Appeal of the BOARD OF EDUCATION OF THE CANASTOTA CENTRAL SCHOOL DISTRICT from action of the Board of Education of the City School District of the City of Syracuse relating to foster care tuition.

Decision No. 15,847

(November 13, 2008)

Hogan, Sarzynski, Lynch, Surowka & DeWind, LLP, attorneys for petitioner, Wendy K. DeWind, Esq., of counsel

City of Syracuse Law Department, Office of Corporation Counsel, attorneys for respondent, Catherine E. Carnrike, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the refusal of the Board of Education of the City School District of the City of Syracuse (“respondent”) to reimburse petitioner for an alleged overpayment of tuition paid on behalf of a foster care child, J.T., placed in respondent’s district during the 2005-2006 school year.  The appeal must be sustained in part. 

J.T., a regular education student, was a resident of petitioner’s school district at the time of her foster care placement in the Euclid Group Home on December 2, 2005.  The Euclid Group Home is a boarding home operated by the Elmcrest Children’s Center (“Elmcrest”), a child care institution licensed by the New York State Office of Children and Family Services, located in respondent’s district. Elmcrest has no educational program of its own.  Respondent operates the educational program at Elmcrest, providing teachers, staff, supplies and equipment.  The tuition for nonresident students is determined by dividing the budget for the Elmcrest educational program by the number of students and prorating to obtain a daily rate.

Respondent billed petitioner $15,560.76 for nonresident tuition for J.T.’s attendance at Elmcrest from December 2005 through June 2006.  Petitioner paid respondent $11,043.12 of this amount.  This appeal ensued.

Petitioner alleges that, upon completing the nonresident tuition worksheet for respondent’s district, it realized that respondent overcharged petitioner for J.T.’s tuition at Elmcrest.  Petitioner contends that the amount billed by respondent for J.T.’s attendance at Elmcrest for the 2005-2006 school year exceeded the maximum nonresident tuition allowed for in Part 174 of the Commissioner’s regulations.  Petitioner further alleges that respondent failed to properly account for State aid when calculating its nonresident tuition rate for the 2005-2006 school year.  Therefore, petitioner requests that I direct respondent to reimburse petitioner for an alleged overpayment of regular education tuition payments for J.T. for the 2005-2006 school year in the amount of $8,634.12 (the amount already remitted by petitioner [$11,043.12] less the alleged proper computation [$2,409]).  Petitioner also requests that I direct respondent to utilize the formula set forth in the Commissioner’s regulations when calculating nonresident tuition in the future.

Respondent alleges that it used the appropriate formula for calculating J.T.’s tuition at Elmcrest and that the amount billed to petitioner was proper.  Respondent also contends that the appeal must be dismissed as untimely, for failure to name a necessary party and on the ground that I lack jurisdiction to decide this appeal.  Respondent also avers that the appeal must be dismissed based on the doctrine of laches and because petitioner did not comply with the notice of claim requirements set forth in Education Law §3813. 

As an initial matter, I must address respondent’s procedural objections.  First, I reject respondent’s argument that the Commissioner of Education lacks authority to address petitioner’s request for reimbursement of foster care tuition.  Disputes over the calculation of foster care tuition, and the respective liability therefor, have previously been adjudicated under Education Law §310 (seeAppeals of the Bd. of Educ. of the Stamford Central School Dist., 41 Ed Dept Rep 220, Decision No. 14,668).  Respondent mistakenly relies on my decision in Appeal of Sitaras, et al., (44 Ed Dept Rep 320, Decision No. 15,187) for its position that I do not have jurisdiction to decide this appeal.  However, that case involved a request for an award of tuition in the context of a residency dispute.  The present case is distinguishable and I will not dismiss on jurisdictional grounds.

Second, respondent’s reliance on the notice of claim requirements set forth in Education Law §3813 is misplaced.  Education Law §3813 refers to actions and special proceedings.  As stated in my previous decisions, an appeal to the Commissioner of Education is not an action or special proceeding within the meaning of Education Law §3813 (Appeal of Hollister, 39 Ed Dept Rep 109, Decision No. 14,188; Appeal of Sole Trustee of the Hickory-South Mountain Common School Dist. No. 1, 38 id. 577, Decision No. 14,097).  Therefore, Education Law §3813 is not applicable here.

