Appeals of the BOARD OF EDUCATION OF THE HORSEHEADS CENTRAL SCHOOL DISTRICT from action of the Board of Education of the City School District of the City of Elmira relating to reimbursement for the provision of health and welfare services.

Decision No. 17,741

(August 26, 2019)

Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP, attorneys for petitioner, James A. Gregory, Esq., of counsel

The Law Firm of Frank W. Miller, attorneys for respondent, Frank W. Miller, Esq., of counsel

ELIA., Commissioner--In two separate appeals, petitioner appeals the refusal of the Board of Education of the City School District of the City of Elmira (“respondent”) to reimburse petitioner for providing health and welfare services to residents of respondent’s district who attended private prekindergarten in petitioner’s district during the 2016-2017 and 2017-2018 school years.  Because the appeals present similar issues of fact and law, they are consolidated for decision.  The appeals must be sustained.

By letter dated March 13, 2018, petitioner’s district treasurer submitted an invoice to respondent pursuant to Education Law §912 for reimbursement of health and welfare costs incurred on behalf of 150 students in prekindergarten through 12th grade who resided in respondent’s district, but attended a nonpublic prekindergarten program or nonpublic school in petitioner’s district during the 2016-2017 school year.  Petitioner calculated the per student cost of such services at $266.87 per student or $40,030.50 for all 150 students.  In support of its invoice, petitioner submitted a list of student names and addresses, but provided no additional information concerning the school health services it provided to the nonpublic school students.

By email dated March 23, 2017, respondent’s secretary for business and legal services responded to the invoice by stating that “[a]s of now, the Elmira City School District is not paying for health and welfare services for Pre-K students.”  In response, by email dated May 25, 2017, petitioner’s school business administrator questioned whether respondent intended to pay the portion of the invoice of health and welfare services for the 136 students in kindergarten through grade 12 while the parties worked out the disputed payment for the 14 prekindergarten students.  Respondent’s school business administrator indicated that respondent would remit payment upon receipt of an updated invoice that did not include the prekindergarten students.  In response, petitioner’s school business administrator informed respondent that petitioner would not revise the invoice because such services are required to be provided pursuant to Education Law §912.  By check dated June 30, 2017, received by petitioner on July 5, 2017, respondent submitted payment in the amount of $36,408.07, reflecting the cost for health and welfare services for the 136 students in kindergarten through grade 12.  The payment for the costs of the health and welfare services provided by petitioner to respondent’s 14 prekindergarten students in the 2016-2017 school year remains pending.

By letter dated March 2, 2019, petitioner’s district treasurer submitted an invoice to respondent pursuant to Education Law §912, for reimbursement of health and welfare costs incurred on behalf of 123 students in prekindergarten through grade 12 who resided in respondent’s district, but attended a nonpublic prekindergarten program or nonpublic school in petitioner’s district during the 2017-2018 school year.  Petitioner calculated the per student cost of such services at $210.25, or $34,470.00 for all 123 students.  In support of its invoice, petitioner submitted a list of student names and addresses, but provided no additional information concerning the school health services it provided to the nonpublic school students.

On or about May 4, 2019, respondent returned the invoice to petitioner along with a check in the amount of $30,827.50.  Respondent noted on the invoice that such payment reflected the cost for health and welfare services for the 110 students in kindergarten through grade 12.  The payment for the costs of the health and welfare services provided by petitioner to respondent’s 13 prekindergarten students in the 2017-2018 school year remains pending.  The record also indicates that, in an effort to assuage respondent’s concerns about the residence of the prekindergarten students, petitioner submitted to respondent affidavits from officials from the nonpublic schools affirming the accuracy of the names and addresses of all the students to whom health services were provided in the 2017-2018 school year.  These appeals ensued.

Petitioner asserts that because Education Law §912 requires districts to provide resident children who attend nonpublic schools the same health and welfare services which are made available by the voters and/or trustees or boards of education to children attending the public schools of the district, and respondent offers prekindergarten to its resident public school students, respondent is obligated to provide such health and welfare services pursuant to Education Law §912.  Petitioner further contends that providing health and welfare services to prekindergarten students is supported by the legislative and regulatory intent of Education Law §§912 and 3602-e and Part 117 of the Commissioner’s regulations.

