Appeal of the BOARD OF EDUCATION OF THE PHOENIX CENTRAL SCHOOL DISTRICT from action of the County of Oswego Department of Social Services and the Board of Education of the Central Square Central School District regarding tuition reimbursement.

Decision No. 18,282

(May 24, 2023)

Ferrara Fiorenza PC, attorneys for petitioner, Lindsay A. G. Plantholt, Esq., of counsel

County of Oswego, Office of the County Attorney, attorneys for respondent County of Oswego Department of Social Services, Richard C. Mitchell, Esq., of counsel

Bethany A. Centrone, Esq., attorney for respondent Board of Education of the Central Square Central School District

ROSA., Commissioner.--The Board of Education of the Phoenix Central School District (“Phoenix”) appeals its designation as the district of origin by respondent County of Oswego Department of Social Services (“DSS”) in connection with a student’s placement in foster care.  The appeal must be sustained to the extent indicated.  

From 2016 to 2019, the student attended Phoenix.  Beginning in 2019, the student attended the Central Square Central School District (“Central Square”) based upon his father’s residence therein.

In fall 2021, DSS requested that Phoenix enroll the student as a homeless student pursuant to the McKinney-Vento Homeless Assistance Act (“McKinney-Vento”).  DSS generally explained to Phoenix that the student was living with his grandparent in Phoenix due to the conditions of an order of protection issued on May 19, 2021.  The student attended Phoenix during the 2021-2022 school year.

On August 9, 2022, DSS assumed custody of the student, placed him in a foster home, and assigned him to attend a special act school district.  On or about August 10, 2022, Phoenix received a “Child in Foster Care – School Notification” form (“LDSS-2999”) from DSS designating Phoenix as the student’s district of origin. 

On August 19, 2022, Phoenix objected to its designation.  By letter dated October 11, 2022, DSS declined to change this designation.  This appeal ensued.  Petitioner’s request for interim relief was denied on November 22, 2022.

Phoenix argues that the student’s district of origin is Central Square because the student was “eligible to attend” Central Square when he was placed in foster care.  Alternatively, Phoenix asserts that Central Square should bear financial responsibility because it was the student’s district of origin in connection with the 2021 homelessness determination.  Phoenix also contends that respondent DSS should bear the cost of tuition during the pendency of this appeal or the duration of the 2022-2023 school year, whichever is longer. 

DSS argues that the appeal is untimely and must be dismissed for lack of personal service.  DSS further argues that the appeal must be dismissed because Phoenix named DSS instead of the Oswego County Commissioner of Social Services in the caption of the appeal.  DSS additionally argues that the appeal should be dismissed on the merits.[1]

Central Square argues that the appeal must be dismissed as untimely.  Central Square additionally asserts that Phoenix is estopped from challenging its designation as the district of origin because it failed to notify Central Square in connection with its 2021 homelessness determination.

The procedural arguments raised by DSS and Central Square are without merit.  First, the appeal is well within the time limitation for a claim for foster care tuition; i.e., 30 days after the end of the school year (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).  Phoenix commenced this appeal on November 10, 2022—over seven months earlier than it could have.

Second, DSS’s argument of improper service is frivolous.  In an affidavit, petitioner’s process server details her efforts to ensure that the petition was personally handed to an individual authorized to accept service.  This culminated in the delivery of the petition to an individual who verbally “confirmed ... that she was duly authorized to accept service.”  Whether or not this individual was, in fact, so authorized, I find that petitioner reasonably relied on her representation (see Appeal of T.V. and J.V., 62 Ed Dept Rep, Decision No. 18,265).

Third, Phoenix appropriately named DSS in the caption of the appeal instead of the Commissioner of Social Services.  DSS was the “public agency” that made the district of origin designation pursuant to Education Law § 3202 (4).  Accordingly, DSS is an appropriate respondent in this proceeding (see Education Law §§ 3202 [4] [f] [iv], [vii]; see Appeal of the Board of Educ. Of the Menands Union Free Sch. Dist., 59 Ed Dept Rep, Decision No. 17,713).[2]

Turning to the merits, 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 that the child or youth in foster care was attending on a tuition-free basis or was entitled to attend when the social services district assumed responsibility for the child’s placement, support, and maintenance (the “school district of origin”).  The social services agency must notify the school district of origin within 10 days of the student’s placement in foster care.  If that district disagrees, it may object within 10 days.  The social services agency then has 5 days to issue a final determination.  The party designated as the district of origin may thereafter appeal such designation to the Commissioner of Education under Education Law § 310 (Education Law § 3202 [4] [f]; Appeal of the Bd. of Educ. of the Ravena-Coeymans-Selkirk Cent. Sch. Dist., 61 Ed Dept Rep, Decision No. 18,114).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she 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).

Two findings support assignment of financial responsibility to DSS during the pendency of this appeal.  First, DSS failed to comply with the timelines set forth in Education Law § 3202.  In response to Phoenix’s timely objection, DSS took 53 days to affirm its designation of Phoenix as the district of origin.  DSS offers no explanation for this delay.  Second, DSS failed to disclose pertinent details supporting its designation until its answer in this appeal.  DSS was required to include this information in the first instance (Education Law § 3202 [4] [f] [i] [“Such notification shall include the name of the pupil and any particulars about the pupil that pertain to the identification of the school district as the school district of origin ...”]).  Based on these deficiencies, I find that DSS is responsible for the cost of the student’s tuition through the pendency of this appeal (see Appeal of the Board of Educ. of the Kiryas Joel Union Free Sch. Dist., 59 Ed Dept Rep, Decision No. 17,712).

Thereafter, however, Phoenix shall be responsible for the cost of the student’s tuition.  The evidence in the record, including documents obtained from DSS and reviewed in camera, support DSS’s determination.  Court orders in effect at the time of the student’s placement in foster care prevented the student from living with, or being physically present at, the Central Square residence with the student’s father.  Thus, these court orders rebut the parental presumption of residency in Central Square (Appeal of A.C., 60 Ed Dept Rep, Decision No. 17,888).  Phoenix has otherwise failed to present evidence that the student was not attending or entitled to attend Phoenix on a tuition-free basis at the time of his placement in foster care.

Given the determinations set forth above, I need not address the parties’ remaining arguments.  I admonish DSS, however, to comply with Education Law § 3202 (4) (f).  Its failure to share “particulars about the pupil that pertain[ed] to the identification of [Phoenix] as the school district of origin” and issue a timely determination thereto unnecessarily complicated and prolonged the instant dispute (Education Law § 3202 [4] [f] [i]).

THE APPEAL IS SUSTAINED IN PART.

IT IS ORDERED that DSS pay Phoenix for any and all tuition costs incurred by Phoenix for educating the student until the date of this decision; and

IT IS FURTHER ORDERED that Phoenix pay for any and all tuition costs for the student for the duration of his foster care placement thereafter.  

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