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Decision No. 13,952

Appeal of THE BOARD OF EDUCATION OF THE SCOTIA-GLENVILLE CENTRAL SCHOOL DISTRICT from action of the Board of Education of the Burnt Hills-Ballston Lake Central School District, relating to reimbursement for the provision of health and welfare services.

Decision No. 13,952

(June 10, 1998)

McCary & Huff, LLP, attorneys for petitioner, Margaret D. Huff, Esq., of counsel

Robert E. VanVranken, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the refusal of the Board of Education of the Burnt Hills-Ballston Lake Central School District ("respondent") to pay certain charges in connection with the provision of services to nonpublic school students pursuant to Education Law "912. The appeal must be sustained in part.

The Schenectady Christian School, a nonpublic institution, is located within the boundaries of petitioner's district. During the 1994-1995 school year, 62 students residing in respondent's district attended the Schenectady Christian School; in 1995-1996, there were 67 students from respondent's district enrolled there; and in 1996-1997, there were 58 students from respondent's district enrolled there.

During the 1993-1994 school year, petitioner calculated the cost of health and welfare services provided pursuant to Education Law "912 at $215.88 per student. For the years following, which are at issue in this appeal, petitioner calculated the cost of services at $325.48 per student for 1994-1995, $270.79 per student for 1995-1996, and $374.91 per student for 1996-1997. (Petitioner alleges that the 1995-1996 figure reflected a conciliatory adjustment by excluding certain services objected to by respondent).

During the 1994-1997 period, petitioner and respondent engaged in correspondence and discussions as to certain objections raised by respondent. On May 21, 1997, respondent paid petitioner for all of its students attending Schenectady Christian School for those three school years, but only at the 1993-1994 rate ($215.88 per pupil). Petitioner brings this appeal to recover the remaining money which it claims is due from respondent.

Respondent raises three objections to the manner in which petitioner has calculated these charges, and demands a recalculation. Respondent objects to petitioner's inclusion of expenses for remedial mathematics and remedial reading in its calculation of charges for 1994-1995 and 1996-1997 (they were excluded from the calculation for 1995-1996). Respondent further objects that petitioner is profiting from "912 services because it is including charges for social workers, psychologists, speech professionals and others who provide services to its own students in public schools, while providing no IEP services to respondent's students attending Schenectady Christian School. Respondent further objects to petitioner's allocation of 50 percent of the salary of its Director of Pupil Personnel Services in calculating charges pursuant to Education Law "912.

With respect to the claim that petitioner is profiting by the way it calculates certain health and welfare services, petitioner has presented evidence that it has calculated the cost of health and welfare services in a manner consistent with prior Commissioners' decisions (SeeAppeal of the Board of Education of the Brighton Central School District, 36 Ed Dept Rep 381; Matter of the Board of Education of the Elmsford Union Free School District, 22 id. 151; Matter of the Board of Education of the City School District of the City of New Rochelle, 23 id. 355). In Matter of the Board of Education of the City School District of the City of Long Beach (5 Ed Dept Rep 180), the following rule was established:

. . . 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.

My review of the record indicates that petitioner has calculated the per pupil charge for "912 services in an acceptable manner, and respondent has no complaint on this point. There is no evidence of "double billing" for these services pursuant to Education Law "3602-c, either literally or "in effect," as respondent claims.

With respect to respondent's objection to petitioner's allocation of 50 percent of the salary of its Director of Pupil Personnel Services, petitioner has provided an affidavit from its director which discusses in detail the manner in which her time is allocated, and justifies the conclusion that 50 percent of her time is devoted to health and welfare services and related matters. While respondent objects to this, it also says that it would not object to an allocation of 25 percent of the director's salary. In view of the foregoing, and respondent's failure to contradict the director's affidavit, I cannot say that petitioner's allocation of 50 percent of its director's salary in its calculation of health and welfare services under "912 is unreasonable.

The question of respondent's objections to petitioner's inclusion of remedial mathematics and remedial reading instruction in calculating "912 charges, however, is more complex. It appears that for the 1994-1995 school year, petitioner included $280,220 in district expenses for remediation, and $261,325 for the same cost in 1996-1997. (As noted above, no such expenses were included in petitioner's 1995-1996 calculation with respect to respondent.) Petitioner claims that such services fall within the scope of Education Law "912, and cites Greeve v. Board of Education of Union Free School District No. 27 (72 Misc.2d 791, aff'd 43 AD2d 851; aff'd without opinion 36 NY2d 673).

In Greeve, the service claimed to be within the scope of "912 was the provision of an itinerant teacher to a child suffering with "a severe auditory handicap." In discussing the matter, Special Term relied on Matter of Cornelia v. Board of Education (36 AD2d 576, aff'd 29 NY2d 586), which involved the provision of speech therapy. Special Term noted the similarities between the two cases, and observed that in both instances the services of itinerant teachers were made available only to children with a handicap, and that the services were intended to mitigate the effects of the child's handicap (72 Misc.2d at 794-5).

My reading of Education Law "912, especially in context with the other provisions of Article 19 of the Education Law, leads me to conclude that ordinary remedial services in academic subjects, which are at issue in this appeal, are not the types of services intended to be included within "912. As a result, I find petitioner's inclusion of the cost of those services in its calculation of charges to respondent improper. I am not persuaded that 8 NYCRR 136.3(a)(7) has any relevance, as claimed by petitioner.

I have considered the parties' remaining contentions and find them without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that petitioner recalculate its "912 charges to respondent for the 1994-1995 and 1996-1997 school years, excluding costs for remedial mathematics and remedial reading services.

IT IS FURTHER ORDERED that respondent pay to petitioner the recalculated amounts due for 1994-1995, 1995-1996, and 1996-1997, with full credit given for all payments made previously.

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