissioner dismissed the students’ mother’s Education Law §310 appeal challenging respondent Cairo-Durham’s homelessness determination, finding that, based upon the record in that appeal, the students’ mother had not met her burden of proving that the students were homeless (see Appeal of A.S., 56 Ed Dept Rep, Decision No. 16,957).  The Commissioner reasoned that, “despite her prayer for relief, petitioner indicate[d] in her petition that [her] family [was] no longer homeless” and described her circumstances as “‘recently homeless.’”  The Commissioner further noted that the students’ mother did “not assert that the [Catskill] residence [was] temporary or inadequate and there [was] no evidence in the record to support such a claim.”

The students’ foster parents enrolled the students in petitioner’s district on September 11, 2016.  The students attended school in petitioner’s district during the 2016-2017, 2017-2018, and 2018-2019 school years.

By letter dated November 8, 2017, petitioner’s business manager wrote to respondent Cairo-Durham and stated that respondent Cairo-Durham was “listed on the enclosed DSS-2999 forms” as the district in which the students resided at the time they were placed in foster care.  Consequently, petitioner’s business manager stated, respondent Cairo-Durham was responsible for the cost of the students’ instruction.

By letter dated November 21, 2017, respondent Cairo-Durham’s school business official replied, denying responsibility for the students’ tuition and stating that:

The family moved into the Catskill Central School District in the spring of 2016 and resided at the [Catskill address] listed on the DSS-2999 forms you sent.  At the time of their move, the family claimed protection under the McKinney-Vento Act, which our district denied.  The family appealed that decision to the Commissioner of Education who ruled in August 2016 the family was not eligible for these protections and the children were in fact legal residents of the Catskill Central School District.

Since the DSS-2999 forms indicate the students resided in Catskill at the time they entered foster care and the Commissioner of Education declared they were not homeless and not eligible to attend our schools, they were clearly not residents of our school district when they entered foster care.

On December 6, 2017, petitioner’s business manager contacted respondent DSS regarding the DSS-2999 forms “to ensure that [petitioner] was correctly billing the district ... where the children resided at the time they went into foster care.”

On or about March 7, 2018, respondent DSS faxed “updated” DSS-2999 forms to petitioner that identified respondent Catskill, not respondent Cairo-Durham, as the district in which the students resided at the time they entered foster care.[3]  The updated forms continued to identify respondent Cairo-Durham as the district that the students last attended.

By invoices dated March 9, 2018, April 11, 2018, June 26, 2018, March 5, 2019 and June 26, 2019, petitioner sought tuition reimbursement from respondent Catskill for the cost of educating the students during the relevant school years.  Respondent Catskill did not reimburse petitioner and, by letter dated April 12, 2019, respondent Catskill’s school business official denied responsibility for the cost of educating the students.  The business official averred that the students’ last permanent residence prior to entering foster care had been in respondent Cairo-Durham’s district and that respondent Catskill had “contacted [respondent] DSS in 2018 to notify [it] of [its] error” in revising the DSS-2999 forms.  This appeal ensued.

Petitioner argues that respondent Catskill is the district responsible for the cost of the students’ education pursuant to the revised DSS-2999 forms and requests an order directing respondent Catskill to remit to petitioner all tuition that the students incurred during the 2016-2017, 2017-2018 and 2018-2019 school years.  In the alternative, upon a finding that respondent DSS failed to make reasonable efforts to identify the district responsible for the cost of the students’ education, petitioner requests an order directing respondent DSS to “remit foster care tuition as requested.”  Petitioner also seeks “any other relief as the Commissioner may deem appropriate.”

Respondent Catskill argues that petitioner’s claims seeking tuition reimbursement for the 2016-2017 and 2017-2018 school years are untimely.  It also argues that the original DSS-2999 forms that petitioner received when the students were placed in foster care “would have also been sent to” respondent Cairo-Durham and that respondent Cairo-Durham “did not dispute or appeal its designation” as the district in which the students resided when placed in foster care.  Alternatively, if respondent Cairo-Durham did not receive the DSS-2999 forms, respondent Catskill argues that respondent DSS failed to fulfill its statutory obligation under Education Law §3202(4)(f) and should be held financially responsible.  Finally, respondent Catskill argues that any claims against it should be dismissed because it “would have been able to dispute in a timely manner its designation as the district [in which the students resided when they entered foster care] had it not been for the lack of attention given by [the other parties] to the issues involved in this proceeding.”

Respondent Cairo-Durham argues that petitioner’s claims for tuition reimbursement for the 2016-2017 and 2017-2018 school years must be dismissed as untimely.  It also argues that respondent DSS correctly designated respondent Catskill as the district in which the students resided when they entered foster care and, therefore, respondent Catskill is financially responsible for the cost of the students’ tuition for the 2018-2019 school year.  In the alternative, respondent Cairo-Durham argues that respondent DSS failed to provide it with copies of the original DSS-2999 forms designating it as the district in which the students resided when they entered foster care and, thus, financial responsibility should be assigned to respondent DSS for its failure to comply with the requirements set forth in Education Law §3202(4)(f)(vi).

