MA CHILD WELFARE - NEW RULES ON SCHOOL CRA FILINGS, ETC.

This summary is from Committee for Public Counsel Services, 75 Federal Street 6th Floor, Boston, MA 02110:

"On August 7, 2026, Governor Healey signed H. 5629, An Act Enhancing Child Welfare Protections.  You can find the session law here: Chapter 179 of the Acts of 2026.  Most of the provisions go into effect November 5, 2026, including a landmark “Bill of Rights” for children and young adults in the care or custody of DCF.  Other provisions, including expansion of the Family Resource Centers (FRC) and changes to the CRA statute to divert children from court (including raising the minimum age from 6 to 12), are effective August 7, 2027.  While the amendments to the CRA statute don’t go into effect until summer 2027, beginning November 5, 2026, schools are required to refer families to the Family Resource Center before filing a CRA and to address and document efforts to resolve chronic absenteeism before referring a family to the FRC. See H. 5629, Sec. 3. Counsel can move to dismiss any school-based CRA filed after November 4, if the school does not comply with these new requirements.

The Bill of Rights is contained in a new section 23E to Chapter 119.  See H. 5629, Sec. 48.  It covers numerous areas important to the well-being of our child and young adult clients including: (1) safety and security; (2) connections to family, community and identity; (3) health care and accessibility; (4) education, employment and social connections; (5) resources and supports; and (6) transition age youth. The Bill of Rights provides a road map for counsel seeking to advocate for their child and young adult clients. Due to its focus on family, community, identity and reunification, it also serves as a useful tool for parents’ attorneys.  While virtually all the rights outlined in the new Section 23E already exist in other laws (e.g., state and federal constitutions, ADA, Title VI, state statutes, regulations and policies), by enshrining these rights in Chapter 119, we now have additional support for our advocacy. Numerous individuals and organizations collaborated for many years on this landmark legislation, both inside and outside CPCS. But we would be remiss if we did not acknowledge training attorneys Debbie Freitas and Cristina Freitas for drafting the initial version of the bill and working tirelessly to see it enacted into law.

 Other provisions of interest that go into effect November 5 include the following: 

• Adds new requirements for DCF to report to the DA and local law enforcement when a review is completed of multiple 51As under subsection 51B(r). See H. 5629, Sec. 6.
• Requires DCF to notify child’s counsel about specific events, including: change of placement; involvement or investigation related to any delinquency or criminal proceeding; hospitalization; 51A filed against child’s caregiver; and proceedings to suspend or expel child from school.  See H. 5629, Sec. 49.
• Requires DCF to “make available to the public, during regular business hours” a redacted record of its fair hearings. See H. 5629, Sec. 11.
• Requires DCF workers to present photo IDs, obtain a social worker license within 9 months, and participate in annual training. See H.5629, Sec. 6.
• Makes numerous changes to the responsibilities of the Office of the Child Advocate. See H. 5629, Sec. 12-41.
• Adds provisions to ensure children in DCF custody who must change schools are timely enrolled and requires schools to enroll children even when records normally required for enrollment are not available. See H.5629, Secs. 42 & 47.
• Amends G.L. c. 209A and c. 258E to provide that an abuse or harassment prevention order issued on behalf of a minor will remain in effect after the child turns 18, unless otherwise ordered by the court. See H. 5629, Secs. 56 & 59.
• Amends G.L. c. 209C to provide that if a complaint for de facto parentage is filed in the Juvenile Court, the Juvenile Court Rules apply, not the Mass Rules of Domestic Relations.  See H. 5629, Sec. 57."

NY - BULLYING AT SCHOOL IS ACTIONABLE

JA v. City of New York, 2026 NY Slip Op 2084 - NY: Appellate Div., 2nd Dept. 2026:

"VOUTSINAS, J.

Appeal by the plaintiffs, in an action to recover damages for personal injuries, etc., from an order of the Supreme Court (Kevin J. Kerrigan, J.), dated August 1, 2023, and entered in Queens County. The order, insofar as appealed from, granted that branch of the motion of the defendants City of New York, New York City Department of Education, and Catherine and Count Basie Middle School 72 which was for summary judgment dismissing the complaint insofar as asserted against the defendants New York City Department of Education and Catherine and Count Basie Middle School 72.

This appeal concerns whether the defendants New York City Department of Education (hereinafter DOE) and Catherine and Count Basie Middle School 72 (hereinafter the school) demonstrated, prima facie, that they did not have adequate notice of the alleged verbal and physical harassment and physical assaults that the infant plaintiff, J.A., a student at the school, was being subjected to or that the steps these defendants took to supervise J.A. and protect him from harm were adequate. We conclude that the DOE and the school (hereinafter together the DOE defendants) failed to establish, as a matter of law, that they did not have sufficient notice of the harassment and assaults or that they took adequate steps to properly supervise and protect J.A. We also conclude that because of the continuing wrong doctrine, the notice of claim served by the plaintiffs was timely with respect to all of the allegations.

I. Factual and Procedural Background

The instant matter presents a case of harassment and assault of a student by other students at his school. J.A. allegedly was bullied by his fellow students throughout the 2017-2018 school year, while a student at a public middle school located in Queens. The incidents began in October 2017 and continued through May 2018. J.A. allegedly was repeatedly verbally and physically harassed and physically assaulted by other students. On October 6, 2017, while under the supervision of the DOE defendants, a classmate identified as N. punched J.A. in the head and face during recess. On February 7, 2018, another classmate, identified as R., called J.A. a racial slur, kicked him, and threatened to jump him if he told a teacher. On March 6, 2018, J.A. was at a nearby store off school grounds when another classmate, identified as A., pushed J.A. to the ground. On April 13, 2018, another classmate, identified as O., threw a crate of books at J.A.'s head and then punched him on the left and right sides of his face. On May 21, 2018, J.A. was physically assaulted in a classroom, injuring his left eye. As a result of these incidents, J.A. suffered injuries to both of his eyes, his head, his face, and his teeth.

On May 25, 2018, J.A., through his mother, filed a notice of claim encompassing all of these incidents, alleging that the defendants provided negligent supervision of J.A. On January 3, 2019, J.A., by his mother, and his mother (hereinafter the plaintiff mother) suing individually, commenced this action against the City, the DOE defendants, and another defendant, alleging, inter alia, negligent supervision.

J.A. testified at his deposition about the incidents with his classmates. In describing the physical assault by N., J.A. stated that he was sitting on a bench when he was punched in the head and face. When J.A. came to his senses after blacking out, he had ringing in his ears, had blurry vision, and was spitting blood. As to the physical assault by R., R. called J.A. a racial slur, then R. got out of his seat and kicked J.A. When J.A. told a teacher about the incident with R., the teacher seemed to dismiss J.A.'s report, stating that she "could not deal with crazy." Regarding the incident during which O. threw a crate of books at J.A.'s head and punched him, J.A. testified that he and O. did not say anything to one another prior to the crate being thrown. After that incident, J.A. went to the nurse. The nurse contacted J.A.'s parents, who picked him up from the school. J.A. did not speak to any teachers or school administrators about the incident prior to being picked up. Concerning the incident on May 21, 2018, in which his left eye was injured, J.A. had no recollection of what happened, including who hit him. J.A. testified that N., O., and the other classmates who harassed him were all friends who "hung out" together.

The plaintiff mother testified extensively at her deposition concerning the school's response to the verbal and physical harassment of J.A., including additional incidents. She testified that following many of the incidents, she had to initiate contact with school administrators to learn what had happened, and she was not otherwise informed of the incidents. The plaintiff mother testified that following the incident with O., during which the crate of books was thrown at J.A., she went to the school's office to see its principal, Omotayo Cineus. Initially, Cineus did not want to see the plaintiff mother, but she refused to leave until Cineus spoke to her.

The plaintiff mother further testified that following the incident with N., she left numerous messages with Cineus and Thompson Young, the school's former dean of students. Eventually, a meeting was held with Cineus, three or four teachers, J.A., the plaintiff mother, N., and N.'s mother "to address the situation and prevent anything further from happening." The plaintiff mother also testified that the school nurse called to inform the plaintiff mother that another student had spat on J.A. The plaintiff mother further testified that she was informed by Young that J.A. was spat on accidentally. However, the plaintiff mother testified that J.A. reported that he was spat on three days in a row by the same student. Moreover, that student, prior to spitting on J.A. again, had called him a "bombing nigger" and a "terrorist." The plaintiff mother could not recall the student's name. She testified that she had contacted the school about these additional spitting incidents and left messages, but she did not receive a call back. A few days later, while the plaintiff mother was leaving the school after trying to meet with Cineus or Young about the spitting incidents, she was threatened by a female student, who told the plaintiff mother that the female student would put the plaintiff mother in a neck cast.

The plaintiff mother also testified that prior to the incident in February 2018, J.A. was kicked by a different student, identified as T. This kicking incident occurred in math class, while a substitute teacher was out of the classroom, making copies. The plaintiff mother initially contacted the school about the incident but received no reply. She had to ask a teacher about the incident during a standard parent teacher conference a week or two later. The plaintiff mother further testified about an incident during which a student identified as R. had threatened to punch J.A., prior to assaulting him later that day on the way to a school bus, and stated that R.'s threat was heard by a teacher. She testified that there was no meeting at the school following the assault by R.

In addition, the plaintiff mother testified that she learned of the incident in which O. threw the crate of books at J.A. from the school nurse, not administrative staff. J.A. told his mother that prior to O. throwing the crate at him, R. had whispered something to O., who became enraged and threw the crate. The plaintiff mother also described the incident at the store, where A. threw J.A. to the ground. The plaintiff mother testified that it was her understanding that her son's assailants were all friends. In addition, she testified that she repeatedly called and visited a school district superintendent's office to initiate a safety transfer for J.A.

Clevelon Akil, who became the dean of students at the school in January 2018, testified that since she was not the dean at the time of the incident in October 2017, she only became aware of it by reviewing an incident report. Akil testified that in February 2018, she investigated the incident during which R. hit J.A. on the way to the school bus. Akil testified that she spoke with a teacher who was present during that incident, J.A., R., and the plaintiff mother. Akil further testified that she became aware of the prior incidents involving J.A. after reviewing incident reports. Akil testified that despite her knowledge of the assaults on J.A. and the prior incident reports, she did not believe that J.A.'s safety was at risk or that there was a safety issue, describing the occurrences as "incidents [that] happen in middle school constantly." Akil testified that she did not know whether a specific plan was devised for J.A.'s safety and stated that while she believed that J.A. was eventually transferred to a different class, she could not recall when the transfer occurred or if it was related to the incidents.

Cineus testified that, as principal, she was familiar with J.A. She further testified that she remembered the incident during which N. struck J.A. and recalled that, prior to that incident, N. had taken J.A.'s phone from his bag. Cineus stated that following the incident, both J.A.'s and N.'s families were contacted. Cineus also recalled the incidents in February 2018, March 2018, and April 2018, and testified that prior to the incident with O. in April 2018, J.A. allegedly had made a joke about O.'s recently deceased father.

