On appeal from the New Jersey Department of Education, Docket No. 118-6/10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued Telephonically May 17, 2012
Before Judges Payne and Reisner.
Petitioner Northern Highlands Board of Education (Highlands) appeals from a final decision of the Commissioner of Education (Commissioner) dismissing two claims against respondent Saddle River Board of Education (Saddle River). We affirm in part and reverse in part.
This is a dispute between two school districts over reimbursement for the cost of a one-to-one school aide for a special needs student and a one-to-one English teacher for another student. Saddle River sends its students to Highlands for grades nine through twelve under a series of ten-year sending-receiving agreements that started in 1998. See N.J.S.A. 18A:38-8. In 2010, Highlands tried to back-bill Saddle River $98,000 for the cost of providing a special education student named T.F. with a one-to-one aide during the 2003-04, 2004-05, and 2005-06 school years. T.F. had graduated in 2006. Highlands also tried to back-bill Saddle River for the 2008-09 and 2009-10 school years with respect to another student, G.L., who required a one-to-one English teacher. The case was transmitted to the OAL, where it was decided on Saddle River's motion for summary disposition.
We begin by addressing the T.F. matter. In opposing the summary disposition motion, Highlands contended that Saddle River had reimbursed it for T.F.'s aide for the 2002-03 school year, but had then stopped making payment. Highlands contended that it did not discover the underpayment, or billing error, until 2009, and then promptly brought the situation to Saddle River's attention. Construing N.J.A.C. 6A:23A-17.1(f)(6), and N.J.A.C. 6A:3-1.3(i), the Administrative Law Judge (ALJ) found that Highlands had until ninety days after the end of the second year of the sending-receiving contract to file its claim, and therefore the 2010 claim for T.F. was untimely. On September 26, 2011, the Commissioner affirmed the ALJ's decision citing, N.J.A.C. 6A:3-1.3(i), which requires that any appeal to the Commissioner be filed within ninety days after receiving a final decision denying the petitioner's claim. In an October 31, 2011 decision denying reconsideration, the Commissioner confirmed that his decision was also based on N.J.A.C. 6A:23A-17.1(f)(6).*fn1
We first consider the two regulations on which the ALJ and the Commissioner relied. N.J.A.C. 6A:23A-17.1 addresses the method for determining the tuition rates to be charged by a receiving district to a sending district.
(f) The receiving district board of education and the sending district board of education shall establish by written contractual agreement a tentative tuition charge for budgetary purposes. Such tentative charge shall equal an amount not in excess of the receiving district board of education's "estimated cost per student" for the ensuing school year for the purpose or purposes for which tuition is being charged, multiplied by the "estimated average daily enrollment of students" expected to be received during the ensuing school year. Such written contract shall be on a form prepared by the Commissioner. [N.J.A.C. 6A:23A-17.1(f).]
Subsection (f)(7) governs the proper procedure to be followed where the Commissioner determines that the sending district has set a rate that was too low:
If the Commissioner later determines that the tentative charge established by written contractual agreement, except for a contractual agreement for a student enrolled in a special education class, was less than the actual cost per student during the school year multiplied by the actual average daily enrollment received, the receiving district board of education may charge the sending district board of education all or part of the amount owed by the sending district board of education, to be paid during the second school year following the school year for which the tentative charge was paid. Such adjustment for a contractual agreement for a student enrolled in a special education class shall be made no later than the end of the second school year following the contract year. The executive county superintendent of schools of the county in which the sending district board of education is located may approve the payment of the additional charge over another period, if the sending district board of education can demonstrate that payment during the second school year following the school year for which the tentative charge was paid would cause a hardship. [N.J.A.C. 6A:23A-17.1(f)(7).]
At oral argument of this appeal, Highlands' counsel clarified that, if Highlands' claim concerned an under-calculation of the tuition rate, its claim would be untimely under subsection (f)(7), because it was not asserted within two years after the school year in which the services were rendered. However, Highlands asserts that its claim does not concern the calculation of the tuition rate but rather concerns a billing error. It contends that either Highlands inadvertently failed to bill for, or Saddle River inadvertently failed to remit payment for, a portion of the tuition charge on which the two districts had already agreed. In support of that argument, it ...