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Decision No. 16,885

Appeal of the BOARD OF EDUCATION OF THE TUXEDO UNION FREE SCHOOL DISTRICT from action of the Board of Education of the Greenwood Lake Union Free School District regarding non-resident tuition.

Decision No. 16,885

(March 17, 2016)

Frazier & Feldman, LLP, attorneys for petitioner, James H. Pyun, Esq., of counsel

Lamb & Barnosky, LLP, attorneys for respondent, Lauren Schnitzer, Esq., of counsel

ELIA, Commissioner.--Petitioner Board of Education of the Tuxedo Union Free School District challenges the refusal of the Board of Education of the Greenwood Lake Union Free School District (“respondent”) to pay certain costs for respondent’s special education students educated in petitioner’s district pursuant to a non-resident tuition contract.  The appeal must be dismissed.

According to the record, for more than 30 years, respondent’s resident students in grades 9 through 12 were educated by petitioner pursuant to contracts authorized by Education Law §2040.  On July 8, 2009, petitioner and respondent entered into a five-year Memorandum of Agreement (“2009 MOA”) which set forth the tuition rates for the 2008-2009 through 2012-2013 school years.  Under the 2009 MOA, the tuition rate for general education students was $12,800 and the tuition rate for special education students was twice that amount ($25,600).[1]

Thereafter, petitioner and respondent began negotiating a successor agreement.  Due to difficulties in the negotiations, specifically with regard to the special education tuition rate, the districts executed a Memorandum of Agreement on October 17, 2012 (“2012 MOA”) that covered only the 2013-2014 and the 2014-2015 school years.  Instead of agreeing to a tuition rate for special education students that was twice the rate for general education students, as before, the 2012 MOA provided, in pertinent part:

A. Tuition rate(s): Effective September 1, 2013, tuition shall be:

1.Regular Education Tuition Rate shall be $12,000 per student. 


3.Special Education tuition rate shall be $12,000 per student plus any actual direct cost for IEP services capped at Orange-Ulster BOCES rate or in the event that the particular IEP service(s) is not one for which Orange-Ulster BOCES posts a rate, the actual cost of providing such IEP service(s).


B. Effective September 1, 2014, the Regular Education and Special Education base tuition rates will increase by 2%.  Special Education actual direct costs for IEP services shall be capped at the 2014-15 Orange-Ulster BOCES rate or in the event that the particular IEP service(s) is not one for which Orange-Ulster BOCES posts a rate, the actual cost of providing such IEP service(s).

According to emails between the districts’ superintendents, the $12,000 base rate tuition for all students included, among other things, a teacher – “one person in the classroom during each period there are students scheduled.”

Under the terms of the 2012 MOA, billing was premised on enrollment as of the last Friday in September and January.  On or about October 8, 2013, respondent received an invoice for the first semester of the 2013-2014 school year.  Respondent’s assistant superintendent of business (“assistant superintendent”) rejected the invoice because she believed the computations were incorrect.  The computation for special education students included: the base tuition rate ($12,000); related services costs; administrative costs; study skills (resource room) costs; costs for collaborative (co-teaching) classes; costs for self-contained 15:1 special classes; and, for four of respondent’s students, costs for a Life Skills program. 

In disputing the bill, respondent’s assistant superintendent indicated that respondent was not required by the 2012 MOA to pay petitioner for any special education charges above the base tuition rate other than related services.  She further indicated that respondent was not required to pay for the administrative costs incurred for the Life Skills program petitioner created for four of respondent’s students; and that all administrative costs were included in the base tuition rate.

On October 23, 2013, respondent paid petitioner an amount reflecting only the regular education and special education base tuition rate for its students.  Thereafter, discussions occurred between district personnel.  On or about January 6, 2014, petitioner sent respondent a revised invoice for the special education tuition portion of the first semester bill.  In January 2014, respondent paid $74,847.50 for related services for the 2013-2014 school year.  According to the record, respondent also paid petitioner $33,330.00 in partial payment for the cost of collaborative (co-teaching) classes.

