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Decision No. 14,524

Appeal of the BOARD OF EDUCATION OF THE TOWN OF WEBB UNION FREE SCHOOL DISTRICT from action of the Board of Education of the Little Falls Central School District, regarding tuition reimbursement.

Decision No. 14,524

(December 21, 2000)

George J. Villiere, Esq., attorney for petitioner

Bart M. Carrig, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the failure of the Board of Education of the Little Falls Central School District ("respondent") to provide tuition reimbursement for four foster care students who were placed in petitioner's district at various times during the 1997-98 and 1998-99 school years. The appeal must be dismissed.

The record reflects that four children were residents of respondent’s district, under the custody of the Herkimer County Department of Social Services, when they were placed in foster homes in petitioner's district for the following time periods:

Student 1 -September 1997-June 1998;

Student 2 -November 1997-December 1997;

Student 3 -February 1998-June 1998;

Student 4 -October 1998-November 6, 1998 and December 18, 1998- February 26, 1999.

On February 24, 1998, petitioner presented respondent with a tuition bill for Student 2 in the amount of $843.03. On June 24, 1998, petitioner presented respondent with a tuition bill for Student 1 in the amount of $9,263 and a separate invoice for Student 3 in the amount of $3,715.43. In a letter dated February 10, 1999, petitioner notified respondent of an ensuing invoice for Student 4. On March 3, 1999, petitioner supplied respondent with a tuition bill for Student 4 in the amount of $2,482.16. Respondent has not reimbursed petitioner for the tuition due for any of these students.

On June 7, 2000, petitioner commenced this appeal seeking tuition reimbursement for these students. Petitioner asserts that these students were residents of respondent’s district prior to their placement in foster care in petitioner's school district. Accordingly, petitioner asserts that respondent is responsible to pay tuition for the time these students attended school in petitioner's district. Petitioner seeks a total of $15,614.31 in tuition from respondent for these students.

Respondent claims that petitioner failed to make timely tuition reimbursement claims and is therefore not entitled to reimbursement. Respondent also asserts that on February 17, 2000, petitioner elected to pursue a legal claim in Herkimer County Supreme Court and may not simultaneously pursue a remedy pursuant to Education Law "310. Moreover, respondent contends that this appeal is untimely.

As a threshold matter, the petition must be dismissed because there is an action pending in the Herkimer County Supreme Court between these parties over tuition reimbursement for these students. It is well settled that the Commissioner of Education will not entertain an appeal where it appears that the issue in controversy is simultaneously being litigated in another forum (Appeal of a Student with a Disability, 36 Ed Dept Rep 287, Decision No. 13,726; Appeal of Stuyvesant High School Parents Association, 35 id. 87, Decision No. 13,475).

If this appeal had not been dismissed on jurisdictional grounds, I would be constrained to dismiss it as untimely. An appeal to the Commissioner under Education Law "310 must be brought within 30 days of the act or decision complained of (8 NYCRR "275.16). The four students at issue attended school in petitioner's district between September 1997 and February 1999. This appeal was commenced on June 7, 2000. As previous Commissioner’s decisions have held, petitioner’s appeals pursuant to Education Law "310 should have been commenced within 30 days of the conclusion of the school years for which petitioner sought foster care tuition payments under Education Law "3202(4)(a). (Appeal of the Sole Trustee of the Hickory-South Mountain Common School District No. 1, 38 Ed Dept Rep 577, Decision No. 14,097; Matter of Sanfilippo, 24 id. 81, Decision No. 11,323.) Accordingly, petitioner's claims concerning the repayment of tuition would be dismissed as untimely (Matter of Sanfilippo, supra).

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