Cineus testified that she met with the plaintiff mother regarding these incidents on only three occasions. Cineus further testified that the school moved J.A. to a different class and provided him with a paraprofessional in response to the concerns of the plaintiff mother. Cineus also permitted J.A. to eat lunch in the school office, and she spoke with the students in his classes about being kind to one another. Cineus, however, could not recall precisely when these actions took place.

Motion for Summary Judgment

In May 2023, the City and the DOE defendants moved for summary judgment, among other things, dismissing the complaint insofar as asserted against the DOE defendants. They contended, inter alia, that the plaintiffs' claims concerning any incidents prior to February 23, 2018, should be dismissed as time-barred because the plaintiff failed to comply with General Municipal Law § 50-e and that the plaintiffs' claims concerning the remaining incidents, sounding in negligent supervision, should be dismissed, because the DOE defendants provided adequate supervision.

The plaintiffs opposed that branch of the motion, contending, among other things, that the DOE defendants were on notice of all of the incidents in the notice of claim and had more than sufficient time to investigate the incidents. The plaintiffs contended that the notice of claim was timely because the repeated incidents fell within the continuing wrong doctrine. The plaintiffs further contended that after the incidents began, the DOE defendants failed to adequately supervise J.A.

In an order dated August 1, 2023, the Supreme Court, inter alia, granted that branch of the motion. The court concluded that the claims concerning incidents that occurred prior to February 24, 2018 (90 days before the notice of claim was filed), were barred by General Municipal Law § 50-e for failure to serve a timely notice of claim. With respect to the plaintiffs' claims premised upon the incident on March 6, 2018, which happened at a store near the school, the court determined that the DOE defendants were not responsible for protecting the plaintiff from incidents that occurred off school grounds. As to the remaining incidents, the court determined that J.A.'s alleged injuries were not a result of lack of supervision. The plaintiffs appeal.

II. Legal Analysis

A. The Timeliness of the Notice of Claim.

A plaintiff commencing an action against a school district must, as a condition precedent, serve a notice of claim upon the school district within 90 days of a cause of action accruing (see Education Law § 3813[2]; General Municipal Law § 50-e). The notice of claim provides a municipal agency, in this case the DOE, "with an opportunity to timely and effectively investigate the claim" (Stiff v. City of New York, 114 AD3d 843, 843). "The test of sufficiency of a Notice of Claim is merely whether it includes information sufficient to enable the [municipality or agency] to investigate" (Brown v. City of New York, 95 NY2d 389, 393 [internal quotation marks omitted]).

This Court holds that the notice of claim was timely because the continuing wrong doctrine applies (see Motta v. Eldred Cent. Sch. Dist., 172 AD3d 1575). As a general rule, the continuing wrong doctrine may be "employed where there is a series of continuing wrongs and serves to toll the running of the limitations period to the date of the commission of the last wrongful act" (Garron v. Bristol House, 162 AD3d 857, 858-859). The continuing wrong doctrine allows a later accrual date of a cause of action "where the harm sustained by the complaining party is not exclusively traced to the day when the original wrong was committed" (Capruso v. Village of Kings Point, 23 NY3d 631, 639 [internal quotation marks omitted]). "The distinction is between a single wrong that has continuous effects and a series of independent wrongs" (York v. York, 235 AD3d 1032, 1034 [internal quotation marks omitted]).

This Court has not previously addressed the question of whether the period within which a notice of claim may be filed is tolled where there is a continuous pattern of harassment and/or unlawful conduct in a school setting and allegedly negligent supervision of a student by school administrators charged with a duty to properly supervise their students. In Motta v. Eldred Cent. Sch. Dist. (172 AD3d 1575, 1576-1577), a case factually similar to this one, the Appellate Division, Third Department, among other things, affirmed the Supreme Court's denial of a motion for summary judgment dismissing claims alleging negligence with respect to any incidents that occurred more than 90 days prior to the filing of a notice of claim. In Motta, the student was continually verbally taunted and harassed by the same group of students, he continually reported those incidents to school administrators, and the school was continuing to take action with regard to the student's complaints when the notice of claim was filed (see id. at 1577). The Motta Court found that "given the continuing nature of the alleged bullying and negligent supervision" and the fact that the defendant "had actual notice of the claim in time to properly investigate and obtain evidence," the notice of claim was timely with respect to all of the alleged incidents (id.).

This Court has, in analogous circumstances, concluded that a continuing violation tolls limitation periods. In Matter of Lozada v. Elmont Hook & Ladder Co. No. 1 (151 AD3d 860, 861), this Court held that the continuing violation doctrine applied to a hostile work environment claim because that claim, by its very nature, was predicated on a series of separate acts that constituted an unlawful discriminatory practice. In so doing, this Court noted that "`[a] continuing violation may be found where there is proof of specific ongoing discriminatory policies or practices, or where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice'" (id. at 861-862, quoting Clark v. State of New York, 302 AD2d 942, 945).

Similarly, in the context of an employment discrimination action, the Appellate Division, First Department, has held that claims sounding in negligent supervision begin to accrue on the date of the last underlying act (see Pichardo v. New York City Department of Education, 99 AD3d 606, 607).

Schools are obligated to provide students with a safe place to acquire an education. Children, on a daily basis, leave the safety of their homes to attend school, where their parents expect that they will be provided a safe place to grow and learn. While they have physical custody of these children, schools are said to act "in loco parentis," or in place of the parents, and in that role are required to provide the same protection and care for a child that a parent would provide (see e.g. Pratt v. Robinson, 39 NY2d 554).

Here, J.A. was a student with an individualized education plan (hereinafter IEP) who is contending, in essence, that he was subjected to a hostile educational environment through repeated harassment and assaults. The record establishes that the faculty and administration of the school were on notice of the allegations of a continuous pattern of harassment and assaults. The deposition testimony of Akil, Cineus, and the plaintiff mother indicates that the school had notice of every incident, which were recorded in the school's incident reporting system. Moreover, the plaintiff mother testified that she repeatedly contacted the DOE defendants to express her concerns for J.A.'s safety. Under these circumstances, the continuing wrong doctrine applies. The time period for the plaintiffs to file their notice of claim regarding all of the incidents began to run when the last incident occurred in May 2018. Furthermore, as discussed more fully below, questions of fact exist concerning whether the DOE defendants acted appropriately to adequately supervise J.A., given the DOE defendants' notice and knowledge. In addition, because the DOE defendants allegedly were aware of a continuing pattern of harassment, they had ample time to properly investigate the plaintiffs' claims and to obtain evidence. Accordingly, the Supreme Court erroneously concluded that the claims based on incidents that occurred outside the 90-day period prior to the filing of the notice of claim were time-barred (see Motta v. Eldred Cent. Sch. Dist., 172 AD3d 1575).

B. The DOE Defendants' Supervision of J.A.

As a threshold matter, to the extent that the plaintiffs allege damages for any injuries that occurred off school grounds, including any injuries resulting from the incident on March 6, 2018, which occurred at a nearby store, J.A. was no longer in the DOE defendants' custody and/or under their control during that incident. Accordingly, the DOE defendants cannot be liable for injuries arising from alleged incidents which occurred off school grounds (see Donofrio v. Rockville Ctr. Union Free Sch. Dist., 149 AD3d 805).

1. Notice to the DOE Defendants

"Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision" (Mirand v. City of New York, 84 NY2d 44, 49). "`[I]n determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow students, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably be anticipated'" (A.P. v. John W. Lavelle Preparatory Charter Sch., 228 AD3d 138, 150, quoting Mirand v. City of New York, 84 NY2d at 49). "Actual or constructive notice to the school of prior similar conduct is generally required, and injury caused by the `impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence absent proof of prior conduct that would have put a reasonable person on notice to protect against the injury-causing act'" (J.S. v. Ramapo Cent. Sch. Dist., 205 AD3d 947, 948, quoting Mirand v. City of New York, 84 NY2d at 48). "To find that a lack of adequate supervision is a proximate cause of a student's injury, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which causes the injury" (B.J. v. Board of Educ. of the City of N.Y., 172 AD3d 693, 694 [alteration and internal quotation marks omitted]).

Here, viewing the evidence in the light most favorable to the plaintiffs as the non-moving parties (see Qureschi v. Gleason, 231 AD3d 878, 879), the DOE defendants failed to establish, prima facie, that they did not have specific knowledge or notice of the dangerous conduct of J.A.'s classmates such that the acts that led to his injuries could not have been reasonably anticipated. As set forth in the discussion of the timeliness of the notice of claim, the DOE defendants had notice of the incidents that targeted J.A. On behalf of these defendants, Akil and Cineus testified that they were aware of the specific incidents wherein J.A. was assaulted and harassed. Moreover, the testimony of the plaintiff mother details the repeated instances when she either contacted school administrators to report incidents herself or was contacted by school employees other than the administrators concerning incidents involving J.A. She also testified that she and Young discussed that the students who were harassing J.A. all belonged to the same group of friends.

The evidence submitted in support of the motion clearly demonstrated that the DOE defendants had actual notice of the prior similar conduct by J.A.'s classmates and the continued verbal and physical harassment of J.A., which gave the DOE defendants an opportunity to take proper measures to protect J.A. while he was attending the school (see J.S. v. Ramapo Cent. Sch. Dist., 205 AD3d at 949; see also Nizen-Jacobellis v. Lindenhurst Union Free Sch. Dist., 191 AD3d 1007). Since the DOE defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them based on lack of notice, this Court need not consider the sufficiency of the plaintiffs' submission in opposition (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324-325).

2. The Adequate Supervision of J.A.

In examining the question of whether J.A. was adequately supervised, that determination "`depends largely on the circumstances attending the event'" (Sclafani v. Young Adult Inst., Inc., 240 AD3d 816, 817 [internal quotation marks omitted], quoting Mei Kay Chan v. City of Yonkers, 34 AD3d 540, 541). "The adequacy of a school's supervision of its students is generally left to the trier of fact to resolve, as is the question of whether inadequate supervision was the proximate cause of the plaintiff's injury" (id. at 817-818 [internal quotation marks omitted]; see also L.S. v. Massapequa Union Free Sch. Dist., 215 AD3d 708).

Here, viewing the evidence in the light most favorable to the plaintiffs as the non-moving party (see Qureschi v. Gleason, 231 AD3d 878, 879), the DOE defendants failed to establish, prima facie, that they provided adequate supervision to J.A. (see Sclafani v. Young Adult Inst., Inc., 240 AD3d at 818).

