Decision No. 12, 983

(August 11, 1993)

SHELDON, Acting Commissioner.--Petitioner appeals from respondent's failure to pay for petitioner's cost of providing health and welfare services for students who reside in respondent's school district, but who attend private schools located within petitioner's district. Petitioner requests that I direct respondent to execute a contract for the provision of health and welfare services for the students, and that respondent pay for petitioner's costs in providing such services, together with interest on that amount dating from June 25, 1992. The appeal must be sustained in part.

The essential facts in this matter are not in dispute. There are 369 students who are residents of the Yonkers City School District and attend private schools located within the boundaries of the Greenburgh Central School District. Pursuant to Education Law '912, petitioner is obligated to provide health and welfare services and facilities that are available for children attending the public schools of the district to children who attend private schools located in the same district. Petitioner calculated the total costs of providing health and welfare services to public and nonpublic school students for the 1991-1992 school year and divided that total by the total number of students attending public and nonpublic schools. A per pupil cost of providing such services was calculated to be $458.13. On or about June 1, 1992, petitioner presented respondent with a contract to authorize the provision of health services for the students, together with a bill for the total cost of providing such services to the students. Respondent has refused either to execute the contract or pay the bill which it received. On or about June 25, 1992, respondent informed petitioner that it would only pay the sum of $252.19 per student since that was the sum which respondent calculated to be its per pupil cost of providing health and welfare services to students within the Yonkers City School District. Shortly thereafter, petitioner commenced this appeal.

Petitioner contends that it is obligated by Education Law '912 to provide health and welfare services to nonpublic school students from respondent's district who attend nonpublic schools located within the boundaries of the Greenburgh Central School District. Petitioner alleges that it has calculated the per pupil cost for providing such services in a manner consistent with decisions of the Commissioner relating to this issue, and it is, therefore, entitled to the relief sought in the petition. Respondent contends that under Education Law '912, petitioner is obligated to negotiate with respondent to establish consideration which is acceptable to both parties as payment for the costs of providing health and welfare services, and that petitioner has failed to do so. Respondent further contends it is currently subject to substantial drains on its financial resources as a result of its attempts to achieve desegregation in accordance with a federal court order and granting the relief requested by petitioner would exacerbate respondent's precarious financial situation. Respondent asks that it, therefore, be relieved from the financial drain which would be occasioned by granting the relief sought by petitioner and requests that the petition be dismissed.

Pursuant to Education Law '912, petitioner is obligated to provide the same health and welfare services and facilities for nonpublic school students from respondent's district as those which it provides to its resident students who attend public school. In accordance with the Commissioner's decision in the Matter of the Appeal of the Bd. of Ed. of the Elmsford UFSD, 22 Ed Dept Rep 151, petitioner is authorized to calculate a per pupil cost by dividing its total cost for health and welfare services by the total number of students, public and nonpublic, to whom it provides such services. Respondent does not allege or provide proof that petitioner's method of calculating the per pupil cost is at variance with the procedure approved in that decision. Respondent's argument that it should be relieved of this financial obligation because of the financial strain it is encountering due to its efforts to comply with the desegregation order is unavailing in the light of the statutory obligation imposed by '912. I, therefore, conclude that respondent is obligated to pay petitioner for the per pupil cost calculated and is directed to do so. I must decline petitioner's request that respondent be directed to provide interest on this obligation since such relief is not available in proceedings pursuant to Education Law '310 (Application of a Child With a Handicapping Condition, 31 id. 212).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent forthwith pay to petitioner $458.13 for the 1991-92 school year for each student who was a resident of the Yonkers City School District for that year and attended nonpublic school in petitioner's district.

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