Decision No. 17,368
Appeal of a STUDENT WITH A DISABILITY, by his parents, from action of the Board of Education of the Westhampton Beach Union Free School District regarding a non-resident tuition contract.
Decision No. 17,368
(April 4, 2018)
Kevin A. Seaman, Esq., attorney for respondent
ELIA, Commissioner.--Petitioners in this appeal seek a declaratory judgement that their son (“the student”) be afforded “residency” status by the Board of Education of the Westhampton Beach Union Free School District (“respondent”) by virtue of a non-resident tuition contract. The appeal must be dismissed.
Petitioners are residents of the Remsenburg-Speonk Union Free School District (“Remsenburg-Speonk”), which is a kindergarten through sixth grade school district that contracts with neighboring school districts on a tuition basis for the education of its students in grades seven through twelve. According to the record, respondent is one of the neighboring school districts with which Remsenburg-Speonk contracts; Eastport-South Manor apparently is another such district.
Petitioners’ son is a student with a disability who, during the 2014-2015 school year, attended sixth grade in Remsenburg-Speonk. During that year, Remsenburg-Speonk convened its Committee on Special Education (“CSE”) to make a recommendation for the student’s program and placement for the following school year, when the student would attend seventh grade. Petitioners rejected that recommendation and initiated an impartial due process hearing pursuant to Education Law §4404. The parties subsequently settled that dispute, stipulating that Remsenburg-Speonk would seek implementation of the recommended program and placement in respondent’s school district for the 2015-2016 school year. Respondent declined Remsenburg-Speonk’s request to admit the student to its schools. Petitioners commenced an action against respondent in federal court which was dismissed for failure to exhaust administrative remedies pursuant to, inter alia, the Individuals with Disabilities Education Act (“IDEA”), 20 USC §1400, et seq. (C.K. and T.K., on behalf of A.K., and A.K. v. Board of Education of the Westhampton Union Free School District, 185 FSupp3d 317).
In May 2016, petitioners filed a due process complaint notice against respondent, claiming that respondent failed to offer their son a free appropriate public education (“FAPE”) and unlawfully denied their son placement in the district. By letter dated May 12, 2016, respondent’s attorney notified petitioners that respondent considered petitioners’ due process complaint to be improper in that respondent’s CSE had not taken any action with respect to their son’s education and that Remsenburg-Speonk was responsible for making such a recommendation for their son. Respondent indicated that the requirement to exhaust their administrative remedies, set forth by the federal court in its decision, pertained to Remsenburg–Speonk rather than to respondent.
On May 12, 2016, petitioners commenced this appeal seeking, as more fully set forth below, a declaratory judgment stating that, based on the contract between respondent and Remsemburg-Speonk for the education of students in grades seven through twelve, respondent is obligated to “provide free and appropriate education for all of [Remsenburg-Speonk’s] post-elementary students,” despite any student’s disability. Petitioners argue that, in light of the contract, their son should be afforded “residency” status for purposes of determining the “scope of educational services obligated to him by [respondent].” Petitioners demand “a declaratory judgement ... codifying the extension of Westhampton ‘residency’” to all Remsenburg-Speonk students, thereby “barring” respondent from asserting otherwise in ongoing and future proceedings.
On May 19, 2016, respondent moved to dismiss the due process complaint notice filed against it by petitioners, arguing that petitioners were proceeding against “the wrong school district.”
By decision dated June 4, 2016, the IHO in the impartial due process hearing granted respondent’s motion to dismiss that complaint. Petitioners appealed the determination and, by decision dated July 11, 2016, an SRO vacated the IHO’s decision and remanded the matter to the IHO for further proceedings.
Following remand, the IHO issued a decision on January 26, 2017. A review of that decision reveals that respondent had enrolled petitioners’ son in September 2016, convened a CSE meeting and developed an individualized education program (“IEP”) for the student for the 2016-2017 school year. Petitioners challenged that IEP in a due process complaint notice that was consolidated with the remanded due process proceeding. In her decision, the IHO set forth an analysis of respondent’s obligations pursuant to the non-resident tuition contract between it and Remsenburg-Speonk finding that, pursuant to such contract, respondent must enroll petitioners’ son, that its CSE could then determine and recommend an appropriate placement for him, and that the physical location where the IEP would be implemented may not necessarily be located in respondent’s district. The IHO also remanded the matter to respondent’s CSE for a new placement recommendation. The appropriateness of respondent’s CSE’s subsequent recommendation has been the subject of further administrative proceedings.
