Appeal of the BOARD OF EDUCATION OF THE EAST HAMPTON UNION FREE SCHOOL DISTRICT from action of the Board of Education of the Montauk Union Free School District regarding nonresident tuition reimbursement for a student with a disability.

Decision No. 16,128

(August 20, 2010)

Lamb & Barnosky, LLP, attorneys for petitioner, Robert H. Cohen, Esq., of counsel

Behrens, Loew & Cullen, attorneys for respondent, William M. Cullen, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the refusal of the Board of Education of the Montauk Union Free School District (“respondent”) to reimburse it for nonresident tuition for a student with a disability.  The appeal must be dismissed.

Respondent provides education for its resident students from kindergarten through eighth grade.  Respondent’s high school age students attend petitioner’s high school.  With the exception of the 2008-2009 school year, petitioner and respondent have entered into contracts that set the nonresident tuition rate respondent pays for education services provided to its resident students.  The parties agree that in the absence of a contract, the rate of nonresident tuition reimbursement is to be calculated in accordance with the formula articulated in §174.2 of the Commissioner’s regulations.

The student in question (“the student”) is a student with a disability who resides in respondent’s district and attended petitioner’s schools beginning with the 2005-2006 school year.  The student received an individualized education program (“IEP”) diploma in June 2008 at age 20.  By letter dated August 1, 2008, the student’s mother advised petitioner that she disagreed with the student’s graduation from school and was therefore enrolling her in a private program and seeking tuition reimbursement from petitioner.  A committee on special education (“CSE”) meeting was subsequently convened and an IEP prepared for the student for the 2008-2009 school year.  Respondent was invited to attend the CSE meeting but did not.  The student’s parents filed a demand for an impartial hearing alleging that petitioner failed to provide the student with a free appropriate public education (“FAPE”) during the 2005-2006, 2006-2007 and 2007-2008 school years and seeking tuition reimbursement for their unilateral placement of the student in a private program for the 2008-2009 school year.

In response to the demand for an impartial hearing, a resolution session was held with the student, her parents and petitioner.  Respondent was invited to attend but did not.  A settlement was agreed upon by the parties which included a payment by petitioner of $27,500 to the parents for the educational component of the private program for the 2008-2009 school year.

By letter dated January 7, 2009, petitioner made respondent aware that it settled the pending impartial hearing and that the student’s name would be included on the roster of students for whom petitioner was seeking tuition reimbursement.  Respondent replied with a January 30, 2009 letter stating that it would assume no responsibility for the student’s tuition or petitioner’s legal expenses from the impartial hearing.  This appeal ensued.

Petitioner alleges that the student, who received an IEP diploma in June 2008, was entitled to another year of education during the 2008-2009 school year because she is a student with a disability and she turned 21 in February 2009.  Petitioner therefore argues that it is improper for respondent to refuse to reimburse petitioner for her 2008-2009 school year tuition.  Petitioner requests that I order respondent to pay $53,192, the nonresident tuition reimbursement rate for special education students for that year.  Alternatively, petitioner requests that I order respondent to reimburse petitioner $27,500 plus reasonable attorney’s fees associated with the due process hearing.

Respondent argues that petitioner’s appeal is untimely.  Respondent also argues that petitioner may not assert a claim for nonresident tuition under the circumstances of this case.  Additionally, respondent states that I lack jurisdiction to require respondent to reimburse petitioner for the costs incurred because the costs were not nonresident tuition charges.  Respondent also asserts that it is not required to reimburse petitioner for an impartial hearing settlement because it did not enter into a tuition reimbursement contract with petitioner for the 2008-2009 school year.  Finally, respondent argues that there is no legal basis for petitioner to recover reasonable attorney’s fees from respondent.

I will first address respondent’s procedural objection.  Respondent alleges that the appeal should 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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Henley, 46 id. 556, Decision No. 15,594).  Petitioner commenced this appeal on March 4, 2009, 30 days after it received a January 30, 2009 letter from respondent rejecting a tuition invoice for the student.  Respondent argues that petitioner’s time to commence this appeal began after receipt of its earlier, November 12, 2008 letter notifying petitioner that it would assume no responsibility for the claims asserted on behalf of the student.  Previous Commissioners’ decisions have held that claims for foster care tuition payments pursuant to Education Law §3202(4)(a) that are owed for a particular school year become due at the completion of that school year and an appeal to the Commissioner must be commenced within 30 days of the end of the school year (Appeal of the Bd. of Educ. of the Canastota CSD, 48 Ed Dept Rep 235, Decision No. 15,847; Appeal of the Bd. of Educ. of the Stamford CSD, 41 id. 220, Decision No. 14,668).  Similarly, this appeal seeks to recoup the tuition costs of educating the student during the 2008-2009 school year and I do not find a basis to dismiss the appeal as untimely since petitioner commenced the appeal several months before the end of that school year (Appeal of the Sole Trustee of the Hickory-South Mountain Common School Dist. No. 1, 38 Ed Dept Rep 577, Decision No. 14,097).