As relief, petitioner seeks clarification that Education Law §912 requires the provision of health and welfare services for prekindergarten students who reside in a district that offers prekindergarten to its resident students.  Petitioner further seeks an order requiring respondent to reimburse petitioner for the health and welfare services provided to respondent’s resident prekindergarten students attending nonpublic schools within petitioner’s district in the 2016-2017 and 2017-2018 school years.  Alternatively, if such relief is not granted, petitioner seeks an order establishing that such services are not reimbursable and therefore are not authorized to be provided to students attending nonpublic prekindergarten programs.

Respondent contends that the petitions should be dismissed as untimely, for failure to state a claim, and for failure to establish a clear legal right to the relief requested.  Respondent further contends that neither Commissioner’s regulations, nor Education Law §912, require the provision of health and welfare services to prekindergarten students who attend a nonpublic school outside the boundaries of the district of residence.  Additionally, respondent asserts that petitioner failed to provide sufficient evidence of the health and welfare services provided to the prekindergarten students, or that such students were actually residents of respondent’s district.

I must first address the issue of timeliness.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).

The record indicates that the appeals were commenced by personal service upon respondent on July 28, 2017 and August 10, 2018, respectively.  Respondent argues that both petitions are untimely because respondent notified petitioner that it was refusing to pay the portion of the health services costs attributable to the 14 prekindergarten students on May 25, 2017 (for the 2016-2017 school year), and for the 13 prekindergarten students on May 4, 2018 (for the 2017-2018 school year).  At the time the appeals were commenced, the Commissioner had ruled in a series of decisions that that the 30-day timeline did not apply to appeals relating to reimbursement for school health services (see Appeal of the Board of Education of the Brighton Central School District, 36 Ed Dept Rep 381, Decision No. 13,755; Matter of Board of Education of the City School District of the City of Long Beach, 5 id. 180, Decision No. 7,633; Matter of Central High School District No. 2, Towns of Hempstead and North Hempstead, 2 id. 255, Decision No. 7,066).  Thereafter, in Appeal of the Board of Education of the New Hyde Park-Garden City Park Union Free School District (57 Ed Dept Rep, Decision No. 17,397), I held that, in an appeal to the Commissioner pursuant to Education Law §310 seeking reimbursement for health services, an appeal must be commenced within 30 days after the conclusion of the school year in which the costs were incurred.  I also held in that appeal that, given the parties’ reliance on those prior Commissioner’s decisions that declined to apply the 30-day timeline to disputes over reimbursement for the provision of school health services, it would be fundamentally unfair to apply the new rule retroactively to reimbursement disputes which arose prior to May 30, 2018, the date of such decision.  Similarly, because that decision was rendered late in the 2017-2018 school year and school districts needed time to adjust their billing and reimbursement practices in light of the new rule, I held that it would not be appropriate to apply the new rule to claims for reimbursement for services rendered during the 2017-2018 school year even where the dispute arose after the date of that decision.  Accordingly, I held in that appeal that the new rule applied only to those cases involving reimbursement for services rendered in the 2018-2019 school year and beyond.  Thus, because both appeals relate to services rendered in the 2016-2017 and 2017-2018 school years, I decline to dismiss the appeal as untimely.

Turning to the merits, Education Law §912 provides, in relevant part:

The voters and/or trustees or board of education of every school district shall, upon request of the authorities of a school other than public, provide resident children who attend such school with any or all of the health and welfare services and facilities which are made available by such voters and/or trustees or board of education to or for children attending the public schools of the district ....  Where children residing in one school district attend a school other than public located in another school district, the school authorities of the district of residence shall contract with the school authorities of the district where such nonpublic school is located, for the provision of such health and welfare services and facilities to such children by the school district where such nonpublic school is located, for a consideration to be agreed upon between the school authorities of such districts, subject to the approval of the qualified voters of the district of residence when required under the provisions of this chapter.

Therefore, pursuant to Education Law §912, a school district is obligated to provide the same health and welfare services and facilities for resident students who attend nonpublic schools located in its district that it provides to resident students who attend public school in the district.  Further, where students attend a nonpublic school outside their district of residence, the district of residence shall contract with the district providing such health services to nonresident nonpublic school students.  The district of location is entitled to charge the school district of residence with the cost of providing such services.  The proper charge to the district of residence for each student is the total cost of all health and welfare services divided by the total number of students, public and nonpublic (Appeal of the Board of Education, Greenburgh Central School District No. 7, 33 Ed Dept Rep 81, Decision No. 12,983; Matter of the Board of Education, City School District of the City of New Rochelle, 23 id. 355, Decision No. 11,246; Matter of the Board of Education, Elmsford Union Free School District, 22 id. 151, Decision No. 10,913).