By letter dated January 23, 2014 to respondent’s interim superintendent, petitioner’s superintendent informed respondent that an unpaid balance was overdue and that respondent had not notified petitioner that it disputed the amounts due under the contract.  Petitioner’s superintendent urged that a priority be placed upon resolution of the issues surrounding the special education tuition. 

On February 7, 2014, petitioner’s counsel wrote to respondent’s counsel detailing how petitioner calculated the costs of the special education collaborative (co-teaching) class, self-contained 15:1 special class, study skills (resource room), Life Skills Program and administrative costs.  Another meeting took place between the parties on March 10, 2014.  At this meeting, petitioner reduced the amount claimed for the Life Skills Program.  Thereafter, on or about March 17, 2014, respondent remitted the balance for the 2013-2014 collaborative (co-teaching) class costs. 

On or about March 24, 2014, respondent received the second semester bill for the 2013-2014 school year.  Respondent paid only the base tuition rate for its students.  Apparently, further discussion took place between the districts’ superintendents and respondent met on April 9, 2014 to consider the matter.  By email dated April 10, 2014, respondent’s counsel notified petitioner’s counsel that no change in position had occurred.  He further stated stated, “please consider this email [respondent’s] denial of [petitioner’s] claim for Statute of Limitations purposes.”  This appeal ensued.

According to the record, respondent has paid petitioner the base tuition rate for its students for the 2013-2014 school year.  It also paid for collaborative (co-teaching) costs and $74,847.50 for related services.  Petitioner claims that respondent still owes it tuition under the 2012 MOA for the 2013-2014 school year, including $152,076.16 for the cost of self-contained 15:1 special classes, $55,622.43 for the cost of study skills (resource room) services, an additional $52,407.01 for the cost of related services, $84,236.82 for administrative costs and $164,810.29 for the cost of the Life Skills program, as well as interest at 2% per month. 

Petitioner contends that the parties entered into a valid contract for the 2013-2014 and 2014-2015 school years and that the terms of that contract are “clear and unambiguous” and provide that the tuition charges include a base rate of $12,000 for all students plus the cost of any actual direct special education services to be provided to respondent’s special education students.  Petitioner asserts that, for the 2013-2014 school year, it rendered all services required and fully performed its duties under the contract.  Petitioner claims that respondent is in breach of contract by refusing to make full payment and seeks an order for the unpaid tuition balance for the 2013-2014 school year.

Petitioner also contends that, upon information and belief, respondent indicated it would not pay for the “actual direct costs of providing IEP services” to respondent’s students for the 2014-2015 school year, constituting an anticipatory breach of contract.  Petitioner seeks payment in full of all tuition charges due under the 2012 MOA for the 2014-2015 school year. 

Petitioner contends that respondent has been unjustly enriched by refusing to pay for services provided to its special education students and seeks restitution therefor.  Petitioner also asserts that, in paying some costs but not others, respondent’s refusal to pay all of the special education tuition costs is arbitrary, capricious, without rational basis and in violation of Education Law §§2040-2045.  Petitioner maintains that respondent’s claim that the “actual direct costs for IEP services” are limited to related services is contrary to Education Law and Commissioner’s regulations.  Petitioner also contends that, should the contract be deemed invalid or unenforceable, tuition rates for the years at issue must be established and paid pursuant to Part 174 of the Commissioner’s regulations.  Finally, petitioner seeks late payment fees under the 2012 MOA.

Respondent contends that the appeal is untimely.  Respondent also contends that petitioner’s claims regarding the 2014-2015 school year should be dismissed as premature because petitioner was not aggrieved with respect to that school year and, at the time of the petition, the parties did not know the total number of respondent’s students who would be educated in petitioner’s district during the 2014-2015 school year.  Respondent argues that, regarding the 2014-2015 school year, no request for payment and rejection thereof occurred. 

