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Decision No. 13,755

Appeal of the BOARD OF EDUCATION OF THE BRIGHTON CENTRAL SCHOOL DISTRICT from action of the Boards of Education of the Lyons Central School District, the Newark Central School District, the Palmyra-Macedon Central School District, and the Williamson Central School District, relating to reimbursement for the provision of health and welfare services.

Decision No. 13,755

(April 4, 1997)

Zicari, McConville, Cooman, Morin & Welch, PC, attorneys for petitioner, Craig J. Zicari and Peter J. Weishaar, Esqs., of counsel

Nesbitt & Williams, LLP, attorneys for respondents, John B. Nesbitt, Esq., of counsel

 

MILLS, Commissioner--Petitioner, the Board of Education of the Brighton Central School District ("Brighton"), appeals respondents' refusal to reimburse it for providing health and welfare services to residents of respondents' districts who attended nonpublic schools in Brighton during the 1993-1994, 1994-1995, and 1995-1996 school years. The appeal must be sustained.

During the three school years in question, students residing in respondents' districts (herein referred to as "Lyons," "Newark," "Palmyra-Macedon," and "Williamson") attended nonpublic schools located within the Brighton district, which is located in Monroe County. Pursuant to Education Law '912, Brighton provided certain health and welfare services to those children. Brighton has issued invoices to respondents near or following the end of the three school years in question, detailing the number of students receiving services and showing the annual rate charged for those services. In 1993-1994, the billing per pupil was $176.92; during the 1994-1995 school year, $190.58; and during the 1995-1996 school year, $185.32. In each of those years, Brighton calculated the expense per student by taking the total cost of health and welfare expenses (not including instruction) provided by it and dividing by the total number of pupils attending school within the district, public and nonpublic.

Respondents have disputed Brighton's invoices, although they do not dispute the number of students or the time periods when they are claimed to have received services. Although respondents deny that they have refused to pay for such services, they say that they have been and remain ready to compensate Brighton for the fair value and cost of actual services provided. Because the parties have been unable to agree on an annual rate, no contracts have been entered into as contemplated by '912.

Petitioner contends that it has complied in all respects with '912, has provided the required health and welfare services to children residing in respondents' districts, and is entitled to payment as set out in its petition. Respondents claim that this appeal is untimely, since their refusals to pay all occurred more than 30 days before the commencement of this appeal. Respondents further claim that the annual per student charges computed by Brighton are excessive, and are substantially higher than the costs sustained for the same services in areas outside Monroe County, specifically Wayne and Ontario counties. Respondents allege that no contracts have been entered into as required by '912, and that Brighton has refused to bargain in good faith to establish such contracts. Respondents further contend that there are more just and equitable methods of computing an annual rate for health and welfare services, by computing such costs with respect to individual school buildings rather than district-wide, and suggest that Brighton's method of computation results in a profit.

It is true that this appeal was commenced more than 30 days after the respondents' refusals, in apparent violation of 8 NYCRR '275.16. However, in Matter of Union Free School District No. 3, Town of Eastchester (77 State Dept Rep 130), the Commissioner stated: "The health services offered are, of course, continuing and consequently the 30-day rule does not bar this proceeding." That same rule was applied in Matter of Central High School District No. 2, Towns of Hempstead and North Hempstead (2 Ed Dept Rep 255), where the appeal was not commenced for more than 16 months after the end of the school year for which reimbursement was sought. In Matter of Board of Education of the City School District of the City of Long Beach (5 Ed Dept Rep 180), recovery was allowed for services provided during the three school years preceding the commencement of the appeal, in circumstances similar to this appeal. I therefore conclude that the appeal is timely.

I also conclude that Brighton is entitled to the amounts set forth in its petition. The only real issue in this appeal is whether or not Brighton's method of calculating the annual per pupil charge is correct.

In Matter of Board of Education of the City School District of the City of Long Beach (supra), the following rule was established:

Under these circumstances, it is my opinion that a proper charge to the sending district for each pupil would be the total cost of all health services, excluding of course health instructional services, divided by the total number of pupils so covered. This amount will represent the average cost per pupil attending school in the appellant's district. No school district should be allowed to profit in any manner from health services rendered to children from neighboring districts by charging therefor at a rate in excess of the cost of providing the same for its own pupils.

This formula has been approved in other decisions (Appeal of the City School Dist. of the City of New Rochelle, 35 Ed Dept Rep 198; Appeal of the Bd. of Ed., Greenburgh CSD No. 7, 33 id. 81; Matter of the Bd. of Ed., City School Dist. of the City of New Rochelle, 23 id. 355; Matter of the Bd. of Ed., Elmsford UFSD, 22 id. 151).

It is clear from the record in this matter that Brighton has calculated the annual per pupil cost in compliance with these decisions. Although respondents are unhappy that the costs are higher than the costs they sustain within their own districts and in neighboring non-urban districts, they do not dispute the accuracy of the calculations. Although they would prefer to use a different method of calculation which they apparently believe would result in lower costs to them, that is not the issue. It is clear that Brighton has complied with the method of calculation approved in prior decisions, and is not required to adopt a more sophisticated system for the benefit of respondents.

Although contracts have not been entered into, the Commissioner has repeatedly held that even if there has not been compliance with the technical requirements of '912, boards of education are not absolved of their statutory duties to provide and pay for services (Matter of Bd. of Ed., City School Dist. of the City of New Rochelle, supra; Matter of Bd. of Ed., City School Dist. of the City of Plattsburgh, 10 Ed Dept Rep 228; Matter of UFSD No. 10 of Southold, 1 id. 197). I thus find that Brighton is entitled to recover the amounts claimed, without interest, since interest is not available in proceedings pursuant to Education Law '310 (Appeal of the Bd. of Ed., Greenburgh CSD No. 7, supra).

I strongly urge all the parties to be more diligent in their compliance with '912 and the procedures that implement it, by entering into good faith negotiations for binding contractual commitments, so that future conflicts over this type of reimbursement may be avoided.

 

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent Lyons pay to Brighton the sum of $375.90 in compensation for health and welfare services rendered during the 1994-1995 and 1995-1996 school years; that respondent Newark pay to Brighton the sum of $1,660.58 in compensation for health and welfare services rendered during the 1993-1994 and 1994-1995 school years; that respondent Palmyra-Macedon pay to Brighton the sum of $4,292.64 in compensation for health and welfare services rendered during the 1994-1995 and 1995-1996 school years; and that respondent Williamson pay to Brighton the sum of $4,645.88 in compensation for health and welfare services rendered during the 1993-1994, 1994-1995, and 1995-1996 school years. Respondents may, of course, deduct any amounts which they may have paid for these services prior to the date of this decision.

END OF FILE.