
    In the Matter of L., a Handicapped Child, Appellant, v New York State Department of Education et al., Respondents. In the Matter of K., a Handicapped Child, Respondent, v City of New York, Appellant.
    Argued February 19, 1976;
    decided April 8, 1976
    
      
      Graham M. Scheinman for appellant in the first above-entitled proceeding.
    I. The Constitutions of the United States and of the State of New York require that all handicapped children be provided with a free education. Neither the Statute of Limitations nor laches may be invoked to defeat this right in a proceeding pursuant to section 232 of the Family Court Act. (Matter of Wiltwyck School for Boys v Hill, 11 NY2d 182; Brown v Board of Educ., 347 US 483; Matter of Kirschner, 74 Misc 2d 20; Matter of Arthur K, 74 Misc 2d 872; Matter of Downey, 72 Misc 2d 772; Matter of Apple, 73 Misc 2d 553; Matter of David H, 72 Misc 2d 59; Shapiro v Thompson, 394 US 618; Royster Guano Co. v Virginia, 253 US 412.) II. Where no time limit has been established by statute or rule for proceedings under section 232 of the Family Court Act, the court may not judicially impose a Statute of Limitations. (Alvado v General Motors Corp., 194 F Supp 314; Matter of New York State Labor Relations Bd. v Wyckoff Hgts. Hosp., 59 Misc 2d 284; Matter of Arthur K, 74 Misc 2d 872; Matter of Anthony W, 74 Misc 2d 380; Matter of Leitner, 40 AD2d 38; Schreier v Cummings, 250 App Div 808; Seligson v Weiss, 222 App Div 634; Locust Club of Rochester v City of Rochester, 48 Misc 2d 763.) III. Section 232 of the Family Court Act does not require that a parent provide, in whole or in part, tuition costs for his handicapped child. The application of a means test, whether by statute or decision, is unconstitutional for it deprives a child of a free and equal public education. (Matter of Borland, 72 Misc 2d 766; Matter of Kirschner, 74 Misc 2d 20; Diana L. v State of New York, 70 Misc 2d 660; Matter of Claire, 44 AD2d 407.)
    
      
      W. Bernard Richland, Corporation Counsel (Ellen Kramer Sawyer and L. Kevin Sheridan of counsel), for City of New York, respondent in the first above-entitled proceeding.
    I. Sections 232 and 234 of the Family Court Act authorize court orders for prospective expenses only since the court order must be based on a judicial determination, prior to or at least contemporaneously with placement, that the child is handicapped and requires special educational services. Therefore, the Family Court orders properly denied reimbursement to the parent for the tuition costs he had paid for the two prior school years. (Matter of Wiltwyck School for Boys v Hill, 11 NY2d 182; Matter of Claire, 44 AD2d 407; Diana L. v State of New York, 70 Misc 2d 660; Matter of Vlado, 45 AD2d 1016.) II. Petitioner voluntarily paid the tuition costs for the two prior school years without expectation of reimbursement. He cannot now prevail in his untimely claim against the city for such reimbursement. (Maule v Kaufman, 41 AD2d 729, 33 NY2d 58; Swanton v Curley, 273 NY 325; Smith v Smith, 255 App Div 652; Silkworth v Silkworth, 255 App Div 226.)
    
      W. Bernard Richland, Corporation Counsel (Ellen Kramer Sawyer and L. Kevin Sheridan of counsel), for appellant in the second above-entitled proceeding.
    I. Sections 232 and 234 of the Family Court Act authorize court orders for prospective expenses only since the court order must be based on a judicial determination, prior to or at least contemporaneously with placement, that the child is handicapped and requires special educational services. Therefore, the Family Court orders improperly granted reimbursement to the parent for the tuition costs he had paid for the two prior school years. (Matter of Wiltwyck School for Boys v Hill, 11 NY2d 182; Matter of L. v New York State Dept. of Educ., 47 AD2d 604; Matter of Claire, 44 AD2d 407; Matter of Leitner, 40 AD2d 38; Diana L. v State of New York, 70 Misc 2d 660; Matter of Vlado, 45 AD2d 1016.) II. Petitioner voluntarily paid the tuition costs for the two prior school years without expectation of reimbursement. He cannot now prevail in his untimely claim against the city for such reimbursement. (Maule v Kaufman, 41 AD2d 729, 33 NY2d 58; Swanton v Curley, 273 NY 325; Smith v Smith, 255 App Div 652; Silkworth v Silkworth, 255 App Div 226.)
    
