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Decision No. 13,126

Appeal of DEBORAH A. GEORGE, on behalf of her son Nathain L. Williams, from action of the Board of Education of the City School District of the City of Dunkirk relating to medical attention.

Decision No. 13,126

(March 3, 1994)

John M. Kuzdale, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals respondent's alleged denial of proper medical attention for her son, Nathain. The appeal must be dismissed.

During the 1992-93 school year, Nathain was a student in respondent's middle school. On May 11, 1993 Nathain injured his hand at school. Petitioner alleges that Nathain went to the school nurse and asked her to call the emergency number in his file so that his uncle could take him to the hospital. According to petitioner, the nurse told Nathain that she did not have an emergency number in her file and refused to call his uncle. Petitioner claims that the emergency number was on file in the school's main office. Petitioner states that the nurse instead called petitioner's phone number and left a message on her answering machine even though Nathain told the nurse that his parents weren't home.

According to petitioner, the nurse gave Nathain an ice pack for his hand and ignored his complaints of severe pain. Petitioner alleges that at 3:00 p.m., at her request, Nathain's uncle picked him up at school. Petitioner further alleges that the uncle took Nathain to the emergency room where it was discovered that he had broken a bone in his hand.

Respondent contends that petitioner did not bring the alleged incident to the attention of the school's administration, the superintendent or the board of education. Therefore, respondent argues that the petition should be dismissed, since there has been no action or determination by respondent.

Although petitioner apparently seeks review of respondent board's action regarding the treatment of her son, the record indicates that she never sought or obtained any determination by the board of education regarding the incident. Since petitioner appears to challenge the board's action, but never requested its review prior to commencing this appeal, the appeal is premature and must be dismissed (Appeal of Hickey, 32 Ed Dept Rep 12).

The appeal must also be dismissed for failure to comply with 8 NYCRR 275.10, which provides that a petition:

shall contain a clear and concise statement of the petitioner's claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled. Such statement must be sufficiently clear to advise the respondent of the nature of petitioner's claim and of the specific act or acts complained of.

The petition does not contain a demand for any particular relief. Thus, I am unable to determine with specificity either the nature of the relief sought by petitioner or the basis for petitioner's claim that she is entitled to any relief.

Although this appeal must be dismissed on procedural grounds, I am compelled to comment on the manner in which respondent has answered the petition. With the exception of its prematurity defense and its admission that an incident occurred on May 11, 1993, respondent's answer merely contains a statement that respondent lacks knowledge or information sufficient to form a belief as to the truthfulness of the allegations in the petition. This denial of knowledge or information appears to be somewhat disingenuous, since the incident involved one of its employees. Respondent is advised to make reasonable efforts in the future to learn the facts necessary to a meaningful response to such allegations.

Finally, in light of petitioner's claims, respondent is further directed to review its policy concerning the notification of persons in parental relation in the event of an emergency. In this regard, respondent should consult Education Law '3212-a.

THE APPEAL IS DISMISSED.

END OF FILE