Respondent further contends that petitioner has not met its burden of proof; that it has not established the facts or legal right to payment under the terms of the 2012 MOA for costs beyond the special education base tuition rate and related services.  Respondent asserts that the 2012 MOA “clearly and unambiguously” obligates it to pay petitioner a base tuition rate of $12,000 for each general and special education student in order to cover the costs for petitioner’s general education and special education classroom programs; that the terms of the contract limit any additional cost of special education services to related services only.  Respondent argues that petitioner has failed to demonstrate that the parties intended under the 2012 MOA that respondent reimburse petitioner “dollar for dollar” for the cost of educating its special education students; instead agreeing to a base tuition rate and additional cost, at the BOCES rate, for related services.

I must first address the procedural matters.  First, petitioner submitted a reply to respondent’s answer.  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).  Petitioner’s reply does not comport with the above.  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.

Second, the appeal must be dismissed as untimely.  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).

Petitioner seeks payment of monies owed for the 2013-2014 school year pursuant to a tuition contract.  The gravamen of the appeal is the parties’ interpretation of the meaning of the contract and the appropriate inclusion of costs thereunder consistent with such interpretation.  Consequently, as set forth below, the 30-day time period to commence the appeal began to run as of the date payment for the claimed amounts due under the contract was denied.

The contract specified the dates on which invoices were to be billed and paid.  Specifically, the 2012 MOA states that billing would be “premised on enrollment as of the last Friday in September and January.”  The contract further specified that payment was due 30 days from the receipt of the invoices and that receipt was “assumed to be two days subsequent to postmark of invoice.”  Respondent received petitioner’s claims for payment by invoice on October 8, 2013 for the first semester, which invoice was revised on January 6, 2014, and on March 24, 2014 for the second semester.  It is undisputed that respondent refused and failed to pay the entire amounts billed on October 8, 2013, January 6, 2014 and March 24, 2014, because it disputed the inclusion of special education costs above the base tuition rate and related services.  Under the contract, payments were due respectively on November 6, 2013, February 5, 2014 and April 23, 2014.  Respondent refused to remit the full amounts billed.

I note that, subsequent to receipt of the October 7, 2013 invoice, the parties engaged in discussions regarding the disputed special education costs, and respondent met on April 9, 2014 to consider the matter.  By email dated April 10, 2014, respondent’s counsel notified petitioner’s counsel that no change in position had occurred.  He further stated, “please consider this email [respondent’s] denial of [petitioner’s] claim for Statute of Limitations purposes.”  Thus, even if the parties’ subsequent discussions extended petitioner’s time to appeal the denied claims, on April 10, 2014, respondent’s denial of petitioner’s claim for the disputed special education costs was final.  This appeal was not commenced until July 22, 2014, well beyond the required 30-day period.

Petitioner’s contention that the appeal is timely because it was commenced within 30 days of the end of the 2013-2014 school year is unavailing.  Prior decisions cited by petitioner in support of its argument are not dispositive.  Those cases did not involve claims arising out of a contract for tuition and the interpretation thereof, as here.  They were not based on a contractual relationship but, instead, upon a statutory obligation that accrued at the end of the applicable school year (e.g. Education Law §3202[4][a] [school district responsibility for students placed in foster care, family homes at board, etc.]).  As discussed above, under the facts of this case, the appeal was required to be commenced within 30 days from the act complained of - that is, the denial of payment - rather than from the end of the school year, because it arose under the specific terms of the contract (Appeal of the Bd. of Educ. of the East Moriches Union Free Sch. Dist., 41 Ed Dept Rep 45, Decision No. 14,610; cf. Brentwood Union Free Sch. Dist. v. City of New York, 237 A.D.2d 141 (1st Dept 1997) [where plaintiff’s cause of action was based in statute rather than contract, the statutory one-year limitations period for reimbursement applied and began to run at the conclusion of the school year rather than when defendants tendered partial payment of its bill] [emphasis supplied]).[2]  Consequently, that part of the appeal seeking payment under the contract for the 2013-2014 school year is untimely.