      Weaver H. Gaines, Jr., and Bernard E. Kury for respondent in the second above-entitled proceeding.
    I. Need for special education is established upon proof of a child’s handicap and the lack of a suitable public facility. Because the child was handicapped and could not be educated adequately in a public facility, the Family Court properly ordered reimbursement for tuition costs paid by respondent. (Matter of Michael B., 73 Misc 2d 339; Matter of Richard C., 75 Misc 2d 517; Matter of Logel, 78 Misc 2d 394; Matter of Claire, 44 AD2d 407, 35 NY2d 706; Matter of L. v New York State Dept, of Educ., 47 AD2d 604; Matter of Robert B. v State of New York, 80 Misc 2d 647; Matter of Arthur E., 74 Misc 2d 872.) II. Respondent’s payment of tuition costs did not waive the statutory and constitutional right to a free education for his handicapped child. (Miranda v Arizona, 384 US 436; Maule v Kaufman, 33 NY2d 58; Matter of Wiltwyck School For Boys v Hill, 11 NY2d 182; Matter of Downey, 72 Misc 2d 772; Matter of Kirschner, 74 Misc 2d 20; Matter of David H., 72 Misc 2d 59; Matter of Charilyn N., 46 AD2d 65.)
    
      Charles Schinitsky, William E. Hellerstein and Michael Gage for The Juvenile Rights Division of The Legal Aid Society of New York City, amicus curiae.
    
    I. Family Court orders directing payment of special educational costs for a handicapped child for prior school years are consistent with the New York State Constitution. (Matter of Vlado, 45 AD2d 1016; Matter of David H., 72 Misc 2d 59.) II. Proper construction of section 232 of the Family Court Act permits the issuance of an order covering special educational expenses for prior school years. (Matter of Vlado, 45 AD2d 1016; Matter of Arthur K., 74 Misc 2d 872; Matter of David H., 72 Misc 2d 59; Beal v Finch, 11 NY 128; Matter of Downey, 72 Misc 2d 772; People v Bell, 306 NY 110.)
   Jasen, J.

The issue presented by these appeals is whether parents who have paid the tuition for the special education of their handicapped children are required to present their claim for reimbursement to the locality chargeable for these expenses within a specific period of time.

In Matter of L., the petitioner’s child suffers from severe emotional problems and from a speech defect. These conditions require. a form of specialized education. There are no facilities for this treatment in the public school system of New York City wherein the child resides. In order to obtain the necessary treatment, L., in 1971, was placed in a special, private school. The school charges an annual tuition of $5,200. L.’s father paid $3,200 per year, with State assistance under section 4407 of the Education Law accounting for the $2,000 balance. In this proceeding, commenced in November, 1973, the father seeks to compel the City of New York to reimburse him for the tuition payments he made on behalf of his son for the 1971-1972, 1972-1973 and 1973-1974 school years, a total of $9,900. The Family Court, New York County, granted the request as to the 1973-1974 school year, but denied reimbursement for the two prior years on the ground that application had not been timely made. The Appellate Division, First Department, without opinion, unanimously affirmed the orders of the Family Court. Petitioner has taken a direct appeal to our court, asserting a constitutional deprivation. (CPLR 5601, subd [b].)

In Matter of K., the child suffers from a functional brain disorder as well as from a personality disorder. According to her doctor, the child needs a "highly individual approach to her education” and "an intensely therapeutic human milieu”. The facilities necessary for such treatment are also not available in the public school system of New York City, and, accordingly, the child was placed in the same private school attended by L. The father of the child, in June, 1974, commenced a proceeding to obtain reimbursement for the tuition payments he made on behalf of his child for the 1971-1972 and 1972-1973 school years. As in Matter of L., the annual payment by the parent was in the amount of $3,200, accumulating to a two-year total of $6,400. The Family Court, Kings County, granted the relief requested, holding that there was no requirement that relief be sought within a specified time period. The Appellate Division, Second Department, affirmed, without opinion. We granted the city leave to appeal.