The record is replete with allegations of the DOE defendants' indifference to the alleged wrongful actions of J.A.'s classmates. For example, the incident in which J.A. was spat on was described as accidental, and when J.A. attempted to report the incident during which he was kicked in class, a teacher dismissed him by saying that she "could not deal with crazy." The school had knowledge of these repeated incidents, yet Akil, the dean, testified that she did not believe that J.A.'s safety was at risk or that there was a safety issue, describing J.A.'s experiences as incidents that "happen in middle school constantly." There is no indication in the record that any plan was devised for J.A.'s safety. Akil believed that J.A. was transferred to another class, however she could not recall when J.A. was transferred or whether it was related to the incidents. Cineus confirmed that J.A. was moved to another class and also testified that J.A. was provided with a paraprofessional. The record is unclear, though, as to whether the paraprofessional was provided based on J.A.'s IEP or as a result of the harassment and assaults he experienced. Cineus further testified that J.A. was permitted to eat lunch in the school office. However, other than providing J.A. with the paraprofessional and the option to eat lunch in the school office, there is no evidence presented to show what actions the DOE defendants took to protect J.A. Moreover, there is no evidence in the record demonstrating that the DOE defendants consequated the students allegedly harassing J.A. in an effort to stop their pattern of harassing and assaultive behavior, other than Cineus stating that she spoke to all of the students in J.A.'s classes and asked them to be kind to one another.

Under these circumstances, the DOE defendants failed to establish that any lack of supervision on their part was not a proximate cause of J.A.'s injuries (see RT v. Three Village School Central School District, 153 AD3d 747). Significantly, the deposition testimony of the school employees, including regarding their failure to prepare an individual safety plan for J.A., failed to eliminate triable issues of fact concerning whether the DOE defendants took adequate steps to supervise the plaintiff and prevent the incidents that led to J.A.'s injuries (see Sclafani v. Young Adult Institute, Inc., 240 AD3d at 818; J.S. v. Ramapo, 205 AD3d at 949; Nizen-Jacobellis v. Lindenhurst Union Free School District, 191 AD3d at 1008). Instead, the evidence indicates that despite their notice and knowledge, employees of the DOE defendants were indifferent to the harassment that J.A. was enduring, describing the incidents as merely the type that happen constantly at a middle school and testifying that they did not believe J.A.'s safety was at risk.

Given that the DOE defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them based on a showing that they provided J.A. with adequate supervision, this Court need not consider the sufficiency of the plaintiffs' opposition papers (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324-325).

III. Conclusion

Accordingly, the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the City and the DOE defendants which was for summary judgment dismissing so much of the complaint as was predicated on alleged incidents which occurred on school grounds, insofar as asserted against the DOE defendants, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from.

BARROS, J.P., CHRISTOPHER and WARHIT, JJ., concur.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendants City of New York, New York City Department of Education, and Catherine and Count Basie Middle School 72 which was for summary judgment dismissing so much of the complaint as was predicated on alleged incidents which occurred on school grounds, insofar as asserted against the defendants New York City Department of Education and Catherine and Count Basie Middle School 72, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiffs."

CHILD CUSTODY AND COVID - HOME SCHOOL OR PUBLIC SCHOOL

DRD v. JDD, 2021 NY Slip Op 21300 - NY: Supreme Court, Monroe 2021;

"In this matter, the Court must decide, in a contested divorce action, whether to issue a temporary order requiring the children to attend the public schools rather than be home schooled.

The father alleges that the children were enrolled in the public schools for the start of the 2021-2022 school year. The father appeared at the school on the first day and could not find his children. He was told that his wife had informed the District that neither of the children would attend school that year. As it turns out, the mother had informed the school district that she would home school the children and, thus, they did not attend school on the first day and have not since that date. Importantly, the father never agreed to have his wife home school the children and there is no evidence before this Court that the mother notified the father that she was home schooling the children this academic year or consulted with the father before implementing this choice.^[1] After the father learned of the children's absence from school, he brought an order to show cause to require the children to be enrolled immediately in the public schools. The mother filed papers in opposition.

The father has joint custodial rights in his children via a prior family court order. The father acknowledges that his older daughter struggled with remote learning in the prior year. His younger daughter has some health issues — a heart murmur and asthma — but neither ailment would preclude that younger child from attending the public schools. The mother lists no income but food stamps in her statement of net worth and there is no evidence of any employment. There is no evidence that she had a college degree or any experience as a teacher. She offered no evidence of any educational training.

The mother asserts, without any evidence, that mask wearing — required in the public schools — is unhealthy. The mother claims that mandatory vaccinations are against her religious beliefs but she offers no evidence that supports that conclusion. The mother reaches the conclusion that "home schooling offers what a public school cannot." The father opposes the home schooling, arguing that the program utilized by the mother for home schooling "provides shortcuts for parents who do not want to set up actual lesson plans for their home schooled children."

Importantly, the family court order granted the couple joint custody rights, which means that in the absence of parental agreement on home schooling, this Court must decide whether home schooling is in the children's best interests. When faced with this choice, the Court notes the court-appointed attorney for the two young children advocates returning them to the public schools. The younger daughter, in particular, wishes to return to the public schools, a position supported by the AFC. The AFC, in a written analysis forwarded to the Court and counsel, remains concerned that the children have told her that they had no written assignments, testing or required reading as part of the mother's home school requirements. In addition, there is no evidence of any oversight by the school district which approved the home schooling for these children. Given these deficiencies, the father is concerned that his children will fall behind academically.

This Court acknowledges that in the wake of the pandemic in New York, remote education through the internet was necessitated and the issue of "return to school" with attendant masking, social distancing and other requirements caused confusion and concern among parents and students. During the year when in-person public schools were unavailable, many children — and their parents — grew accustomed to learning at home, although the instruction was often broadcast by the school districts and curriculum and evaluation methods were overseen by the local districts. However, the Fall 2021 school year began in this couple's local school district with in-classroom instruction, subject to certain health-related requirements. At this stage of this proceeding, the Court must, in the context of a temporary order, determine, based on the available evidence, whether the children's best interests are served by continued home schooling — over the father's objection — or a return to the public schools — over the mother's objection.

Initially, the New York courts have made it clear that modifying a child's education plan without consultation and approval of a joint custodial parent can be a factor in changing or awarding custody. See Frawley v. Salvatore, 58 AD3d 678 (2d Dept 2009) (parent's decision to withdraw the subject children from school for home schooling as a factor in modifying custody); Matter of Michael B. v. Dolores C., 113 AD3d 517 (1st Dept 2014)(removing a child from school without consulting with the other parent violated joint custodial rights).

New York has a longstanding commitment to quality education for all students. The Education Law requires that children attend upon full-time instruction (Education Law § 3205[1][a]) at a public school or elsewhere (Education Law § 3204[2][I]) but the education must be "at least substantially equivalent to the instruction given to minors of like age and attainments at the public school of the city or district where the minor resides." The Family Court Act also requires parents to provide a child with an adequate education. Family Ct Act § 1012[f][I][A]; see Family Ct Act § 1046[b][I]. Matter of Isaac V. D. L. R. (Maria D. L. R.), 174 AD3d 622 (2d Dept 2019). While home schooling is permitted subject to approval by the local school district, the essential issue in the context of a temporary order in a divorce proceeding is whether the facts of the home schooling in this instance, overseen by this mother, are in the children's best interests. In that regard, the skills of the parent-instructor play a role. See Matter of Blerim M. v. Racquel M., 94 AD3d 562 (21st Dept 2012)(the court held that the mother's surreptitious home-schooling of the children, over the father's objections, despite being completely unqualified to do so was a factor in changing custody). As another court suggested, this Court should be especially attentive to the skills of the parent seeking to home school the children. The Appellate Division in Matter of Sloand v. Sloand, 30 AD3d 784, 786 (3d Dept 2006) noted with respect to a mother seeking to home school her children:

the mother is not able to sufficiently foster the child's intellectual development (citations omitted). Among other things, contrary to recommendations made by the child's teacher and principal, the mother intends to home school the child although she lacks teaching experience, has not had full-time employment since 1993, and has failed to respect the child's educational requirements, such as regular and punctual attendance

Id. See also Piazza v. Piazza, 2002 NY Misc. LEXIS 911 (Fam. Ct. Oswego Cty 2002)(mother seeking to home school never submitted any evidence to indicate the child's home school performance, nor did she present any home school curriculum used to instruct the child and therefore the child's best interests supported continued attendance at public schools).

The need for a competent educator to handle home schooling, even in the early grades, is well documented:

It seems almost axiomatic that — except in cases of exceptionally well-qualified parent-teachers and/or exceptionally able students — the day eventually and inevitably arrives when substantially equivalent home instruction can no longer be provided or maintained. Most parents simply cannot teach, nor can most students effectively teach themselves, advanced English or history, much less the intricacies of algebra, geometry, biology, chemistry, and physics.

In re Adam D., 132 Misc 2d 797 (Fam. Ct. Schoharie Cty 186). A further analysis of home schooling when a parent is not competent to teach is found in Matter of Bottorff v Bottorff, 2018 NY Misc. LEXIS 11094 (Fam. Ct. Oneida Cty 2018), aff'd 177 AD3d 1343 (4th Dept 2019). The Family Court there found:

. . . no proof as to the quality of the education that the mother was provid[ing]. The mother believed the children struggle with crowded spaces and in group settings, yet seemed content on not providing the children with avenues for socialization. The Court finds the earlier the children obtain sustained competent education, treatment and socialization the better; that developmental challenges, such as having difficulty in group settings, will only exasperate and become more pronounced as the children age into teenagers and beyond if not adequately addressed now. Moreover, based on the current dynamics between the parties and the children, the Court finds that allowing the mother to home school the children would excise the father from the children's education and further deteriorate the father's relationship with the children. As a result, the Court finds that it is not in the children's best interest to be home schooled.

Id at 19. The socialization benefits of public schooling have also been recognized. Matter of Wilson v Hendrickson, 88 AD3d 1092 (3d Dept 2011)(when enrolled in a pre-k school program, the child is able to make friends and interact with children her own age as factor supporting engaging in public school opportunities rather than staying at home).

In this matter, the children are young and, from one perspective, the educational requirements may be minor — simple reading, word recognition, arithmetic, phonetics, and introduction to science. But, these early instructional steps are the building blocks for advanced educational attainment and must be mastered to move into more intricate and advanced subject matter. Failure to master the building blocks may inhibit educational success at the higher levels and bred student frustration, distress and failure. Falling academically behind is a risk that children should avoid at all ages and conscientious parents, committed to their children's best interests, should not permit it to happen. In addition, the socialization benefits of public schools — interactions with friends and peers, exposure to other student from different backgrounds — are well-known. Finally, participation in school activities, sports and extracurriculars can be critically important in child development. In the papers before this Court, there is no evidence advanced by the mother that the daughters are obtaining age appropriate schooling or instruction or that the mother has the pedagogical competence to instruct the children. There is no evidence that the children have participated in school activities or extracurriculars or even been given the opportunity to do so. The mother's justifications for avoiding the public schools — that vaccinations are against her religious beliefs and "testing at school is medically inappropriate" — are offered without any evidence. The mother's claims that there are medical challenges for her daughters that might be impacted by attending the public schools lack any evidentiary support as well. Finally, as noted earlier, the father's custodial rights, established in a family court order, were violated when the mother unilaterally decided to home school the children. While she may have invited consultation about the children's schooling in a text to the father before the public schools started, she never indicated that she intended to home school the children, depriving the father of any input on that specific choice.