Petitioners here submit a “Petition for Declaratory Judgment” seeking a declaration that respondent must, by virtue of the non-resident tuition contract between respondent and Remsenburg-Speonk, extend residency status to Remsenburg-Speonk students “inherently adopting all ‘at-law’ obligations owed to its own residents, as well as the residents of Remsenburg-Speonk,” and, thus, “owes [petitioners’ son] an obligation to provide a [FAPE].” Petitioners argue that the student should be deemed a resident for purposes of determining “the scope of educational services obligated to him” by respondent. Petitioners also argue that, due to its contractual obligations, respondent should not be able to decide which students to whom it provides a FAPE. Petitioners seek a declaratory judgement stating that respondent must extend residency to all students residing in Remsenburg-Speonk under the contract. Petitioners also seek an award of legal costs and fees.
Respondent contends that petitioners improperly seek a declaratory judgement, as such relief is not available from the Commissioner of Education. Respondent claims that petitioners have failed to exhaust their administrative remedies, and that the appeal is moot. Respondent further maintains that petitioners may not seek costs or fees in an appeal pursuant to Education Law §310.
I will first address several procedural matters. Petitioners have submitted a reply in this proceeding. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901). Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.
Likewise, respondent submitted a memorandum of law. A memorandum of law should consist of arguments of law (8 NYCRR §276.4). It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668). Therefore, while I have reviewed respondent’s memorandum of law, I have not considered those portions containing new assertions not in its pleadings.
Next, petitioners seek relief not available to them, warranting dismissal of the appeal. The sole relief sought in the “Petition for Declaratory Judgement” before me is a declaration that respondent must extend residency status to Remsenburg-Speonk students educated pursuant to the contract between respondent and Remsenburg-Speonk, including petitioners’ son and, thus, may not assert otherwise to avoid its obligation to provide the student with a FAPE. Petitioners apparently seek such declaratory judgment to preclude respondent from asserting otherwise in a due process proceeding against respondent. 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). Therefore, the appeal must be dismissed.
Even were such relief available to petitioners, the matter is 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). As noted, petitioners seek a declaratory judgement declaring that respondent must extend residency status to their son by virtue of the non-resident tuition contract between respondent and Remsenburg-Speonk and, thus, is obligated to provide the student with a FAPE. Petitioners indicate in their petition that such declaratory judgment is desired for the purpose of precluding respondent from asserting otherwise in a pending impartial due process hearing brought by petitioners alleging violation of the IDEA by respondent in failing to provide their son with a FAPE. I take administrative notice that that the impartial due process hearing concluded and the IHO rendered a determination which was subsequently appealed to the Office of State Review. I also take administrative notice of a January 2017 IHO decision regarding this student indicating that, subsequent to the initiation of this appeal, respondent has enrolled the student and convened a meeting of its CSE which developed an IEP for the student. Inasmuch as the pending impartial due process hearing referenced herein by petitioners has concluded and, moreover, respondent has enrolled the student and convened its CSE, the request for declaratory judgement before me is moot, warranting dismissal of the appeal.
Finally, petitioners seek an award of legal costs and fees. The Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Appeal of S.B., 48 id. 332, Decision No. 15,875).
In light of the above disposition, I need not address the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
END OF FILE
 Administrative and judicial notice is taken of: the decisions of an Impartial Hearing Officer (“IHO”) dated June 4, 2016 and January 26, 2017; the decisions of a State Review Officer (“SRO”) dated July 11, 2016 (Application of a Student with a Disability, Appeal No. 16-040) and March 23, 2017 (Application of a Student with a Disability, Appeal No. 17-015); and the decisions in C.K and T.K., on behalf of A.K., and A.K. v. Board of Education of the Westhampton Beach Union Free School District, 185 FSupp3d 317, and Board of Education, Westhampton Beach Union Free School District v. C.K. and T.K., et al., Sup Ct, Suffolk County, September 29, 2017, Ford, J., in reciting the history of this matter, as well as Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,367.
 Respondent commenced a Special Proceeding in Supreme Court, Suffolk County seeking review of the SRO’s decision which held that an IHO had concurrent jurisdiction with the Commissioner of Education to determine respondent’s obligations - pursuant to the contract with Remsenburg-Speonk – to convene a CSE, develop an IEP, and provide a FAPE to petitioners’ son and remanded petitioners’ due process complaint notice regarding the provision of a FAPE to the IHO for further review. On September 29, 2017, the court dismissed the proceeding (Board of Education, Westhampton Beach Union Free School District v. C.K. and T.K., et al., Sup Ct, Suffolk County, September 29, 2017, Ford, J.).
 Petitioners submitted an application pursuant to §276.5 of the Commissioner’s regulations requesting to submit additional evidence, namely, the transcript from the impartial due process hearing that was concurrently conducted regarding the student. Because the appeal is dismissed for the reasons set forth in this decision, petitioners’ application is denied. I also note that it would not be appropriate for me to review a transcript of an impartial due process hearing which was appealed to the Office of State Review.
 IHO decision dated June 4, 2016; SRO decision dated July 11, 2016 (Application of a Student with a Disability, Appeal No. 16-040).
 Petitioners subsequently challenged the appropriateness of that recommendation.