The Constitution of our State guarantees to all children, handicapped or not, the right to a free education. (NY Const, art XI, § 1; Matter of Levy, 38 NY2d 653.) In the usual case, the State’s obligation is fulfilled where a child attends a public school maintained by the school district in which the child resides without payment of tuition. (Education Law, § 3202, subd 1.) A different situation obtains where the child suffers from a disabling condition and the local school system does not have the facilities necessary to meet the child’s specialized educational needs. This situation is addressed by section 232 of the Family Court Act which provides that the Family Court has jurisdiction over handicapped children. Where a child within the court’s jurisdiction appears to be in need of special educational training, the court may make an order providing for the education of the child in a suitable private institution. The expenses incurred as a result of the private education, when approved by the court and duly audited, are a charge on the county in which the child is domiciled. In the counties contained within the City of New York, the costs are to be borne by the city. If the State Commissioner of Education approves the Family Court order, the State will reimburse the locality for one half of the expenses. (Education Law, § 4403.) The State Department of Education may also, if it finds that a handicapped child is not receiving instruction due to the lack of public facilities for instruction of children with unusual handicaps, contract with a private educational facility for the instruction of the child, provided that the department does not expend in excess of $2,000 per year for each pupil. (Education Law, § 4407.)

There is no doubt that the children involved in this case were entitled to a tuition-free education. There is also no dispute that these children are handicapped and that, at the time the children first entered the private school, the New York City school system did not have the special facilities required for their education. The sole issue is whether the parents of these children, having partially paid the school tuition, were required to make a prompt application for reimbursement. We conclude that the parents were obligated to seek reimbursement within the school year for which the tuition was paid.

Section 232 of the Family Court Act is designed to provide an orderly mechanism for meeting the immediate educational needs of handicapped children. Under the section, the court must continually review the condition of the children, as well as the state of available public facilities. It is obvious that the condition of a handicapped child may change substantially within the course of a single school year. After the commencement of his private instruction, the condition may improve to the point that the child is capable of attending public school, either in the regular course of instruction or as part of a special program. Alternatively, the changed condition might be more appropriately treated in a different private school, with a resulting change in the amount of tuition charged. It is equally possible that additional facilities may have been added to the public school system. The school district might find, for example, that the number of children with a particular handicap has so increased that it is more economic to construct and maintain public facilities than it is to continue to pay tuition to a private school. The school district might also possess funds, not previously available, that can be applied to the cost of hiring teachers with specialized training and to the expense of obtaining additional equipment for use in a regular public school. In sum, the Family Court, in order to carry out its obligations under section 232, must review each case on an annual basis and determine whether its previous order should be amended or modified.

The proceeding for tuition reimbursement is the procedural vehicle which initiates the annual review. By not presenting claims for tuition reimbursement within the current school year, parents deprive the court of the opportunity to make the periodic review required by statute. To honor a late request is to reimburse parents for expenses that may not be properly chargeable to the locality. If new facilities had been added during the course of private instruction, the child, to obtain a free education, would have to transfer to the public school system. The parent who keeps his child in the private institution thereafter does so at his own expense. Similarly, if the child has developed so that use of public instructional facilities is now appropriate, the parent would have to bear the cost of continuing the child’s private course of instruction. These determinations must, by their nature, be made within the school year for which tuition is paid. Later consideration would preclude an opportunity to make necessary changes.

The dissenters in our court contend that, under this ratio- . nale, an application might be timely if made on the last day of the school year. (At p 442.) We do not agree. Although it is not our function to set an arbitrary deadline within which application must be made, and we decline to do so, we believe that the statute requires that a claim be filed promptly after payment of tuition while sufficient time remains in the school year for any changes in placement to be effectuated. Since the review is necessary to ensure that the child is appropriately receiving private instruction at public expense, the review proceeding initiated by the tuition claim must occur while there is time to prevent further unnecessary expenditure of public funds.