At this stage in this divorce action, the Court grants a temporary order requiring that the children be immediately enrolled in the appropriate public school, as participation in the public schools is, based on the evidence before this Court, in the children's best interests. The matter of best interests on a permanent basis remains to be decided after a hearing on all the issues raised in this divorce.^[2]

SUBMIT ORDER ON NOTICE NYCRR 202.48

[1] The mother, in her responding papers, offers two text messages sent to the father before school started. In one, dated August 3, 2021 (before school started), she states that there are "serious things to be discussed" regarding school for the children. There is nothing in the text that suggests the children will be home schooled. The mother also attached a series of texts which indicate she sought greater communication with the father which, she contends, never materialized. She sent a text to the father, after school started, and said that the children were being home schooled.

[2] If, at the conclusion of this proceeding, the proof establishes that home schooling would be in the best interests of these children, the Court can restore the home schooling that the mother seeks. In the meantime, the school district can evaluate the children's age and grade-appropriate educational attainment and insure that their skills match the district's and the state's requirements."

SEEKING A CHANGE IN SCHOOL AS A CHANGE IN CUSTODY?

That seems to be the real intent in this case. Dad in Long Island has kid on weekdays and Mom in Manhattan on weekends. But Mom wants to change school to a Manhattan school - which would eventually mean a change in residence and parenting time.

Verfenstein v Verfenstein, 2019 NY Slip Op 02583, Decided on April 3, 2019, Appellate Division, Second Department:

"The parties married in 2007, and in 2009 had one child together, who is biracial. The parties separated in 2010, at which time they agreed that the child would live with the mother in Queens. When the child began attending kindergarten, the parties agreed that the child would attend public school near the father's home in Port Washington, and would live in the father's home on weekdays during the academic year.

The father commenced this action for a divorce and ancillary relief in 2016. In August 2016, the mother, who had moved to Manhattan, moved for permission to enroll the child in the United Nations International School (UNIS) in Manhattan, contending that the child's educational and emotional well-being as a biracial child would be better suited by being in an ethnically and cultural diverse academic environment. In October 2016, the parties entered into a so-ordered stipulation in which they agreed to joint legal and physical custody of the child, with parental access as agreed between the parties. The stipulation did not resolve the issue of the child's school enrollment, so the Supreme Court directed a hearing on the mother's motion and ordered a forensic examination of the child. The parties and the child's paternal grandfather testified at the hearing, and the forensic examiner's report was admitted into evidence. The court also conducted an in-camera interview of the child. In an order dated August 10, 2017, the court denied the mother's motion, and the mother appeals.

The court's paramount concern in any custody dispute is to determine, under the totality of the circumstances, what is in the best interests of the child (see Eschbach v Eschbach, 56 NY2d 167, 171; Matter of Klein v Theus, 143 AD3d 984, 985; Matter of Gooler v Gooler, 107 AD3d 712, 712; Matter of Julie v Wills, 73 AD3d 777, 777). Inasmuch as a court's custody determination [*2]is dependent in large part upon its assessment of the witnesses' credibility and upon the character, temperament, and sincerity of the parents, the court's exercise of its discretion will not be disturbed if supported by a sound and substantial basis in the record (see Matter of Supangkat v Torres, 101 AD3d 889, 890; Matter of Reyes v Polanco, 83 AD3d 849, 850).

A multicultural environment "properly [is considered] to be very important for a biracial child" (Matter of Cisse v Graham, 120 AD3d 801, 805, affd 26 NY3d 1103). Here, however, the mother's contention that the child's intellectual and emotional well-being as a biracial child requires moving the child from the Port Washington school district to UNIS is not supported by the evidence. While the mother testified that she had looked into the diversity of the student body population in the Port Washington school district, she conceded that she did not know the percentage of biracial children attending UNIS. No evidence was presented that the child had been denied his biracial identity in the Port Washington school district, or that his status as a biracial child in that school district had hindered his academic or personal development. In addition, the mother conceded at the hearing that she had "no issues" with the Port Washington school district, and that the child had excelled academically at his current school. Accordingly, the Supreme Court's determination that it was not in the best interests of the child to change schools is supported by a sound and substantial basis in the record (see Matter of Davis v Davis, 240 AD2d 928, 929).

The mother's remaining contentions are without merit. The father's remaining contention is improperly raised for the first time on appeal. Accordingly, we agree with the Supreme Court's denial of the mother's motion for permission to enroll the child in UNIS.
"

DANGEROUS PLAY AT SCHOOL?

People's perception of what is school age appropriate activity and what is dangerous play can differ.

Chiauzzi v Sewanhaka Cent. High Sch. Dist., 2019 NY Slip Op 02310, Decided on March 27, 2019, Appellate Division, Second Department:

"On April 27, 2011, at approximately noon, the plaintiff, who was then in the eighth grade, allegedly sustained injuries on the exterior grounds of the defendant's school during her lunch recess. A short fence, approximately the same height as the plaintiff's knees, separated a grass area from a concrete walkway. The plaintiff and two of her friends took turns running and jumping over this fence. The incident occurred approximately 10 to 15 minutes into this activity, after the plaintiff and her friends had each taken five or six turns jumping over the fence. As the plaintiff attempted to jump over the fence, the middle of her right shin struck the fence, causing her to fall on the concrete walkway. The plaintiff testified at a General Municipal Law § 50-h hearing and her deposition that she did not see any school personnel outside the school building either before or at the time of the incident. The plaintiff subsequently commenced this personal injury action against the defendant. The defendant moved for summary judgment dismissing the complaint. The Supreme Court granted the motion, and the plaintiff appeals.

"Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision" (Mirand v City of New York, 84 NY2d 44, 49; see Santos v City of New York, 138 AD3d 968, 969). However, "[s]chools are not insurers of safety, . . . for they cannot reasonably be expected to continuously supervise and control all movements and activities of students" (Mirand v City of New York, 84 NY2d at 49; see Paca v City of New York, 51 AD3d 991, 992). Here, the defendant established, prima facie, that the plaintiff was engaged in an age-appropriate activity that did not constitute dangerous play, and that the alleged lack of supervision was not a proximate cause of the accident (see Gattyan v Scarsdale Union Free School Dist. No. 1, 152 AD2d 650, 651-652). In opposition, the plaintiff failed to raise a triable issue of fact."

ADHD AND SCHOOLS - KNOW YOUR RIGHTS

The U.S. Department of Education, Office of Civil Rights, has issued guidelines aimed at preventing schools from discriminating against the growing numbers of students with attention deficit hyperactivity disorder. In a letter to school districts and a “know your rights” document, the department said schools must obey existing civil rights law to identify students with the disorder and provide them with accommodations to help them learn.

See http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201607-504-adhd.pdf

DIVORCE - ADD ON CHILD EXPENSES

Michael J.D. v Carolina E.P. 2016 NY Slip Op 01252 Decided on February 18, 2016 Appellate Division, First Department:


" Where the court determines, having regard for the circumstances of the case and of the respective parties and in the best interests of the child, and as justice requires, that the present or future provision of post-secondary, private, special, or enriched education for the child is appropriate, the court may award educational expenses. The non-custodial parent shall pay educational expenses, as awarded, in a manner determined by the court, including direct payment to the educational provider.

While a court may direct a parent to contribute to a child's educational expenses, "even in the absence of special circumstances or a voluntary agreement of the parties" (Pittman, 127 AD3d at 757), in order to do so, the court must consider the circumstances of the case, the circumstances of the respective parties, the best interests of the children, and the requirements of justice (see Family Court Act § 413[1][c][7]; Domestic Relations Law § 240[1-b][f]; Manno v Manno, 196 AD2d 488, 491 [2d Dept 1993]). The trial court articulated no reason for ordering plaintiff to pay for private school, other than the informal discussions the parties had about their son's future while they briefly lived together, when the child was only a few months old. At the time of trial, the child was not yet school age, he was not enrolled in any regular educational program, and there is no record that the child has any special needs or gifts (see Friedman v Friedman, 216 AD2d 204 [1st Dept 1995] [religious grade school appropriate given religion's integral part of the family's lifestyle]; Matter of Prystay v Avildsen, 251 AD2d 87 [1st Dept 1998] [child had attended private school for five years and had only one year left]). The circumstances of these parties and their son does not present a justifiable basis to impose a private school obligation on plaintiff. Plaintiff's income, as it was determined by the trial court even after drawing adverse inferences to his claims, was not at a sufficiently high level that it alone provided a sufficient [*5]basis for requiring private school for the child.

The trial court also ordered that, commencing with the 2012-13 academic year until the child's graduation from high school, plaintiff is responsible for paying 100% of the child's extracurricular activities including after school, weekend and summer activities. No benchmark was provided on what these activities could include and there was no cap on how much they could cost. These expenses are not expressly enumerated add on expenses in the CSSA and the trial court failed to articulate why a deviation requiring their separate payment was appropriate in this case. While under certain circumstances these expenses may appropriately be considered an add on for child care (Domestic Relations Law § 240[1-b][c][4]; Family Court Act § 413[1][c][4]); Sieratzki v Sieratzki, 8 AD3d 552, 554 [1st Dept 2004]), here no recovery of child care costs was requested or warranted because defendant does not work or go to school and it is not her intention to do so. Consequently, in order for these additional expenses to be properly added to basic child support, the trial court needed to articulate the basis for the deviation. Only by articulating the factors relied on in deciding to deviate from the presumptively correct basic child support can a trial court justify its decision to deviate therefrom because the exercise of judicial discretion in child support awards is narrowly circumscribed (Rubin, 107 AD3d 60, 72; see also Bohnsack v Bohnsack, 185 AD2d 533, 535 [3d Dept 1992]). Given the parties' brief time living as a family, it cannot be said that a standard of living was established for the child. The trial court primarily based its award on the conclusion that had the family remained intact, the child, as the son of a lawyer, would have probably enjoyed a certain standard of living. The consideration of this solitary factor, coupled with the court's own determination of the parties' financial resources, does not, however, support the addition of unlimited add on extracurricular expenses that deviate from basic child support."

AT CLE TODAY

On School Law - at the Nassau County Bar Association. I will be able to return calls.

NYS EDUCATION LAW - CHILD DOES NOT LIVE IN SCHOOL DISTRICT

This was in a series of earlier blogs but the following news story will illustrate what how far some school districts will go:

A homeless woman from Bridgeport who enrolled her 6-year-old son at a Norwalk elementary school has become the first in the city to be charged with stealing more than $15,000 for the cost of her child's education.

NYS EDUCATION LAW - CHILD DOES NOT LIVE IN SCHOOL DISTRICT

As a final note, here is another recent decision from the Department of Education which will illustrate the issues regarding a change in residence. In summary, this is the issue facing parents in foreclosure and/or divorce. With respect to foreclosure:

1. If the school discovers that there has been a change of residence, the school has the option of excluding the child from the school. If it exercises that option, it also has the option to:

A. Permit the continued education of the child provided that the parents pay future tuition and reimburse for past tuition (which varies from district to district and can be high).