Respondent next argues that petitioner failed to join a necessary party, but does not identify the necessary party.  Therefore, I will not dismiss the appeal for failure to join a necessary party.

As to timeliness, claims for foster care tuition payments pursuant to Education Law §3202(4)(a) become due at the conclusion of the school year for which such claims are made, and an appeal to the Commissioner shall be commenced within 30 days of the end of the school year (seeAppeal of the Bd. of Educ. of the Stamford Central School Dist., 41 Ed Dept Rep 220, Decision No. 14,668; Appeal of the Bd. of Educ. of the East Moriches Union Free School Dist., 41 id. 45, Decision No. 14,610).  Since June 30, 2006 is considered the end of the 2005-2006 school year for reporting purposes and petitioner filed its appeal on July 26, 2006, I find the appeal timely.

Respondent’s defense of laches is, likewise, without merit.  Laches may bar “the enforcement of a right where there has been an unreasonable and inexcusable delay that results in prejudice to a party” (Skrodelis v. Norbergs, 272 AD2d 316; Appeal of Y.M., 43 Ed Dept Rep 193, Decision No. 14,968).  Upon the record before me, I find that respondent has failed to establish sufficient prejudice to justify application of the laches doctrine (seeAppeal of Gehl, et al., 42 Ed Dept Rep 287, Decision No. 14,857).

Petitioner contends that the rate of tuition for J.T. should have been computed pursuant to the nonresident tuition worksheet based on the formula established in Part 174 of the Commissioner’s regulations.  Respondent considers its Elmcrest program a separate entity, not a part of the school district.  It considers the program self-supporting and accounts for all expenses and revenues in the Special Aid Fund.  Respondent also assumes that the district of residence would be receiving the appropriate State aid. 

Respondent provides no authority for its actions.  Part 174 of the Commissioner’s regulations provides for the computation of tuition charges for nonresident students.  Specifically, §174.2 provides, in pertinent part:

The charge for the instruction of each nonresident pupil shall not exceed the actual net cost of educating such pupil.  If the accounting records of the school district providing such instruction are not maintained in a manner which would indicate the net cost of educating such pupil, a board of education ... shall compute the tuition to be charged for the instruction of each nonresident pupil admitted to the schools of such district ... in accordance with the following formulae ....

The Commissioner’s regulations provide that a receiving district (respondent) may utilize its own formula, provided that: (1) its accounting records are maintained in such a manner as would indicate the net cost of educating each nonresident pupil, and (2) the amount charged is not in excess of the actual net cost of educating each such pupil (see Education Law §2045; 8 NYCRR §174.2; Appeal of the Bd. of Educ. of the East Quogue Union Free School Dist., 43 Ed Dept Rep 385, Decision No. 15,026). 

Based upon the record before me, I find that respondent’s accounting records are not maintained in such a manner as would indicate the net cost of educating J.T.  Rather, it calculates an average cost for Elmcrest students.

Therefore, §174.2(a)(5) of the Commissioner’s regulations requires that “[t]he maximum nonresident pupil tuition which may be charged shall be determined by dividing the net cost of instruction of pupils in each category by the estimated average daily attendance of pupils in each category.”  Those four categories are half-day kindergarten, full-day kindergarten through grade six, grades seven through twelve, and special education.  There is no provision for calculating separate tuition amounts for separate programs.

Furthermore, it is respondent’s responsibility to claim State aid for all general education students in attendance and to take such aid into consideration in the calculation of nonresident tuition (see Education Law §3602 and 8 NYCRR §174.2).

Accordingly, the matter must be remanded to respondent to compute the tuition in accordance with this decision.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the matter be remanded to respondent for re-computation of the nonresident tuition rate charged to petitioner for the 2005-2006 school year in accordance with the formula prescribed in §174.2 of the Commissioner’s regulations.

IT IS FURTHER ORDERED that, upon said re-computation, the Board of Education of the City School District of the City of Syracuse reimburse the Canastota Central School District for any overpayment of tuition.

IT IS FURTHER ORDERED that respondent in the future comply with §174.2 of the Commissioner’s regulations for the computation of nonresident foster care tuition.

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