Respondent contends that petitioner may not claim tuition reimbursement for the student because she was no longer a student at petitioner’s high school, tuition is based on the settlement of a claim, the student is attending a school 100 miles from home and there was no impartial hearing officer’s decision.  Essentially, respondent argues that the costs incurred by petitioner for the student’s education for the 2008-2009 school year do not constitute reimbursable nonresident tuition.  However, the student, a student with a disability who turned 21 during the 2008-2009 school year, had not obtained a high school diploma and was therefore entitled to continue her public education and receive a FAPE until the end of that school year (20 USC §1412, 34 CFR §300.102, Education Law §4402 and 8 NYCRR §200.1[zz]).  Additionally, the receipt of an IEP diploma in June 2008 did not terminate her entitlement.  Indeed, §100.9(e) of the Commissioner’s regulations requires that an IEP diploma issued to a student less than 21 years of age be accompanied by a written statement of assurance of the student’s continued eligibility to attend school.

In this case, the student’s mother chose to exercise this right and notified petitioner in August 2008 that she wanted the student’s education to continue the following school year.  Accordingly, petitioner commenced a CSE meeting and an IEP was proposed but rejected by the parents who unilaterally placed the student in an unapproved private program.  Based on the record before me, I find that petitioner was required to, and did offer educational services to the student during the 2008-2009 school year.

Respondent asserts that because the student was not educated at petitioner’s high school, petitioner cannot seek reimbursement from respondent. Contrary to respondent’s contentions, there is no requirement that for students with disabilities, nonresident tuition reimbursement of a receiving school district be limited to the cost of educational services provided at its own facilities (Education Law §2045, 8 NYCRR Part 174).  When a receiving school district educates nonresident students pursuant to Education Law §2040, it is obligated to comply with the Individuals with Disabilities Education Act (IDEA, 20 USC §1401 et. seq.) and Article 89 of the Education Law. Limiting the range of services available to nonresident students with disabilities could deny them a FAPE.

Respondent further contends that it would be improper for it to be ordered to reimburse petitioner for its settlement of a claim.  Petitioner’s CSE had the responsibility of providing the student a FAPE through her IEP.  The student’s parents claimed that the student was not offered a FAPE during the 2006-2007, 2007-2008 and 2008-2009 school years and unilaterally placed her in an unapproved school for her final school year.  While the parents availed themselves of the impartial hearing process for the purpose of seeking tuition reimbursement, they did not proceed to a hearing but rather settled the matter with petitioner.  Moreover, the student was placed in a private school that is not approved by the State Education Department to provide education to students with disabilities.  This placement was not offered or suggested by petitioner’s CSE and it appears that the student’s IEP was not amended after settlement to reflect the placement.  These factors indicate that the amount paid to the parents by petitioner constituted a settlement offered as a remedy for allegedly failing to provide a FAPE.  The settlement amount, which constituted partial tuition payment for an unapproved private school, is not subject to reimbursement through the IDEA or state aid (30 CFR §300.148 and Education Law §4405) and therefore it is not a reimbursable educational cost that petitioner can seek to reclaim from respondent.  Because there are no educational costs for services rendered by petitioner to the student for the 2008-2009 school year, respondent is not obligated to reimburse petitioner for either the nonresident tuition reimbursement rate of $53,192 or the resolution agreement amount of $27,500.

Finally, respondent argues that it is not required to reimburse petitioner for an impartial hearing settlement because it did not enter into a tuition reimbursement contract for the 2008-2009 school year.  In the absence of a written contractual agreement, tuition is to be established pursuant to Education Law §2045(1) and Part 174 of the Commissioner’s regulations, both of which require the tuition to reflect the actual cost of educating the children involved (Appeal of Bd. of Educ. of the Garrison UFSD, 43 Ed Dept Rep 355, Decision No. 15,017; Appeal of the Bd. of Educ. of the East Moriches UFSD, 41 id. 45, Decision No. 14,610; Matter of the Bd. of Educ. of Southampton UFSD, 20 id. 101, Decision No. 10,331).  However, I have already determined that petitioner incurred no educational costs in this matter.  Therefore, respondent is correct in asserting that without a contract between the parties specifically addressing settlement and other costs accrued by the receiving school district, respondent is not obligated to pay costs that fall outside the realm  of tuition amounts established pursuant to Education Law §2045(1) and Part 174 of the Commissioner’s regulations.

As to petitioner’s request for reimbursement of attorney’s fees, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Appeal of F.P., 46 Ed Dept Rep 134, Decision No. 15,465; Appeal of J.F. and D.F., 45 id. 241, Decision No. 15,310).  Accordingly, petitioner’s claim for reimbursement of its attorney’s fees incurred in the due process proceedings must be dismissed.

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

THE APPEAL IS DISMISSED.

END OF FILE.