Respondent admits that it provides a public prekindergarten program, though it is unclear from the record what school health services it provides to students attending such publicly funded prekindergarten program.  Petitioner also alleges that the students for which it is claiming reimbursement are “UPK students.”[1]

Petitioner argues that Education Law §912 makes no distinction about the grade level of the nonpublic students; thus, under the plain language of Education Law §912, it is entitled to reimbursement for the cost of the health services it has provided to nonpublic prekindergarten students who are residents of respondent’s district.  Petitioner further argues that Part 117 of the Commissioner’s regulations requires extensive health and welfare screening for new entrants, including students entering prekindergarten, and thus requires it to provide health and welfare services to its own prekindergarten students.

Respondent argues that extending the provision of health services to prekindergarten students is unsupported by Education Law §912 and Part 117 of the Commissioner’s regulations.  Specifically, respondent contends that a nonpublic student attending a prekindergarten program is not “attending a school other than public” within the meaning of Education Law §912.  Respondent argues that §912 cannot apply because prekindergarten students are not of compulsory school age pursuant to Education Law §3202(1), which makes attendance in a prekindergarten program optional, and the Compulsory Attendance Law (Section 1 of Article 65 of the Education Law) refers to attendance upon instruction as compulsory attendance.  Respondent similarly argues that under Education Law §3602-e, attendance in a UPK program is optional.

Respondent further argues that Education Law §912 cannot be read to require the provision of school health services to prekindergarten students who attend nonpublic schools because such statute pre-dates the adoption of Education Law §3602-e, which established the universal prekindergarten program.  Respondent asserts that, had the Legislature wished to confer the benefits of Education Law §912 on such prekindergarten students, the statute would have been amended to explicitly include such requirement.  Therefore, respondent argues that because the Legislature did not extend the requirement for compulsory education to include such students in Education Law §3602, petitioner’s request for the reimbursement of school health services provided to prekindergarten students who are not of compulsory school age is arbitrary and capricious.

Respondent argues that a prekindergarten student does not “attend” a nonpublic school within the meaning of Education Law §912, because prekindergarten is a program rather than a grade.  As noted above, petitioner has not proven that the nonpublic school at issue herein was, in fact, participating in petitioner’s UPK program, which means that the status of UPK as a program rather than a grade is not dispositive of this appeal (cf. Appeal of Boys Preparatory Charter School of New York, 55 Ed Dept Rep, Decision No. 16,788).

As noted above, the issue in this appeal is whether a student enrolled in a prekindergarten program provided by a nonpublic school “attend[s] a school other than public” within the meaning of Education Law §912 where a district operates a UPK program for which the student would otherwise be eligible.  Neither party has cited to any prior decisions of the Commissioner or judicial authority addressing the applicability of Education Law §912 to prekindergarten students attending a nonpublic school.  In interpreting a statute, the plain meaning of the words govern (McKinney’s Cons. Laws of NY, Book 1, Statutes §94) and, where the statutory language is clear and unambiguous, a court must give effect to the plain meaning of the words used (Judge Rotenberg Educational Center v. Maul, 91 NY2d 298; Doctors Council v. New York City Employees' Retirement System, 71 NY2d 669; Zaldin v. Concord Hotel, 48 NY2d 107).  As evidenced by the parties’ dispute, I find that the language “attend a school other than public,” at least as applied to the facts of this appeal, to be ambiguous.  Therefore, I must ascertain the legislative intent behind Education Law §912 by examining its legislative history.

Generally, legislative intent is to be ascertained from the words and language used, and the language is to be generally construed according to its most natural and obvious meaning, without resorting to an artificial or forced construction (McKinney’s Cons. Laws of NY, Book 1, Statutes §94).  No part of the statute may be ignored, because the statute must be construed as a whole, and all parts are to be read and construed together to determine the legislative intent (McKinney’s Cons. Laws of NY, Book 1, Statutes §97).  The parts of the statute must be harmonized with each other and with the general intent of the statute, and effect and meaning must, if possible, be given to the entire statute and to each part of the statute (McKinney’s Cons. Laws of NY, Book 1, Statutes §98).