Respondent DSS argues that the petition must be dismissed for failure to state a claim upon which relief may be granted and as untimely.  It also argues that respondent Catskill is collaterally estopped from challenging its designation as the district in which the students resided when they entered foster care because “[t]he issue of the ‘originating school district,’ as relates to the instant matter, was decided” in the Commissioner’s decision concerning the students’ alleged homelessness (see Appeal of A.S., 56 Ed Dept Rep, Decision No. 16,957).  Respondent DSS further argues that, because respondent Catskill did not challenge the March 9, 2018 determination designating respondent Catskill as the district in which the students resided at the time they entered foster care, that determination has become final and binding.

I must first address several procedural matters.  Respondent DSS objects to the scope of petitioner’s reply.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Respondent DSS also argues that petitioner’s memorandum of law is not a pleading permitted by 8 NYCRR §275.3(a) and that petitioner did not seek prior permission in accordance with 8 NYCRR §275.3(b) to submit an additional pleading.  However, a memorandum of law is permitted pursuant to 8 NYCRR §276.4 and, therefore, to the extent it consists of arguments of law, I have considered it (8 NYCRR §276.4; Appeal of Johnson, 57 Ed Dept Rep, Decision No. 17,328; Appeal of Bruning and Coburn-Bruning, 48 id. 84, Decision No. 15,799).

The appeal must be dismissed, in part, as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  As previous Commissioner’s decisions have held, claims for foster care tuition payments pursuant to Education Law §3202(4)(a) relating to a particular school year become due at the completion of that school year, and any appeal seeking to challenge or enforce such a claim for payments must be commenced within 30 days of the end of the school year to be timely (Appeal of the Board of Education of the Dansville Central School District, 56 Ed Dept Rep, Decision No. 17,046; Appeal of the Board of Education of the Town of Webb Union Free School District, 40 id. 449, Decision No. 14,524; Appeal of the Sole Trustee of the Hickory-South Mountain Common School District No. 1, 38 id. 577, Decision No. 14,097).  Petitioner commenced this appeal on July 30, 2019, which is well beyond the 30-day time limitation for the 2016-2017 and 2017-2018 school years.

Petitioner argues that its failure to file appeals within 30 days of the end of those school years should be excused because it “was not – and could not have been – aware that it should have been billing [respondent] Catskill until DSS belatedly corrected the []DSS-2999 forms.”  I find petitioner’s arguments to be without merit.  The students were enrolled in petitioner’s district on or about September 11, 2016.  Thus, petitioner was aware that it bore the costs of instructing the students as of that date.  If it sought to obtain reimbursement for such costs, petitioner should have, in accordance with the statutory framework outlined in Education Law §3202(4), requested reimbursement from respondent Cairo-Durham, which was identified as the school district in which the students resided when they entered foster care pursuant to the original DSS-2099 forms.  If these efforts proved fruitless, petitioner could have appealed to the Commissioner within 30 days of the end of the 2016-2017 school year.

While I agree with petitioner that DSS’s 2018 “corrected” designation of respondent Catskill as the students’ district of origin was unforeseeable, this did not excuse petitioner’s failure to commence an appeal within the requisite timeframe for the 2016-2017 and 2017-2018 school years (Appeal of the Board of Education of the City School District of the City of Plattsburgh, 58 Ed Dept Rep, Decision No. 17,641).  Moreover, the fact that respondent DSS purported to issue “corrected” DSS-2999 forms in March 2018 is irrelevant because such action was ultra vires and had no legal effect (see Appeal of the Board of Education of the City School District of the City of Plattsburgh, 58 Ed Dept Rep, Decision No. 17,641; Appeal of the Board of Education of the Dansville Central School District, 56 id., Decision No. 17,046).  Therefore, petitioner’s claims regarding the 2016-2017 and 2017-2018 school years must be dismissed as untimely.

I also reject petitioner’s contention that this appeal, commenced pursuant to Education Law §310, is timely because, “pursuant to Education Law §3813, a district has one year from the date payment for the amount claimed was denied to challenge that denial” (internal quotation marks omitted).  Education Law §3813 applies to actions or special proceedings.  It has long been recognized that an appeal to the Commissioner pursuant to section 310 is not an “action or proceeding” within the meaning of Education Law §3813 (Appeal of the Board of Education of the Hilton Central School District, 38 id. 497, Decision No. 14,079; see also Appeal of Jaidan Industries, Inc., 55 Ed Dept Rep, Decision No. 16,856; Appeal of the Board of Education of the Canastota Central School District, 48 id. 235, Decision No. 15,847; Matter of the Board of Education of the Yorktown Central School District, 17 id. 2, Decision No. 9,468).  Therefore, Education Law §3813 is not applicable, and the ordinary timeframe for commencing an appeal pursuant to Education Law §310 concerning foster care reimbursement – the end of the disputed school year plus 30 days – applies to this case.

