Appeal of the BOARD OF EDUCATION OF THE EAST RAMAPO CENTRAL SCHOOL DISTRICT and DEBORAH L. WORTHAM as Superintendent from action of the Board of Education of the Suffern Central School District and Superintendent Lisa Weber as Superintendent regarding reimbursement for the provision of health and welfare services.

Appeal of the BOARD OF EDUCATION OF THE SUFFERN CENTRAL SCHOOL DISTRICT from action of the Board of Education of the East Ramapo Central School District regarding reimbursement for the provision of health and welfare services.

Decision No. 17,999

(June 8, 2021)

Harris Beach PLLC, attorneys for the Board of Education of the East Ramapo Central School District, Amanda E. Jackson and Douglas E. Gerhardt, Esqs., of counsel

Shaw, Perelson, May & Lambert, LLP, attorneys for the Board of Education of the Suffern Central School District, David Shaw, Esq., of counsel

ROSA., Commissioner.--In two separate appeals, the Board of Education of the East Ramapo Central School District (“East Ramapo”) and the Board of Education of the Suffern Central School District (“Suffern”) dispute reimbursement of health and welfare costs related to the 2019-2020 school year.  Because the appeals present similar issues of fact and law, they are consolidated for decision.

In the first appeal (“Appeal I”), East Ramapo appeals Suffern’s refusal to reimburse it for providing health and welfare services to residents of Suffern’s district who attended private schools within the geographical confines of East Ramapo during the 2019-2020 school year.

On June 16, 2020, East Ramapo submitted an invoice to Suffern, pursuant to Education Law § 912, for reimbursement of health and welfare costs in the amount of $147,034.41 incurred on behalf of 219 students who resided in the Suffern Central School District but attended a nonpublic school in East Ramapo Central School District during the 2019-2020 school year.  Additionally, East Ramapo sent Suffern a Statement of Account showing outstanding costs for health and welfare services related to the 2018-2019 school year in the amount of $474,249.12.

The record indicates that Suffern has not paid East Ramapo for any health and welfare services billed for the 2018-2019 and 2019-2020 school years.  East Ramapo commenced a proceeding in Supreme Court[1] in June 2020 to recover the health and welfare costs for the 2018-2019 school year.  Appeal I ensued.[2]

In the second appeal (“Appeal II”), Suffern appeals East Ramapo’s refusal to reimburse Suffern for providing health and welfare services to residents of East Ramapo’s district who attended private school in Suffern’s district during the 2019-2020 school year. 

On March 24, 2020, Suffern submitted an invoice to East Ramapo, pursuant to Education Law § 912, for reimbursement of health and welfare costs incurred on behalf of 329 students who resided in East Ramapo Central School District but attended a nonpublic school in Suffern Central School District during the 2019-2020 school year.  Suffern calculated the cost of such services as $208,942.67.

The record indicates that East Ramapo has not paid Suffern for any health and welfare services billed for the 2019-2020 school year.  Appeal II ensued.

In Appeal I, East Ramapo requests an order directing Suffern to pay $147,034.41 for costs of health and welfare services provided to private school students who resided within the Suffern Central School District during the 2019-2020 school year.[3]  East Ramapo argues that Appeal II must be dismissed as untimely and for failure to state a claim upon which relief may be granted based upon the absence of a duly executed contract.  East Ramapo also argues that the claims are barred by the “equitable doctrines of laches, res judicata, estoppel, and/or waiver.”  Additionally, should Suffern’s requested relief be granted, East Ramapo asserts that Suffern will be unfairly and unjustly enriched because payment of the parties’ invoices will result in a net balance owed by East Ramapo.[4]

Suffern argues, with regard to Appeal I, that East Ramapo is indebted to Suffern – in excess of the sum it allegedly owes East Ramapo – in the amount of $61,908.26[5] for health and welfare services provided to resident students of East Ramapo who attended nonpublic school in Suffern’s boundaries.  Suffern requests that I dismiss Appeal I and issue an order directing East Ramapo to pay Suffern in that amount.  In Appeal II, Suffern requests an order directing East Ramapo to pay it for costs of health and welfare services provided to private school students who resided within the East Ramapo Central School District during the 2019-2020 school year in the amount of $208,942.67.

I must first address the procedural matters specific to these appeals.  East Ramapo objects to the scope of Suffern’s reply and requests permission, to which Suffern objects, to submit a sur-reply.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14).  A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  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.