Even aside from the requirement of periodic review implicit in section 232, it is clear that the Legislature intended to provide an orderly procedure for the apportionment and payment of tuition expenses. Without a limitation on the time to make application for tuition reimbursement, the local governments and school districts face budgetary chaos. If parents could cumulate claims dating back several years, the locality would not know when such claims would be presented, if ever, and would not be able to budget for them in an adequate manner.

A regulation promulgated by the State Department of Education, contrary to the implication of the dissent, supports our view that claims must be promptly made. As to students not previously receiving State assistance or who are not enrolled in approved institutions, the State will not approve for reimbursement to the locality any order for special educational services unless a recommendation for such services is received "on or before April 15 in the school year for which special educational services are sought.” (8 NYCRR 200.8 [b].) Moreover, in any case, the locality must submit its own claim for State contributions "not later than 12 months from the date on which a certificate of approval for State aid was issued, or 12 months from the last day of the school year within which special educational services were provided, whichever is later.” (8 NYCRR 200.8 [c].) Since it is the claim of the parents for reimbursement that triggers the payment for which the locality, in turn, will be reimbursed by the State, the locality cannot receive its statutory reimbursement from the State unless the claim of the parents is promptly filed. The regulation does not, in any of its subdivisions, authorize, much less require, localities to pay claims arising from prior years.

We conclude that the claims of the parent of L. and the parent of K. for the school years 1971-1972 and 1972-1973 were properly denied since the claims were not timely presented for payment. Accordingly, in Matter of L., the order of the Appellate Division should be affirmed. In Matter of K., the order of the Appellate Division should be reversed.

Jones, J. (dissenting).

I would grant judgment to the petitioning parents in both of these cases.

The claims of the parents of these handicapped children are being rejected solely on the ground that they were not timely presented. The city concedes that, had the same claims been presented before the close of the school year for which educational aid was sought, they would have been paid in full and without cavil. The only predicate for the city’s position here would appear to be slavish, mechanical worship of a bureaucratic accounting period, and that without identifiable legal authority.

No one disputes that the city has legal responsibility for providing the direct cost of education of all handicapped children (Matter of Levy, 38 NY2d 653, 658). This entitlement is fundamental and of long standing, and is confirmed by the express provisions of the Family Court Act (§ 232, subd [a], par [1]; § 234, subd [a]). (Cf., also, Education Law, § 4407.) Unlike welfare benefits, the right to a free tuition is not dependent on meeting any economic means test; it exists irrespective of the financial competence of the parents (Matter of Levy, supra). Nor is this principle controverted by the city.

I find no statutory provision or administrative regulation, however, which supports the assertion that application for the educational aid must be made at any specified time or more pointedly that it must be made before the close of the school year. Nor does the city invite our attention to any such provision or regulation.

The arbitrariness of the city’s position becomes apparent on examination of the arguments it advances in support of its position. First, it says that opportunity to conduct a current evaluation of the student’s need and then to make a determination as to the availability of suitable public educational facilities will be lost unless application for assistance is made within the school year. Two answers are at hand. In the first place this would be equally true where the application is made with respect to any particular school year on the last day of that year. Yet the city concedes that such an application would not be rejected for untimeliness. Second, and more significantly, our courts and administrative agencies are every day determining a multitude of substantial rights after the fact. At the time of the determination evidence is received as to the circumstances and conditions at the earlier critical date. Problems may arise, to be sure, but conceptually this contention is wholly hollow.

Then the city argues that the parent is not entitled to recover for payments voluntarily made without expectation of reimbursement. This principle, applicable in appropriate instances in determining the private rights of parties to matrimonial controversies, has no application here. It cannot realistically be said that the principle has any relevance to this situation. Free education for handicapped children has been mandated as the public policy of this State. There is nothing in Constitution or statute to warrant any differentiation between direct payment and reimbursement. To the extent that the right finds its source in constitutional provision any waiver is not lightly to be implied. There is nothing in the records before us from which even an inference of waiver may be drawn. And again, what of the applicant who files his claim for a full year’s reimbursement on the last day of the school year?