B. Exclude the child and start a court action for full reimbursement.

With respect to divorce, additional questions arise. The school of course has the same options as in foreclosure and can seek reimbursement (the liability again belonging to both parents) as set forth above. But what if the parents have consented to a parenting plan in which the child spends an equal amount of time at both residences? This must be addressed by attorneys for the spouses in the situation where such a parenting plan is adopted and the child is not attending a private education institution. And if the child is attending a public school and there is a change in residence but not a change in schools, the issue of a possible claim for reimbursement must be addressed in resolving the financial aspects of a divorce.

And what is interesting to note that in the following case, the issue was raised by an "anonymous report". This should alert parents that the "anonymous report" can be from a neighbor, an angry spouse, the school checking foreclosure notices, etc.

"Appeals of C.R., on behalf of her children B.R., M.R, B.R. and P.R., from action of the Board of Education of the Clarkstown Central School District regarding residency.

Decision No. 15,642

(August 20, 2007)

Feerick Lynch MacCartney, PLLC, attorneys for petitioner, Mary E. Marzolla, Esq., of counsel

Lexow, Berbit & Associates, P.C., attorneys for respondent, Susan Mills Richmond, Esq., of counsel

MILLS, Commissioner.--In two separate appeals, petitioner challenges the determination of the Board of Education of the Clarkstown Central School District (“respondent”) that her children are not district residents entitled to attend its schools tuition-free. Because the appeals present similar issues of fact and law, they are consolidated for decision. The appeals must be dismissed.

Petitioner is the mother of two sets of twins. During the 2006-2007 school year, twins B.R. and M.R. attended first grade, and twins B.R. and P.R. attended fourth grade in respondent’s district.

From 1997 until 1999, petitioner and the children’s father lived at Tennyson Drive, Nanuet, within respondent’s district. The residence at Tennyson Drive was owned by petitioner’s sister and is divided into two apartments.

In 1999, petitioner and the children’s father married and purchased a home at Green Bower Lane in New City, outside respondent’s district. Petitioner claims the family lived at the Green Bower Lane residence until petitioner and her husband separated “informally” in 2001.

After the separation, petitioner claims that she and the four children moved back to Tennyson Drive to live with her sister and mother in the home’s 774 sq. ft. lower-level apartment. Petitioner claims that her husband continues to reside alone at the Green Bower Lane residence, that the children regularly visit him there and that these visits include dinners and sleepovers.

On February 13, 2007, respondent received an anonymous report that petitioner resided outside its district. Based on this information, respondent hired an investigator to conduct surveillance on both the Tennyson Drive and Green Bower Lane residences.

On February 27, 2007, the investigator observed petitioner and two of the children arrive at the Tennyson Drive residence at approximately 6:54 a.m. The children exited the house and boarded respondent’s school bus at approximately 8:13 a.m. At approximately 3:05 p.m., the two children boarded respondent’s school bus and arrived at the Tennyson Drive residence at 3:30 p.m. At 3:39 p.m., petitioner and all four children exited the Tennyson Drive residence and drove to the Green Bower Lane residence.

On March 1, 2007, the investigator observed petitioner’s car at the Green Bower Lane residence at approximately 5:35 a.m. At approximately 6:09 a.m., petitioner and two of the children left the Green Bower Lane residence and drove to Tennyson Drive. The children exited the Tennyson Drive residence and boarded respondent’s school bus at 8:10 a.m.

On March 13, 2007, at approximately 6:44 a.m., the investigator observed petitioner, her husband, and all four children leave the Green Bower Lane residence in petitioner’s car.

By letter dated March 21, 2007, respondent’s supervisor of student support and community services (“supervisor”) notified petitioner that the district had obtained information indicating that petitioner was not a district resident. The letter stated that if petitioner failed to produce evidence of residency by March 30, 2007, all four children would be excluded from respondent’s schools after that date.

By letter dated April 10, 2007, petitioner produced copies of several documents to support her claim of residency, including her driver’s license, electric and gas bills for Tennyson Drive from 2002 through 2007, her automobile insurance identification card for a policy issued March 30, 2007, and her automobile registration, which was dated April 5, 2007. Petitioner also submitted a deed dated April 2, 2007 in which her sister transferred one-half of the Tennyson Drive property to petitioner.

In addition, petitioner produced notarized documents from her sister and mother stating that petitioner and the children live with them at Tennyson Drive. Petitioner also submitted several letters to support her residency claim, including one from a neighbor at Tennyson Drive and another from a woman who administered a speech language evaluation to one of the children at the Tennyson Drive residence in 2003.

By letter dated April 17, 2007, respondent’s director of business services (“director”) affirmed the determination that petitioner was not a district resident and stated that the children would be excluded from respondent’s schools after April 25, 2007. This appeal ensued. Petitioner’s request for interim relief was granted on April 26, 2007.

On May 15, 2007, petitioner served respondent with a second appeal in this matter (“second appeal”). The second appeal presents similar issues of fact and law and includes additional information in support of petitioner’s residency claim, including affidavits from her husband, sister and mother, and receipts for painting and the installation of new windows at the Tennyson Drive residence.

Petitioner claims, inter alia, that she is a district resident and that her children are entitled to attend respondent’s schools tuition-free. Petitioner also seeks an award of costs and attorney fees.

Respondent claims that petitioner resides outside its district and seeks tuition reimbursement in the amount of $87,099.11. Respondent also urges that petitioner’s second appeal not be considered on the grounds that it is an improper attempt to introduce evidence intended to buttress the claims asserted by petitioner in her original appeal.

Education Law §3202(1) provides, in pertinent part:

A person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition.

The purpose of this statute is to limit the obligation of school districts to provide tuition-free education to students whose parents or legal guardians reside within the district (Appeal of Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of G.P., 44 id. 52, Decision No. 15,096; Appeal of Chorro, 44 id. 50, Decision No. 15,095). “Residence” for purposes of Education Law §3202 is established by one’s physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109; Appeal of W.D. and P.Z-D., 44 id. 77, Decision No. 15,104). A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of Innocent, 44 Ed Dept Rep 81, Decision No. 15,105).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101; Appeal of I. B., 44 id. 44, Decision No. 15,093; Appeal of Hauk, 44 id. 36, Decision No. 15,090). In an appeal to the Commissioner, the 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; Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101).

Petitioner claims that after she and her husband entered into an “informal and amicable” separation, she and the children moved back to her sister’s Tennyson Drive residence. To support her claim, petitioner submits several documents that list Tennyson Drive as her address. However, several of these documents originated after respondent’s residency investigation began. For example, the insurance and registration on petitioner’s car are dated March 30 and April 5, 2007, respectively. In addition, the deed from petitioner’s sister transferring a one-half interest in the Tennyson Drive property to petitioner is dated April 2, 2007.

In the second appeal, petitioner includes affidavits from her husband, sister, and mother -– each supporting the claims made in petitioner’s original appeal. Petitioner also includes receipts dated July 24, 2006 and January 19, 2007 indicating that she paid for improvements made to the Tennyson Drive residence.

While petitioner’s documentation indicates that she uses Tennyson Drive as her mailing address and may have paid some utility and repair bills for that residence, they are not dispositive of petitioner’s residency, particularly in light of the district’s investigation. Respondent also submitted evidence that petitioner and her husband remain co-owners of the Green Bower Lane residence, for which petitioner claims a STAR exemption.

Further, in response to the second appeal, respondent submitted an affidavit from its investigator stating that he interviewed a neighbor of the Tennyson Drive address. The neighbor stated that, “on a daily basis,” petitioner brings the children to the Tennyson Drive residence, where they board respondent’s school bus in the morning; that the children ride the bus to Tennyson Drive in the afternoon; and that petitioner and the children “would leave in the early evening and return the next day.”

Respondent also submitted affidavits from three of the children’s teachers stating that they have each had difficulty reaching petitioner at the Tennyson Drive address. One teacher stated, “Every time I called the in-district house, [petitioner] was never home. The grandmother stated that [petitioner] would get back to me ... [N]either child was able to learn nor repeat back his/her address or phone number.”

Based on the record before me, I find that petitioner has failed to establish that her children are district residents entitled to attend respondent’s schools tuition-free. Accordingly, respondent’s determination is neither arbitrary nor capricious and will not be set aside.

Although the petitions must be dismissed on the record before me, I note that petitioner has the right to reapply to the district for admission on her children’s behalf if circumstances have changed.

With respect to petitioner’s request for costs and attorney fees, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Appeal of T.R. and M.D., 43 Ed Dept Rep 411, Decision No. 15,036; Appeal of L.D. and M.D., 43 id. 144, Decision No. 14,947; Appeal of Moore, 41 id. 436, Decision No. 14,738).

With respect to respondent’s claim for tuition reimbursement from petitioner in the amount of $87,099.11, I note that the Commissioner has historically declined to award tuition in residency appeals (Appeal of Crowley, 43 Ed Dept Rep 383, Decision No. 15,025; Appeal of Baronti, 42 id. 140, Decision No. 14,802; Appeal of a Student with a Disability, 41 id. 52, Decision No. 14,613). Such relief should be sought in a court of competent jurisdiction (Appeal of Crowley, 43 Ed Dept Rep 383, Decision No. 15,025).

THE APPEALS ARE DISMISSED."

NYS EDUCATION LAW - CHILD DOES NOT LIVE IN SCHOOL DISTRICT

Here is another recent case. It illustrates the procedures involved. An investigation is done on residencey (here it was a temporary change). The school board sent a request for school tuition reimbursement and the issue of repayment must now be resolved in a regular court and not the DOE:

"Appeal of O.S. and D.S., on behalf of their children J.S. and K.S., from action of the Board of Education of the Herricks Union Free School District regarding residency.

Decision No. 16,201

(February 17, 2011)

Regina Brandow, P.C., attorneys for petitioner, Regina Brandow, Esq., of counsel

Jaspan Schlesinger LLP, attorneys for respondent, Lawrence J. Tenenbaum, Esq., of counsel

STEINER, Commissioner.--Petitioners appeal the determination of the Board of Education of the Herricks Union Free School District (“respondent”) that their children are not district residents. The appeal must be dismissed.

Petitioners have four children, two of whom, J.S. and K.S., are school age. On or about August 15, 2009, petitioners and their children moved into O.S.’s parents’ home on Bellwood Drive in New Hyde Park (“Bellwood address”), in respondent’s district. Thereafter, they registered J.S. and K.S. in the district’s schools. On or about September 15, 2009, O.S.’s father purchased a home on Hillside Boulevard in New Hyde Park (“Hillside address”), outside respondent’s district. Following an investigation, on or about December 9, 2009, the superintendent notified petitioners that J.S. and K.S. were not district residents and would be excluded from the district’s schools, effective December 18, 2009. O.S. and her mother met with the superintendent on December 16, 2009 and stated that petitioners still lived at the Bellwood address.