Similarly, a sur-reply may not improperly buttress allegations that should have been asserted in an answer (see Appeal of Kadukara, 51 Ed Dept Rep, Decision No. 16,345; Appeal of Malone and Trombley, 39 id. 135, Decision No. 14,194).  As noted above, I have not considered any portion of Suffern’s reply that is not responsive to new material or affirmative defenses in the answer.  To the extent that any portion of the sur-reply is in response to claims improperly raised in the reply, therefore, there is no need for me to consider such portion of East Ramapo’s sur-reply affirmation (see Appeal of a Student with a Disability, 55 Ed Dept Rep, Decision No. 16,907; Appeal of M.I.B., 55 id., Decision No. 16,847).

East Ramapo next argues, without elaboration, that Suffern’s appeal is untimely.  An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  In Appeal of the Bd. of Educ. of the New Hyde Park-Garden City Park Union Free Sch. Dist. (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, the appeal must be commenced within 30 days after the conclusion of the school year in which the costs were incurred.  Here, Suffern commenced its appeal on July 30, 2020, exactly 30 days after the conclusion of the 2019-2020 school year.  Accordingly, Suffern’s appeal is timely.  

Turning to the merits, Education Law § 912 requires districts to provide the same health and welfare services for nonresident students who attend nonpublic school in their district that they provide to resident students who attend public school in the district.  The district of attendance is entitled to charge the district of residence for 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, to whom the district of attendance provides such services (Appeal of the Bd. of Educ. of the Greenburgh Central Sch. Dist. No. 7, 33 Ed Dept Rep 81, Decision No. 12,983; Matter of the Bd. of Educ. of the City Sch. Dist. of the City of New Rochelle, 23 id. 355, Decision No. 11,246; Matter of the Bd. of Educ. of the Elmsford Union Free Sch. Dist., 22 id. 151, Decision No. 10,913).

Education Law § 912, however, does not address the type of documentation that is required to obtain reimbursement.  Instead, § 912 calls for a written contract between the district of residence and the district of attendance:

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.  Every such contract shall be in writing and in the form prescribed by the commissioner, and before such contract is executed the same shall be submitted for approval to the superintendent of schools having jurisdiction over such district of residence and such contract shall not become effective until approved by such superintendent.

However, the Commissioner has repeatedly held that even if the technical requirements of § 912 have not been complied with and no contract has been entered into, neither board of education may be absolved of its statutory duty to provide health services or to reimburse another district for such services, as applicable (Matter of the Bd. of Educ. of the City Sch. Dist. of the City of New Rochelle, 23 Ed Dept Rep 355, Decision No. 11,246; Matter of the Bd. of Educ. of the City Sch. Dist. of the City of Plattsburgh, 10 id. 228, Decision No. 8,287; Matter of Union Free Sch. Dist. No. 10 of the Town of Southold, 1 id. 197, Decision No. 6,546).

Neither school district has complied with the technical requirements of Education Law § 912.  There is no indication in the record that the parties had a fully executed written contract for the 2019-2020 school year.  The record indicates that East Ramapo submitted to Suffern a health and welfare services agreement executed by its superintendent and board president for the 2019-2020 school year.  It appears that Suffern took no action in response to this unilaterally executed agreement.  Similarly, the record indicates that Suffern submitted to East Ramapo a health and welfare services agreement executed by its superintendent and board president for the 2019-2020 school year.  It appears that East Ramapo took no action in response to this unilaterally executed agreement.  I admonish the parties to comply with Education Law § 912; this requires execution of a final, written agreement, not merely the exchange of unilaterally executed contracts (see Appeal of the Bd. of Educ. of the East Ramapo Central Sch. Dist., et al., 58 id., Decision No. 17,612; Appeal of the Bd. of Educ. of the East Ramapo Central Sch. Dist., et al., 58 Ed Dept Rep, Decision No. 17,456). 

Turning to the merits, the parties do not dispute the nature, extent, or cost of the services, nor do they contest the residency of the students to whom the services were provided.  Instead, they argue over who has a net balance owed to it – with East Ramapo basing its calculation on both the 2018-2019 and 2019-2020 years[6] and Suffern using only the 2019-2020 school year.[7]

As indicated above, claims related to the 2018-2019 school year are not before me in these appeals.  Therefore, I am constrained to consider only those monies owed for the 2019-2020 school year.  I am similarly constrained to sustain both appeals insofar as Suffern and East Ramapo concede the nature and amount of reimbursement for health and welfare services owed to each other.

Given the lack of any genuine dispute in these appeals, it is unclear why the parties could not resolve these outstanding payments at the local level.  In the future, I encourage the parties to consider whether an appeal to the Commissioner under such circumstances constitutes a prudent use of district resources.

THE APPEALS ARE SUSTAINED IN PART.

IT IS ORDERED that Suffern pay to East Ramapo the sum of $147,034.41 owed for the 2019-2020 school year.

IT IS ORDERED that East Ramapo pay to Suffern the sum of $208,942.67 owed for the 2019-2020 school year.

END OF FILE