Decision No. 13,286

(November 3, 1994)

Ellen S. Ross, Esq., attorney for petitioners

Wood, Holtzworth & Seward, attorneys for respondent, David R. Seward, Esq., of counsel

SOBOL, Commissioner.--Petitioners appeal the refusal of the Mayfield Central School District and its superintendent, William Gokey, to provide home tutoring for their children. The appeal must be dismissed.

Petitioners' two daughters were elementary school students in respondent district during the 1993-1994 school year. On October 6, 1993, one daughter was found to have an active infestation of head lice and was excluded from school until she was readmitted on October 8. The school nurse provided Mrs. K. with detailed written instructions for the recommended treatment of the condition. On October 12, both girls were again found to be suffering from lice and were excluded from school. The girls were re-examined by the school nurse on October 18, October 20 and October 25, before they were readmitted on October 28. Again on November 16, 1993, both girls were found to have lice and were excluded from school. They were examined on November 17 and November 22; one daughter was readmitted on December 14, 1993 and the other on December 22.

By letter dated October 21, 1993, the elementary school principal offered petitioners a choice either to have their daughters' work sent home or to have home tutoring. The record does not indicate that petitioners responded to this offer. However, on November 18, 1993, petitioners' attorney wrote to the elementary school principal and requested that home tutoring be commenced as soon as possible. On December 8, 1993, Superintendent Gokey wrote to the Fulton County Department of Social Services and indicated that the school district was under no obligation to provide home tutoring. This appeal was commenced shortly thereafter.

Petitioners appear to contend that their daughters were wrongly refused readmission on several occasions, but the record clearly indicates that their daughters were examined by the school nurse on the occasions when they were presented for readmission. I am satisfied that the school nurse's observations were accurate.

The affidavit of the school nurse indicates that an infestation of head lice is a treatable condition with the use of a recommended shampoo followed by careful combing of the hair and removal of nits with a special fine tooth comb readily available in drug stores, followed by removal of any remaining nits by use of the fingers. In the judgment of the school nurse, petitioners did not follow the recommended course of treatment; if they had, their daughters could have been readmitted to school the day after they were sent home with head lice. Indeed, the school nurse indicates that Mrs. K. told her that she used a type of shampoo normally used on animals rather than the shampoo recommended for human beings.

Respondent contends that it is under no obligation to provide home tutoring because petitioners did not follow a recommended course of treatment, which contributed to and indeed caused their daughters' prolonged absence from school. It has been held that Education Law '1709(24) provides authority for a board of education to provide temporary homebound instruction for students suffering a short-term physical disability (Appeal of Anthony M. and D. M., 30 Ed Dept Rep 269). Under normal circumstances, a school district would be expected to provide home tutoring upon the occurrence of a relatively short-term disability, as respondent initially offered to do. However, under the unique circumstances of this particular case, I must consider the actions of petitioners. Petitioners' daughters missed approximately one and one-half months of school during the first semester of the 1993-1994 school year because of a condition which normally could be alleviated in a day or two. Based upon the affidavit of the elementary school nurse and the examination report of the high school nurse, I must conclude that petitioners contributed to this excessive absence and in doing so relieved the school district of any obligation it might otherwise have had.

THE APPEAL IS DISMISSED.

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