Additional surveillance was conducted and by letter dated March 9, 2010, the superintendent advised petitioners that their residency in the district was in question. After a residency meeting on March 22, 2010, the superintendent notified petitioners by letter dated March 23, 2010, that J.S. and K.S. were not district residents and would be excluded from attending district schools effective April 5, 2010. The district further claimed back tuition in the amount of $10,529.40 for each child for the period of September 1, 2009 through April 5, 2010. On April 13, 2010, petitioners appealed the superintendent’s decision to respondent. Respondent denied petitioners’ appeal and this appeal ensued.

Petitioners allege that they resided at the Bellwood address from September 2009 through April 5, 2010 while they were renovating the Hillside address. Petitioners request a determination that J.S. and K.S. were residents of the district, entitled to attend its schools without payment of tuition, from September 2009 through April 5, 2010.

Respondent maintains that it properly determined that petitioners’ children were not district residents and that the appeal is moot. Respondent also challenges the scope of petitioners’ reply.

The appeal must be dismissed as moot. The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836). Petitioners withdrew J.S. and K.S. from the district’s schools in April 2010. Accordingly, their residency is no longer at issue.

Petitioners argue that the appeal is not moot because respondent has sent them non-resident tuition bills for the period from September 2009 through April 5, 2010 when J.S. and K.S. attended school in the district. The Commissioner has historically declined to award tuition in residency appeals (Appeal of Clark, 48 Ed Dept Rep 337, Decision No. 15,876; Appeal of C.S., 47 id. 407, Decision No. 15,737). Such relief should be sought in a court of competent jurisdiction (Appeal of Clark, 48 Ed Dept Rep 337, Decision No. 15,876; Appeal of C.S., 47 id. 407, Decision No. 15,737). Therefore, any discussion of the merits of petitioners’ residency claim for the time period at issue would be advisory in nature. It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of a Student with a Disability, 48 Ed Dept Rep 411, Decision No. 15,899; Appeal of Waechter, 48 id. 261, Decision No. 15,853). Accordingly, the appeal must be dismissed (see Appeal of Butler and Dunham, 50 Ed Dept Rep __, Decision No. 16,103; Appeal of Azatyan, 49 Ed Dept Rep 65, Decision No. 15,959).

THE APPEAL IS DISMISSED."

NYS EDUCATION LAW - CHILD DOES NOT LIVE IN SCHOOL DISTRICT

Here is a typical fact pattern of what happens in a divorce situation with respect to the child continuing in a school district:

"Appeal of GARY HELMS, on behalf of his son, DAVID, from action of the Board of Education of the Deer Park Union Free School District regarding residency.

Decision No. 13,668

(August 28, 1996)

Arnold J. Hauptman, Esq., attorney for petitioner

Cooper, Sapir & Cohen, P.C., attorneys for respondent, Robert E. Sapir, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals respondent's determination that his son, David, is not a resident of the Deer Park Union Free School District ("district") and is, therefore, not entitled to attend its schools tuition-free. The appeal must be dismissed.

At the beginning of the 1995-96 school year, David lived with his parents at 12 Hendel Circle, Deer Park, and attended the district's high school. In December 1995, petitioner became involved in a divorce action with David's mother. As a result of this dispute, on January 4, 1996, petitioner and his son moved to 19 Bagatelle Road, Dix Hills, an address located outside the district. David's mother continues to reside at 12 Hendel Circle, in the district.

In the context of the pending divorce action, both petitioner and David's mother have sought custody of David. However, there is no evidence that the court has issued a temporary or permanent order concerning custody.

By letter dated March 26, 1996, the district's attendance teacher notified petitioner that since he and David resided outside the district, David was no longer eligible to attend the district's schools. Petitioner's attorney appealed the decision to respondent. On April 2, 1996, respondent denied the appeal.

Petitioner commenced this appeal on April 4, 1996 and requested an interim order. On April 16, 1996, Acting Commissioner Sheldon issued an interim order directing respondent to admit David to the district's schools pending a determination on the merits.

Petitioner contends that his residence outside the district is temporary. Petitioner further contends that until the court determines custody, David's residence remains in the district. Respondent maintains that petitioner and his son reside at an address outside the district. Respondent further maintains that there is no evidence that David will ever return to reside in the district.

Education Law '3202(1) provides, in pertinent part:

A person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition.

A child's residence is presumed to be that of his parents (Appeal of Juracka, 31 Ed Dept Rep 282; Appeal of Forde, 29 id. 359). Where a child's parents live apart, the child can have only one legal residence (People ex. rel. The Brooklyn Children's Aid Society v. Hendrickson, et al., 54 Misc 337, 104 NYS 122, aff'd. 196 NY 551; Appeal of Juracka, supra; Matter of Manning, 24 Ed Dept Rep 33). Where a child's time is divided between two households, the determination of the child's residence rests ultimately with the family (Appeal of Juracka, supra; Appeal of Forde, supra).

In this case, it is undisputed that David lives with petitioner outside the district. Further, there is no evidence that David spends any time at his mother's residence in the district.

There is insufficient evidence in the record to support petitioner's assertion that his residence outside the district is temporary. The record indicates that petitioner and his son moved to an apartment outside the district. Although petitioner contends that he will seek possession of the marital residence if the court awards him custody, it is not known when and if he will in fact return to the marital residence. Further, there is no evidence that petitioner intends to make arrangements to establish another residence in respondent's district if he cannot return to the marital residence. In addition, the record is devoid of any evidence that petitioner continues to maintain significant community ties within the district other than his son's continued attendance in the district's schools. Therefore, I am unable to conclude on the record before me that petitioner is in fact temporarily housed outside the district and is actively taking steps to return there (Appeal of Kenneth R., 30 Ed Dept Rep 297).

It appears from the record that it is petitioner's intention to gain permanent custody of David and to have him continue to reside with him. Since residence is based upon an individual's physical presence within the district and intention to remain (Appeal of Kind, 32 Ed Dept Rep 584; Appeal of Bonfante-Ceruti, 31 id. 38), I find that respondent correctly concluded that David does not reside within the district.

Education Law '3202(2) authorizes a school district to condition a nonresident's enrollment in its schools upon the payment of tuition. Since David is not a resident of respondent's district, respondent has the authority to require petitioner to pay tuition as a condition of David's continued enrollment. To the extent petitioner pays school taxes on his property in respondent's district, he is entitled to a deduction from the established tuition in the amount of such tax, as provided in Education Law '3202(3).

Finally, I note that David's residency status may change in the event David's mother is awarded custody or if petitioner moves back into respondent's district. In either event, the child's status should be re-evaluated by respondent.

THE APPEAL IS DISMISSED."

NYS EDUCATION LAW - CHILD DOES NOT LIVE IN SCHOOL DISTRICT

Here is the statute from the NYS Education Law:

"§ 3202. Public schools free to resident pupils; tuition from
nonresident pupils. 1. A person over five and under twenty-one years of
age who has not received a high school diploma is entitled to attend the
public schools maintained in the district in which such person resides
without the payment of tuition. Provided further that such person may
continue to attend the public school in such district in the same
manner, if temporarily residing outside the boundaries of the district
when relocation to such temporary residence is a consequence of such
person's parent or person in parental relationship being called to
active military duty, other than training. Notwithstanding any other
provision of law to the contrary, the school district shall not be
required to provide transportation between a temporary residence located
outside of the school district and the school the child attends. A
veteran of any age who shall have served as a member of the armed forces
of the United States and who shall have been discharged therefrom under
conditions other than dishonorable, may attend any of the public schools
of the state upon conditions prescribed by the board of education, and
such veterans shall be included in the pupil count for state aid
purposes. A nonveteran under twenty-one years of age who has received a
high school diploma shall be permitted to attend classes in the schools
of the district in which such person resides or in a school of a board
of cooperative educational services upon payment of tuition under such
terms and conditions as shall be established in regulations promulgated
by the commissioner; provided, however, that a school district may waive
the payment of tuition for such nonveteran, but in any case such a
nonveteran who has received a high school diploma shall not be counted
for any state aid purposes. Nothing herein contained shall, however,
require a board of education to admit a child who becomes five years of
age after the school year has commenced unless his birthday occurs on or
before the first of December.
1-a. No pupil over the compulsory attendance age in his or her school
district shall be dropped from enrollment unless he or she has been
absent twenty consecutive school days and the following procedure is
complied with: The principal or superintendent shall schedule and
notify, in writing and at the last known address, both the student and
the person in parental relation to the student of an informal
conference. At the conference the principal or superintendent shall
determine both the reasons for the pupil's absence and whether
reasonable changes in the pupil's educational program would encourage
and facilitate his or her re-entry or continuance of study. The pupil
and the person in parental relation shall be informed orally and in
writing of the pupil's right to re-enroll at any time in the public
school maintained in the district where he or she resides, if otherwise
qualified under this section. If the pupil and the person in parental
relationship fail, after reasonable notice, to attend the informal
conference, the pupil may be dropped from enrollment provided that he or
she and the person in parental relation are notified in writing of the
right to re-enter at any time, if otherwise qualified under this
section.
2. Nonresidents of a district, if otherwise competent, may be admitted
into the school or schools of a district or city, upon the consent of
the trustees or the board of education, upon terms prescribed by such
trustees or board.
3. The school authorities of a district or city must deduct from the
tuition of a nonresident pupil, whose parent or guardian owns property
in such district or city and pays a tax thereon for the support of the
schools maintained in such district or city, the amount of such tax.

4. a. Except as provided in subdivision five of this section, the cost
of instruction of pupils placed in family homes at board by a social
services district or a state department or agency shall be borne by the
school district in which each such pupil resided at the time the social
services district or state department or agency assumed responsibility
for the placement, support and maintenance of such pupil; provided,
however, that such cost of instruction shall continue to be borne, while
such pupil remains under the age of twenty-one years, by any social
services district or state department or agency which assumed
responsibility for tuition costs for any such pupil prior to January
one, nineteen hundred seventy-four. Where a pupil is placed pursuant to
this subdivision outside the pupil's school district of residence at the
time of such placement, the cost of instruction shall be borne by the
district of residence and the tuition paid to the school district
furnishing instruction shall be computed as provided in paragraph d of
this subdivision, except that, where the family home at board receives
program support from a child care institution affiliated with a special
act school district as defined in subdivision eight of section four
thousand one of this chapter, and the board of education of such
district furnishing instruction, upon the recommendation of its
committee on special education, contracts for such pupil's education
pursuant to paragraph c, d, e, or f of subdivision two of section
forty-four hundred one of this chapter or for a nonresidential placement
pursuant to paragraph l of such subdivision, costs incurred shall be
reimbursed in accordance with paragraph e of this subdivision.
Notwithstanding any inconsistent provision of law, where the permanent
residence of a pupil is outside of the state, the school district in
which the pupil was located at the time the public agency placed such
pupil shall be deemed the district of residence of such pupil for
purposes of this subdivision and shall be responsible for the cost of
instruction of such pupil.
b. Children cared for in free family homes and children cared for in
family homes at board, when such family homes shall be the actual and
only residence of such children and when such children are not supported
and maintained at the expense of a social services district or of a
state department or agency, shall be deemed residents of the school
district in which such family home is located.
c. Children cared for in free family homes and children cared for in
family homes at board, when such family homes are not the actual and
only residences of such children and when such children are not
supported and maintained at the expense of a social services district or
of a state department or agency, and who apply for the first time for
admittance to the schools of the district in which such family home is
located during the school year 1973--1974 shall be admitted upon terms
and conditions including the payment of tuition, established by the
board of education of such school district, unless such board of
education shall establish to the satisfaction of the commissioner that
there are valid and sufficient reasons for refusal to receive such
children.
d. For the purposes of this subdivision, tuition shall be fixed in an
amount which represents the additional operating cost to the school
district resulting from the attendance of a child for whom tuition is
required, computed in accordance with a formula established by the
commissioner of education.
e. Where the board of education of a school district furnishing
instruction for a pupil placed pursuant to this subdivision in a family
home at board that receives program support from a child care
institution affiliated with a special act school district, other than