Education Law §912 was enacted in 1947, when the Education Law was recodified by Chapter 821 of the Laws of 1947.  The requirement that school health services be provided to students who attend a school other than a public school was first added in 1939, when former §578 of the Education Law, the predecessor to Education Law §912, was added by Chapter 731 of the Laws of 1939.  As petitioner contends, neither Education Law §912 nor its predecessor Education Law §578 included language that limited eligibility for school health services based on grade level.

The Bill Jacket to Chapter 731 of the Laws of 1939 contains no reference to the grade level of students attending nonpublic schools.  Chapter 731 of the Laws of 1939 was enacted after adoption of amendments to Article 7, §8 and Article 8, §1 of the New York Constitution to exempt health and welfare services from the prohibition against gifts of public funds.  As set forth in the Bill Jacket, the Constitutional amendment was for the purpose of “authorizing the Legislature to supply such [health] services to all children and parents on an equal basis.”

     Additionally, as set forth in the Bill Jacket:

The bill is merely permissive, but it will make possible the extension of health and welfare services to nonpublic school children to the extent that these are granted to public school pupils at the present time.  Further, if in the future such services to public school children are enlarged, the nonpublic school children will automatically benefit to the same extent under these provisions.  The proposal as framed is a flexible means of carrying out the Constitutional provisions designed to afford health and welfare services for all the children of the State.

Given the broad intent of the Legislature to ensure that students receive health and welfare services – and, in particular, the Legislature’s explicit contemplation that students in nonpublic schools would “automatically” receive health and welfare services if public school services were “enlarged” – I find petitioner’s reading of Education Law §912 to be more persuasive.

I find no merit to respondent’s argument that prekindergarten students do not “attend” school within the meaning of Education Law §912 for the purpose of providing the same health services that are provided to its resident students.  The Merriam-Webster Online Dictionary defines “attend” as “1:  to be present at: to go to,” and that is consistent with the common usage of the term in a school setting.  Giving the term ”attending” its natural and obvious meaning, a nonpublic prekindergarten student who is present as a student in the nonpublic school is “attending” that school within the meaning of Education Law §912.  There is no language in Education Law §912 that links attendance to compulsory attendance, and I reject respondent’s argument that a nonpublic student whose attendance is optional and not required under Education Law §3205[2] is not attending that school within the meaning of Education Law §912.[3]  Whether a student is receiving instruction in a nonpublic school that maintains a prekindergarten program, kindergarten or any of the grades one to twelve, that student is “attending” the nonpublic school within the most natural and obvious meaning of that term.

For the reasons described above, I also reject respondent’s argument that because Education Law §912 pre-dates the enactment of Education Law §3602-e, which established the UPK program, §912 cannot apply to the students at issue in this appeal because the Legislature did not subsequently amend Education Law §912 or Education Law §3602-e to explicitly require that where a school district offers a UPK program it must also ensure that resident students attending a nonpublic prekindergarten program receive school health services.  As described above, the Bill Jacket for Education Law §912 explicitly contemplated that services for nonpublic students would “automatically” expand as such services expanded for public school students, and there is no language in the statute that limits eligibility based on age or grade level.

Therefore, I find that petitioner is entitled to receive reimbursement from respondent for the cost of school health services it provided to nonpublic prekindergarten students who resided in respondent’s district in the 2016-2017 and 2017-2018 school years.

With respect to respondent’s obligation to reimburse petitioner for such costs, I reject respondent’s arguments that the appeal must be dismissed because petitioner failed to provide sufficient documentation of the cost of the services provided to the nonpublic prekindergarten students who reside in respondent’s district.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

While petitioner has made conclusory allegations that respondent owes $3,736.18 in reimbursement for 14 prekindergarten students in the 2016-2017 school year[4] who allegedly reside in respondent’s district, the petition includes no documentation to support such allegations.  The record indicates that petitioner provided respondent with a cover letter in which it asserted that respondent owes $266.87 per student for all 150 students and attaches a list of students, including the 14 students identified as prekindergarten students.  While respondent is correct that petitioner has not provided documentation of the services it provided to nonresident nonpublic school prekindergarten students, on this record it appears that respondent made payment in the amount of $36,294.32 for school health services provided to the remainder of the 150 students in kindergarten through grade 12 in the 2016-2017 school year, and $30,828.25 for 110 students in kindergarten through grade 12 in the 2017-2018 school year.  There is no evidence that respondent required additional documentation of the school health services provided to the nonpublic school students in kindergarten through grade 12, and it is clear that respondent paid the $267.87 and $210.25 per student rate for those kindergarten through grade 12 students.