The shallowness of the city’s position becomes even more transparent when the actual facts in these cases are reviewed. In L. the application was made in mid-1973-1974 for each of the years 1971-1972, 1972-1973 and 1973-1974 and was granted as to 1973-1974 (the current year) and denied as to past years 1971-1972 and 1972-1973. For all three years the State had approved tuition aid in the annual amount of $2,000 under section 4407 of the Education Law.

The record includes evidence of the State’s approval for L.’s attendance at Reece School for each of the three school years. The record also contains evidence that with respect to 1973-1974 the city approved L.’s attendance at a private school on the ground that the city’s public school system was "unable at this time to provide an appropriate educational facility” for L. Corresponding city documentation for the two prior years was denied on the ground of the alleged late filing of the claims. As stated earlier, however, the city concedes that the claims are substantively meritorious.

In K. the application was made in July, 1974 for reimbursement for the two school years 1971-1972 and 1972-1973. Here, too, the State had approved tuition under section 4407 for each of these years, and had also approved K.’s attendance during such years at Reece School. There is also a statement of the city board of education with respect to the year 1972-1973 that its public school system "was not able to offer an adequate educational facility” for K. And again the city raises no question as to the merits of the application.

It appears that when these proceedings were instituted if the Family Court had directed the city to reimburse the petitioning parents with respect to past years the city could not then have obtained reimbursement from the State of the State’s 50% share. On November 21, 1974, however, the Board of Regents adopted a new section 200.8 of the Regulations of the Commissioner of Education (8 NYCRR 200.8). The city agrees that under the application of this new section it would now recover full 50% reimbursement from the State for any payments it might be directed to make to the parents of L. and K. in the present proceedings.

Should there prove to be any volume of claims for reimbursement for prior years, I can recognize that practical problems might arise, budgeting difficulties might be encountered if the only cutoff were the six-year Statute of Limitations under CPLR 213 (subd 1) (the applicable Statute of Limitations in my opinion), supplemented in perhaps a few instances by the inability, due to the passage of time, of a claimant parent to furnish sufficient proof. If such problems do indeed rise to the level of administrative or economic significance, it is open to the city, in my view, after appropriate notice to adopt a suitable regulation (there now is none) clearly setting forth the applicable limitation of time. This appears to be precisely what the State Education Department has done (8 NYCRR 200.8). The promulgation of such a regulation would afford an opportunity for the city and interested parents and taxpayers publicly to address and resolve the policy and practice issues involved. Thereafter, due notice having been given, parents eligible to the educational entitlement for their handicapped children could be guided accordingly.

The court today, however, is lending judicial sanction to what is in substance the retroactive adoption of an indefinite deadline for which no prior notice was given and for which there is no authority in statute or regulation. Even the conceded current financial difficulties of the City of New York cannot justify the result which the majority announces.

Chief Judge Breitel and Judges Gabrielli, Wachtler and Fuchsberg concur with Judge Jasen; Judge Jones dissents and votes to reverse in a separate opinion in which Judge Cooke concurs.

In Matter of L.: Order affirmed, without costs.

Chief Judge Breitel and Judges Gabrielli, Wachtler and Fuchsberg concur with Judge Jasen; Judge Jones dissents and votes to affirm in a separate opinion in which Judge Cooke concurs.

In Matter of K.: Order reversed, without costs, and the petitions dismissed. 
      
       The State apparently views this regulation somewhat differently. However, the city, in its brief, disputes the State’s interpretation and questions the lawful authority of the State to require it to make retroactive payments. In our view, the regulation does not require the city to make these payments and since the State has not imposed such requirement, we express no opinion as to its authority to do so.
     
      
      . The majority adopts a position even more stringent than does the city, i.e., that the claim for reimbursement must be made promptly within the particular school year.
     
      
      . Educational aid for handicapped children appears to operate with respect to each school year as follows. The State pays $2,000 under section 4407 of the Education Law; the balance is paid in the first instance by the city which is then reimbursed to the extent of 50% of such balance by the State (Education Law, § 4403).
     