Moreover, petitioner’s argument that respondent’s refusal to pay the 2013-2014 invoices are also a “continuing violation” of its rights under the contract is unavailing.  To the extent that petitioner relies on the “continuing wrong” doctrine, such reliance is misplaced.  The continuing wrong doctrine applies when the ongoing action is itself an unlawful action, such as the unlawful employment of an unqualified individual (Appeal of Kippen, 48 Ed Dept Rep 469, Decision No. 15,919), unlawful appointments to a district’s shared decision-making team (Appeal of Sadue-Sokolow, 39 Ed Dept Rep 6, Decision No. 14,155), an improperly constituted professional development team (Appeal of Copenhagen Teachers’ Association, et al., 45 Ed Dept Rep 459, Decision No. 15,381) or certain ongoing expenditures under an austerity budget that did not comply with the law (Appeal of Aarseth, 32 Ed Dept Rep 506, Decision No. 12,901).  The doctrine does not apply where the specific action being challenged is a single action, inaction or decision and the resulting effects are not intrinsically unlawful (Application of Ayers, 48 Ed Dept Rep 350, Decision No. 15,883; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821, judgment granted dismissing petition to review, April 8, 2009, Sup.Ct., Albany Co. [Zwack, J.]).  Here, petitioner is challenging respondent’s decision to pay only those amounts under the 2012 MOA that it believed was appropriate.  Such action is not inherently unlawful and, thus, does not constitute a continuing wrong.

Next, to the extent that petitioner is claiming tuition payments for the 2014-2015 school year, such claim must be dismissed.  Respondent contends that petitioner’s claim with respect to the 2014-2015 school year is premature.  Petitioner alleges that respondent has indicated that it will not pay for the actual direct costs of IEP services provided to its students for the 2014-2015 school year and that such refusal constitutes an anticipatory breach of the 2012 MOA for that year.  Respondent denies that allegation.  At the time of the appeal, the parties did not know how many students with disabilities would attend petitioner’s schools, if any, for the 2014-2015 school year or what IEP services would be recommended at that time.  Any decision on this claim, therefore, would be advisory in nature.  The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of B.R. and M.R., 48 Ed Dept Rep 291, Decision No. 15,861; Appeal of Lachler, 47 id. 455, Decision No. 15,752).

Petitioner asserts that, in the event that the 2012 MOA is determined to be invalid or unenforceable with respect to the tuition rate charged for special education instruction, the nonresident tuition rate for such instruction shall be established pursuant to the formula set forth in Part 174 of the Commissioner’s regulations.  However, I have not made any such finding.  Instead, petitioner’s claims are dismissed as untimely and otherwise premature.  Petitioner’s assertion, therefore, has no merit.

Finally, I note that the language of the 2012 MOA with respect to the tuition rate for special education was highly ambiguous and on this record, neither party has persuasively established that its interpretation is the correct one.  This dispute could have been avoided had the parties defined “IEP services,” and I encourage petitioner and respondent to define such critical terms in any future contract. 

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




[1] Due to agreed-upon annual increases, it appears that the final year (2012-2013) tuition was $13,901.86 for general education students and $27,803.72 for special education students.


[2] Although not at issue in the instant appeal, I note that in a case involving the nonresident tuition formula and reconciliation process in section 174.2 of the Commissioner’s regulations, in which revised final tuition rates were issued, the 30-day period commenced upon respondent’s denial of petitioner’s request for payment of the revised final tuition invoices, not 30 days from the end of the school year (see Appeal of the Bd. of Educ. of Center Moriches Union Free Sch. Dist., 53 Ed Dept Rep, Decision No. 16,556).