the board of the pupil's school district of residence as defined in
paragraph a of this subdivision, upon the recommendation of its
committee on special education, contracts for the instruction of such
pupil pursuant to paragraph c, d, e, or f of subdivision two of section
forty-four hundred one of this chapter or for a nonresidential placement
pursuant to paragraph l of such subdivision, such board shall submit a
claim to the commissioner for current year reimbursement of costs
incurred for such pupil. The commissioner shall pay such claim in
accordance with the applicable provisions of section thirty-six hundred
nine-b of this chapter and shall be reimbursed by the school district
identified as the pupil's school district of residence as defined in
paragraph a of this subdivision. The commissioner shall deduct the
amount of such claim from moneys otherwise due the school district of
residence.
f. The identity of the school district of residence at the time the
public agency placed the pupil pursuant to paragraph a or paragraph e of
this subdivision shall be established in accordance with the following
procedure:
(i) Within ten days of the placement of such pupil, the public agency
or its designee shall give written notice of such placement to the board
of education of the school district believed to be the school district
of residence. 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 residence as defined in
paragraph a of this subdivision.
(ii) A board of education of a school district which receives
notification pursuant to subparagraph (i) of this paragraph may submit
to the public agency, within ten days of its receipt of such notice,
additional evidence to establish that it is not the pupil's district of
residence as defined in paragraph a of this subdivision. Any evidence so
submitted shall be considered by the agency prior to making its final
determination, which shall be made no later than five days after the
agency's receipt of such additional evidence. In the event such school
district fails to submit additional evidence within such ten day period,
the determination of the public agency shall be final and the
notification provided pursuant to subparagraph (i) of this paragraph
shall be deemed final notification of such determination.
(iii) If, upon its review, the public agency determines that the
school district notified pursuant to subparagraph (i) of this paragraph
was not the pupil's district of residence, the public agency shall send
notification to the correct school district, in the form prescribed by
subparagraph (i) of this paragraph. Alternatively, if, upon its review,
the public agency determines that the school district originally
designated pursuant to subparagraph (i) of this paragraph is the pupil's
district of residence the public agency shall notify such district in
writing of its final determination.
(iv) The board of education of the school district finally determined
by the public agency to be the pupil's school district of residence may
appeal such determination to the commissioner within thirty days of its
receipt of final notification pursuant to this paragraph. Such an appeal
shall be conducted in the same manner as an appeal from the actions of
local school officials pursuant to section three hundred ten of this
chapter, except that the factual allegations of the petitioner shall not
be deemed true in the event the public agency elects not to appear in
the appeal. The petitioner shall join as a party to the appeal any other
school district suspected to be the pupil's actual school district of
residence.

(v) If the commissioner finds that the school district notified
pursuant to subparagraph (i) or (iii) of this paragraph was not the
pupil's school district of residence as defined in paragraph a of this
subdivision and that the correct school district was not joined as a
party to the appeal, the commissioner shall direct the public agency to
notify the correct school district pursuant to subparagraph (i) of this
paragraph.
(vi) Notwithstanding any inconsistent provisions of law, during the
pendency of all proceedings to review a denial of financial
responsibility, the commissioner shall issue an interim order assigning
such financial responsibility to the school district or, alternatively,
upon a determination that the public agency failed to make reasonable
efforts to identify the residence of such child, to the public agency.
In 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, and the state comptroller
shall withhold such amount from any moneys due the county or the city of
New York, on vouchers certified or approved by the commissioner, in the
manner prescribed by law or shall transfer such amount from the account
of such state department or agency upon certification of the
commissioner, and such funds shall be credited to the general support
for public schools local assistance account of the department.
(vii) Any final determination or order of the commissioner concerning
the school district of residence of any pupil under this section may
only be reviewed in a proceeding brought in the supreme court pursuant
to article seventy-eight of the civil practice law and rules. In any
such proceeding under such article seventy-eight, the court may grant
any relief authorized by the provisions of section seventy-eight hundred
six of such law and rules and may also, in its discretion, remand the
proceedings to the commissioner. A local social services commissioner or
any state department or agency placing pupils pursuant to this
subdivision is a proper party in any such appeal or proceeding.
(viii) Upon completion of all proceedings to review the denial of
financial responsibility for the costs of instruction pursuant to this
paragraph, the commissioner shall refund any payments made by a party
cleared of such responsibility and shall collect any payments owed by a
party found to have such responsibility. Where such transactions involve
a school district liable for reimbursement pursuant to paragraph e of
this subdivision, the commissioner shall appropriately increase or
decrease the moneys due a school district by such amount in accordance
with the provisions of section thirty-six hundred nine-b of this
chapter. Where such transactions involve the public agency making a
placement pursuant to this subdivision, the comptroller shall increase
or decrease the moneys due such public agency by such amount upon
certification of the commissioner, transferring such amount to or from
the account of such state department or agency to or from the general
support for public schools local assistance account of the department.
g. If within ninety days from the entry of an order or judgment of a
court of competent jurisdiction or the receipt of a decision of the
commissioner pursuant to section three hundred ten of this chapter,
determining the responsibility of a school district to pay tuition for a
pupil in accordance with the provisions of paragraph a of this
subdivision or of section five hundred four of the executive law, such
school district has not made payment to the school district providing

instruction to such pupil, the school district entitled to such payment
may make application to the commissioner to receive a sum in the amount
of such tuition from the apportionment of public money payable to the
school district required to pay such tuition. The application for
payment shall be accompanied by a certified copy of the order or
judgment of a court, or a copy of the decision of the commissioner, and
by proof of service by first class mail of a copy of such application
upon the school district required to pay such tuition. Unless the school
district required to pay such tuition shall have notified the
commissioner of such payment within thirty days from the receipt of such
application, the commissioner shall withhold an amount equal to the
tuition for such pupil from the public money payable to the school
district responsible for such tuition and shall pay such amount to the
school district which has provided instruction to such pupil. The
commissioner is authorized to promulgate regulations to implement the
provisions of this paragraph.
5. a. Children who reside in a school for the mentally retarded
operated by the department of mental hygiene and for whom the department
has assumed responsibility for support and maintenance prior to July
one, nineteen hundred seventy-seven and who are placed in a family home
at board, a duly incorporated orphan asylum or other institution for the
care, custody and treatment of children shall be admitted to the schools
of the school district in which such family home or institution is
located. The education department is authorized to reimburse each school
district furnishing educational services to such children for the direct
cost of such services in accordance with regulations promulgated by the
commissioner and approved by the director of the budget. The educational
costs for these children shall not be otherwise aidable or reimbursable.
b. Children who reside in a school for the mentally retarded operated
by the department of mental hygiene and for whose support and
maintenance the department assumes responsibility on or after July one,
nineteen hundred seventy-seven and who are thereafter placed in a family
home at board, a duly incorporated orphan asylum or other institution
for the care, custody and treatment of children shall be admitted to the
schools of the school district in which such family home or institution
is located. The education department is authorized to reimburse each
school district furnishing educational services to such children for the
direct cost of such services in accordance with regulations promulgated
by the commissioner and approved by the director of the budget. The
educational costs for these children shall not be otherwise aidable or
reimbursable. The school district in which the child resided at the time
the department of mental hygiene assumed responsibility for the support
and maintenance of such child shall reimburse the education department
for its expenditure on behalf of such child in an amount equal to the
school district basic contribution, as such term is defined in
subdivision eight of section four thousand four hundred one of this
chapter. The comptroller may deduct from any state funds which become
due to a school district an amount equal to the reimbursement required
to be made by such school district in accordance with this paragraph,
and the amount so deducted shall not be included in the operating
expense of such district for the purpose of computing the approved
operating expense pursuant to paragraph t of subdivision one of section
thirty-six hundred two of this chapter. The department of mental hygiene
shall notify the education department of the name of the child, the
location of the family home or institution where the child is to be
placed and the name of the school district in which such child resided
at the time the department of mental hygiene assumed responsibility for
his or her support and maintenance.

c. (1) The education department is authorized to reimburse each school
district furnishing educational services to children residing in schools
for the mentally retarded operated by the office of mental retardation
and developmental disabilities for the direct cost of such services in
accordance with regulations promulgated by the commissioner and approved
by the director of the budget.
(2) The school district in which each such child resided at the time
the office of mental retardation and developmental disabilities assumed
responsibility for the support and maintenance of such child shall
reimburse the education department for its expenditures on behalf of
such child, in an amount equal to the school district basic contribution
as such term is defined in subdivision eight of section forty-four
hundred one of this chapter, for any such child admitted to a state
school for the retarded on or after July first, nineteen hundred
seventy-eight. The comptroller may deduct from any state funds which
become due to a school district an amount equal to the reimbursement
required to be made by such school district in accordance with this
paragraph and the amount so deducted shall not be included in the
approved operating expense of such district for the purpose of computing
the approved operating expenses pursuant to paragraph t of subdivision
one of section thirty-six hundred two of this chapter.
d. (1) Children who reside in an intermediate care facility for the
mentally retarded, other than a state operated school for the mentally
retarded, as defined in regulations of the office of mental retardation
and developmental disabilities, shall be admitted to the public schools,
except as otherwise provided in subparagraph fourteen of this paragraph.
The trustees or board of education of the school district in which such
facility is located shall receive such children in the school or schools
of the district for instruction and for the provision of necessary
related services for a compensation to be fixed by the trustees or board
of education, unless such trustees or board of education shall establish
to the satisfaction of the commissioner of education that there are
valid and sufficient reasons for refusal to receive such children.
Evaluation of the educational needs of such children and placement in
appropriate educational programs shall be made in accordance with
article eighty-nine of this chapter.
(2) A child who resides in an individualized residential alternative
as defined in regulations of the office of mental retardation and
developmental disabilities which is located in a school district other
than the school district in which such child's parent or person in
parental relation resided at the time such child was placed in an
institution under the auspices of such office shall be deemed to reside
in an intermediate care facility for purposes of this subdivision to the
extent such child is enrolled in a home and community based waiver
program approved by the Health Care Financing Administration.
(3) Such intermediate care facility is authorized to contract with the
trustees or board of education of such school district for the provision
of services, including transportation.
(4) The education department shall reimburse the school district in
which such intermediate care facility is located for the full cost of
all services, which shall, notwithstanding any inconsistent provision of
law, include transportation services provided pursuant to a contract
authorized by this paragraph. Provided, however, that notwithstanding
any other law, rule or regulation to the contrary, that no reimbursement
shall be payable pursuant to this subparagraph for due process costs
incurred on or after July first, two thousand nine. Such reimbursement
shall be for the period from September first through June thirtieth, and
state reimbursement for July and August programs shall be in accordance