Turning to the merits of petitioner’s claim for the 2018-2019 school year, Education Law §3202(4) provides, in pertinent part, that the cost of instructing a child in foster care shall be borne by the school district in which the child resided at the time a public agency – in this case, respondent DSS – assumed responsibility for the child’s placement, support, and maintenance (hereafter, “school district of origin”).  Within 10 days of the child’s placement in foster care, 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).

Here, the evidence in the record is unclear with respect to the mailing and receipt of the original DSS-2999 forms, which designated respondent Cairo-Durham as the students’ district of origin.  Although the forms themselves are undated, they include the following directive:  “[p]repare within 10 days of foster child's admission to school.”  Petitioner indicates that it received the original DSS-2999 forms from respondent DSS on September 13, 2016, which was 20 days after the students were placed by respondent DSS in foster care within petitioner’s school district on August 24, 2016.  In its answer, respondent DSS admits that petitioner received the DSS-2999 forms on September 13, 2016 but does not otherwise elucidate when it generated or sent the forms.  Respondent Cairo-Durham, meanwhile, asserts that “[a]t no time was [it] provided a copy” of the original DSS-2999 forms.  In its reply to respondent Cairo-Durham’s answer, respondent DSS expressly denies respondent Cairo-Durham’s claimed non-receipt of the original forms as well as respondent Cairo-Durham’s claim that respondent DSS failed to comply with the requirements of Education Law §3202(4)(f).

Absent contrary evidence in the record, I cannot conclude that respondent DSS failed to generate and submit copies of the original DSS-2999 forms to respondent Cairo-Durham within the 10-day statutory timeframe, as recited on the face of the forms themselves (Appeal of the Board of Education of the City School District of the City of Plattsburgh, 58 Ed Dept Rep, Decision No. 17,641).  Petitioner's representation that it received the original DSS-2999 forms on September 13, 2016 – establishing that the forms were prepared and mailed sometime prior – generally corroborates respondent DSS’s contention that it complied with the requirements of Education Law §3202(4)(f).  Although respondent Cairo-Durham avers that it never received the original DSS-2999 forms, this assertion is not credible in light of the fact that petitioner’s business manager enclosed copies of the original DSS-2999 forms with its letter and invoice to respondent Cairo-Durham dated November 8, 2017.  Furthermore, respondent Cairo-Durham’s school business official acknowledged receipt of petitioner’s letter and discussed the contents of the attached DSS-2999 forms in its November 21, 2017 reply.  Accordingly, there is no basis upon which to credit respondent Cairo-Durham’s claim that it never received the DSS-2999 forms over respondent DSS’s claim that it complied with the statutory timeframe.  Thus, on this record, I cannot hold respondent DSS financially responsible for the cost of the students’ education pursuant to Education Law §3202(4)(f)(vi) (Appeal of the Board of Education of the City School District of the City of Plattsburgh, 58 Ed Dept Rep, Decision No. 17,641; cf. Appeal of the Board of Education of the Kiryas Joel Union Free School District, 59 id., Decision No. 17,712 [holding public agency financially responsible where it was “undisputed” that the agency “failed to meet the 10-day deadline”]).

Although the record establishes that respondent Cairo-Durham was aware of its designation as the students’ district of origin by – at the very latest – its receipt of petitioner’s November 8, 2017 letter, there is no evidence in the record that respondent Cairo-Durham ever attempted to challenge such designation by either submitting any additional evidence to respondent DSS or commencing an appeal pursuant to Education Law §310.  Because respondent Cairo-Durham did not follow the statutory process for objecting to its designation as the students’ district of origin, the designation is final and binding by operation of law (Education Law §3202[4][f]; Appeal of the Board of Education of the City School District of the City of Plattsburgh, 58 Ed Dept Rep, Decision No. 17,641; Appeal of the Board of Education of the Dansville Central School District, 56 id., Decision No. 17,046).

Although respondent DSS subsequently reconsidered its determination and attempted to designate respondent Catskill as the students’ district of origin, such re-designation was ultra vires and without legal effect, as noted above.  Once respondent DSS designated respondent Cairo-Durham as the students’ district of origin, respondent Cairo-Durham’s sole recourse was to follow the statutory process for objecting to its designation, which it did not do (Appeal of the Board of Education of the City School District of the City of Plattsburgh, 58 Ed Dept Rep, Decision No. 17,641; Appeal of the Board of Education of the Dansville Central School District, 56 id., Decision No. 17,046).  Therefore, I have no basis upon which to consider respondent Cairo-Durham’s instant, belated challenge to its designation as the students’ district of origin, and – pursuant to Education Law §3202(4)(f) – I am compelled to find that respondent Cairo-Durham is the students’ district of origin.  Accordingly, I must find that respondent Cairo-Durham is responsible for payment of the students’ tuition for the 2018-2019 school year.

Given the above determinations, I need not address the parties’ remaining arguments.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent Cairo-Durham pay petitioner for any and all tuition costs incurred by petitioner for educating the students during the 2018-2019 school year.

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