As noted above, the amount of reimbursement to which petitioner is entitled is the total cost of all health and welfare services divided by the total number of students, public and nonpublic (Appeal of the Board of Education, Greenburgh Central School District No. 7, 33 Ed Dept Rep 81, Decision No. 12,983; Matter of the Board of Education, City School District of the City of New Rochelle, 23 id. 355, Decision No. 11,246; Matter of the Board of Education, Elmsford Union Free School District, 22 id. 151, Decision No. 10,913).  In both school years, the per-student rate was computed with the cost of services to the prekindergarten students included.  Since respondent did not challenge the per student computation with respect to the K-12 students, under the circumstances I find that respondent may not arbitrarily and selectively challenge such computation only for prekindergarten students (see Appeal of the City School District of the City of New Rochelle, 35 Ed Dept Rep 198, Decision No. 13,514).  Respondent asserts in its answer in the 2016-2017 school year appeal that it “has never refused to pay health and welfare service charges for K-12 students who reside in Respondent’s district, but only rejected Petitioner’s demand for payment for health and welfare services provided to Pre-K students....”  Thus, it is clear that the basis for respondent’s rejection of the cost of school health services provided to prekindergarten students was respondent’s belief that it was not obligated to reimburse for such services provided to prekindergarten students, and not an objection to the computation of the amount of reimbursement owed per student.

Similarly, respondent asserts that petitioner failed to establish that the prekindergarten students at issue are residents of respondent’s district.  However, the record in both appeals reflects that petitioner provided respondent with a list of all of respondent’s resident students with their addresses within respondent’s district along with the total cost for health services for all students.  There is no evidence in either appeal that respondent disputed the residency of the K-12 students and respondent has provided no explanation of why it is disputing the residency of the prekindergarten students.  In fact, the record indicates that for the 2016-2017 school year, 7 of the 14 students, and for the 2017-2018 school year, 3 of the 13 students, are siblings of kindergarten through grade 12 students residing at the same addresses for whom reimbursement was paid.  Therefore, on this record, respondent is arbitrarily and selectively objecting to the residency of only prekindergarten students, which it may not do (see Appeal of the City School District of the City of New Rochelle, 35 Ed Dept Rep 198, Decision No. 13,514).  Therefore, on this record I find no merit to respondent’s arguments that the petition must be dismissed based on petitioner’s failure to provide sufficient documentation of the cost of the school health services provided, or the residency of the nonpublic prekindergarten students.  Accordingly, I find that respondent is responsible for the cost of services provided to the 14 prekindergarten students as submitted by petitioner for the 2016-2017 school year, and for the 13 prekindergarten students as submitted by petitioner for the 2017-2018 school year.

Finally, I admonish both parties and particularly respondent, that both districts were not in compliance with Education Law §912 during the school years at issue in this appeal.  As indicated above, that statute requires that districts enter into contracts to facilitate reimbursement for health services.  The record indicates that petitioner requested that respondent enter such a written contract, but respondent refused to do so.  To the extent respondent has concerns about the computation of the cost of school health services, Education Law §912 explicitly requires that the contract specify the consideration to be paid by the district of residence.  To the extent respondent has concerns about the residency of the nonpublic students, the contract should also specify what kind of information or documents shall constitute acceptable proof of residency (see Appeal of the Board of Education of the East Ramapo Central School District, 58 Ed Dept Rep, Decision No. 17,456).  Education Law §912 envisions a system where claims are promptly submitted and reimbursed.  The parties need to enter into a written contract as required by Education Law §912 to avoid the risk of unnecessary future disputes.

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEALS ARE SUSTAINED.

IT IS ORDERED that respondent pay to petitioner the remaining sums owed for the 2016-2017 and 2017-2018 school years, less any amount which may have been paid prior to the date of this decision, in compensation for health services rendered to residents of respondent’s district in accordance with this decision.

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