with subdivision one of section forty-four hundred eight of this
chapter. The provisions of subdivision two of such section forty-four
hundred eight shall apply to all July and August programs provided
pursuant to this section.
(5) The school district in which the child resided at the time of
placement in such intermediate care facility shall reimburse the
education department for its expenditure on behalf of such child in an
amount equal to the school district's basic contribution, as such term
is defined in subdivision eight of section forty-four hundred one of
this article for any child first admitted to such intermediate care
facility, on or after July first, nineteen hundred seventy-nine.
(6) Upon certification by the commissioner of education, the
comptroller may deduct from any state funds which become due to the
school district an amount equal to the reimbursement required to be made
by such school district in accordance with this paragraph, and the
amount so deducted shall not be included in the operating expense of
such district for the purpose of computing the approved operating
expenses pursuant to paragraph t of subdivision one of section
thirty-six hundred two of this article.
(7) Within forty-five days of the placement of a child in a school
district, the intermediate care facility shall notify the school
district in which the child resided at time of entrance to the
intermediate care facility and the school district in which the facility
is located. Such notice shall include the name of the child, the
location of the intermediate care facility, and the name of the school
district in which such child resided at the time of placement.
(8) A board of education of a school district which receives
notification that a child has been placed in an intermediate care
facility for the mentally retarded may deny financial responsibility for
any child by written notice within twenty days of such notification to
the school district furnishing instruction and the intermediate care
facility.
(9) An intermediate care facility responsible for placing the child,
the school district furnishing instruction or the parent or guardian of
the child involved may appeal a denial of responsibility to the
commissioner of education. If the commissioner finds that the child was
not a resident of the school district that was notified that the child
was a resident therein, the commissioner shall request the intermediate
care facility to ascertain the correct school district and notify such
school district pursuant to subparagraph six of this paragraph. The
commissioner shall review and determine responsibility for the child in
question. If the commissioner finds that a child has no residence in
this state, he shall determine that there is no local contribution for
such child.
(10) If the intermediate care facility fails to make a reasonable
effort to identify the residence of such a child, such agency shall be
responsible for the local contribution and, upon notification by the
commissioner of education, shall pay such amount to the commissioner of
education.
(11) If the intermediate care facility rejects the finding of the
committee on special education of the school district of attendance, or
a finding affirmed or revised on appeal, such facility shall retain
responsibility for payment of the cost of instruction of such child.
(12) Any final determination or order of the commissioner concerning
residence or placement of any child under this paragraph may only be
reviewed in a proceeding brought in the supreme court pursuant to
article seventy-eight of the civil practice law and rules. In any such
proceeding, the court may grant any relief authorized by the provisions

of section seventy-eight hundred six of such law and rules or may, in
its discretion, remand the proceedings to the commissioner. An
intermediate care facility attempting to place a child pursuant to this
paragraph shall be considered a proper party to any such proceeding.
(13) The school district providing educational services to children
placed pursuant to this paragraph shall provide a report on the status
of each such child with a handicapping condition annually to the
committee on special education of the school district in which the child
resided at the time of admission to the intermediate care facility for
the mentally retarded. Such report shall also be sent to the parent or
guardian of the child and the office of mental retardation and
developmental disabilities.
(14) The board of education responsible for providing appropriate
educational services for a child receiving care in an intermediate care
facility developed pursuant to the residential school bed development
program, as authorized by chapter fifty-four of the laws of nineteen
hundred eighty-five or any subsequent enactment extending such program,
shall be the board of education of the school district in which such
child would be deemed to reside but for such child's placement in such
an intermediate care facility. The department shall reimburse such
school district of residence for all nonfederally reimbursable costs of
such educational services in accordance with subparagraph four of this
paragraph as if such district were the school district in which the
intermediate care facility is located, and such school district of
residence shall be responsible for reimbursement of the department for
its expenditure on behalf of the child in an amount equal to the school
district basic contribution, as defined in subdivision eight of section
four thousand four hundred one of this chapter. The comptroller may
deduct the amount of such reimbursement from any state funds due the
district in the manner prescribed in subparagraph six of this paragraph.
e. Notwithstanding the provisions of paragraph a of subdivision five
of section thirty-six hundred four of this chapter, the commissioner
shall be authorized to grant a waiver excusing the late filing of claims
submitted for costs incurred pursuant to this subdivision, upon findings
that the school district has submitted a timely request for a waiver and
has submitted proof satisfactory to the commissioner that the delay in
filing was caused by a party other than the school district. A request
for such a waiver, together with all supporting documentation, shall be
submitted to the commissioner within sixty days after the date on which
this paragraph was enacted, or within fourteen months after the end of
the school year in which services were provided pursuant to this
subdivision, whichever is later.
6. Except as provided in subdivision five of this section or by
article eighty-one of this chapter, children cared for in a hospital or
other institution for the care, custody and treatment of children, other
than a school and excepting children of the officers and employees of
such hospital or institution, shall not, by reason of their presence in
such hospital or institution, be deemed to be residents of the school
district in which such hospital or institution is located. The trustees
or board of education of the school district of their residence shall
provide educational services for such children. Such services may be
provided by a tutor employed by the district, by contract with a school
connected with such hospital or institution, or by contract with the
local public school district in which such hospital or institution is
located. Such contracts shall be limited to the cost of educational
services and shall not include maintenance or medical services.
Provided, however, if such children are supported and maintained at the
expense of a social services district, the cost of said instruction

shall be paid by the social services district which is liable for
payment of the cost of their support and maintenance. In the case of
hospitals or institutions located in the state of New York, the trustees
or board of education of a school district in which such a hospital or
institution is located shall receive such children in the school or
schools of the district for instruction for a compensation to be fixed
by the trustee or board of education, unless such trustees or board of
education shall establish to the satisfaction of the commissioner of
education that there are valid and sufficient reasons for refusal to
receive such children.
6-a. Notwithstanding subdivision six of this section the director of
the division for youth shall be responsible for the secular education of
youth under the jurisdiction of the division and may contract for such
education with the trustees or board of education of the school district
wherein a facility for the residential care of division for youth is
located. A youth attending a local public school while in residence at
such facility shall be deemed a resident of the school district where
his parent or guardian resides at the commencement of each school year
for the purpose of determining which school district shall be
responsible for the youth's tuition pursuant to section five hundred
four of the executive law.
7. Youth incarcerated in county correctional facilities or youth
shelters. a. A person under twenty-one years of age who has not received
a high school diploma and who is incarcerated in a correctional facility
maintained by a county or by the city of New York or in a youth shelter
is eligible for educational services pursuant to this subdivision and in
accordance with the regulations of the commissioner. Such services shall
be provided by the school district in which the facility or youth
shelter is located, within the limits of the funds allocated by the
commissioner for such purposes pursuant to section thirty-six hundred
two of this chapter and pursuant to a plan approved by the commissioner.
School districts shall submit such plan by July fifteenth of each school
year. Boards of education are authorized to contract for the provision
of such educational services by a board of cooperative educational
services or by another public school district.
b. Except as otherwise provided in this paragraph, the school district
in which the child resided at the time of the child's commitment to the
custody of the sheriff or local commissioner of corrections or youth
shelter shall reimburse the education department for its expenditure for
the full time equivalent attendance of such child pursuant to
subdivision thirteen of section thirty-six hundred two of this chapter
on behalf of such child, in an amount equal to the product of such full
time equivalent attendance and the school district basic contribution,
as such term is defined in subdivision eight of section forty-four
hundred one of this chapter, provided, however, that such basic
contribution shall be multiplied by the full time equivalent attendance
multiplied by one hundred twenty per centum for such children attending
programs which operate between July first and June thirtieth. If at the
applicable time specified in this paragraph a school district other than
the school district in which the child resides is responsible for the
cost of instruction of the child or for reimbursement of the state for
its expenditure on behalf of the child pursuant to any provision of this
chapter, then such other school district shall be responsible for
reimbursement of the education department in accordance with this
paragraph. Upon certification by the commissioner, the comptroller shall
deduct from any state funds which become due to a school district an
amount equal to the reimbursement required to be made by such school
district in accordance with this paragraph, and the amount so deducted

shall not be included in the operating expense of such district for the
purpose of computing the approved operating expense pursuant to
paragraph t of subdivision one of section thirty-six hundred two of this
chapter.
c. After admission of a child eligible for educational services
pursuant to this subdivision, but within a time prescribed by the
commissioner in regulations, the correctional facility maintained by the
county or the city of New York shall furnish such child with information
concerning the availability of such educational services and shall
submit a request for educational services to the school district in
which the facility is located. Such request shall conform to
requirements prescribed by the commissioner by regulation in
consultation with the state commission of correction and shall include,
but shall not be limited to, notice of: the name of the child, the name
and location of the facility in which such child is incarcerated, the
last grade completed by the child as reported by the child, the
anticipated duration of the incarceration and the last known residence
of such child at the time of the child's commitment to custody. The
school district in which the facility is located shall notify other
appropriate agencies, including, but not limited to, the education
department and the school district identified as being responsible for
the educational costs of such child pursuant to paragraph b of this
subdivision, that such a request for educational services has been
received. The commissioner shall promulgate regulations specifying the
time within which such notice shall be provided and the contents of such
notice, and establishing a procedure by which a school district may
request the commissioner to review its identification as the school
district responsible for the educational costs of such child.
d. Upon release or discharge of a child eligible for educational
services pursuant to this subdivision, the correctional facility shall
apprise such child that further educational services may be available
pursuant to this section through the school district in which the child
resides or in which the child is otherwise entitled to attend school,
and shall, at the request of the student, notify such district of the
child's desire to enroll in such district.
e. The state commission of correction shall promulgate rules and
regulations in consultation with the commissioner which shall require
each correctional facility operated by a county or the city of New York
to cooperate with the school district or board of cooperative
educational services providing educational services and to comply with
the requirements of this subdivision.
f. As used in this subdivision, "youth shelter" shall mean an
alternative residential facility for the incarceration of youths between
the ages of sixteen and twenty-one who are remanded by the criminal
courts.
8. Homeless children. A homeless child, as defined in subdivision one
of section thirty-two hundred nine of this article, over the age of five
and under twenty-one years of age, who has not received a high school
diploma, shall be entitled to attend a public school without the payment
of tuition, in accordance with the provisions of section thirty-two
hundred nine of this article.

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Last modified: April 23, 2010"