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Decision No. 16,258

Appeal of a STUDENT WITH A DISABILITY, by her parent, from action of the Board of Education of the Westbury Union Free School District regarding nursing services.

Decision No. 16,258

(July 18, 2011)

Jaspan Schlesinger LLP, attorneys for respondent, Michael D. Raniere, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the decision of the director of special education made on behalf of the Board of Education of the Westbury Union Free School District (“respondent”) to deny her request to provide additional nursing services to a non-public school for her daughter.  The appeal must be dismissed.

Petitioner’s daughter has a respiratory condition which requires that she receive accommodations under Section 504 of the Rehabilitation Act, 29 U.S.C. §794 (“Section 504”).  Her Section 504 plan, which was prepared by Manhasset Union Free School District, her district of residence, allows her access to school medical personnel throughout the school day including field trips and extracurricular activities, and states that an RN or LPN must attend field trips if a parent doesn’t.  During the 2010-2011 school year she attended Holy Child Academy, a nonpublic school located within respondent’s district.  Previously, petitioner’s daughter attended public school in the Manhasset Union Free School District.

Respondent provides Holy Child Academy with a nurse from 9:00 a.m. to 3:00 p.m. Monday through Friday.  By letter dated October 29, 2010 to respondent’s director of special education, the principal of Holy Child Academy requested a nurse at the school for its entire school day, which is 8:00 a.m. to 4:00 p.m. on Monday through Thursday and 8:00 a.m. to 3:00 p.m. on Friday.  This request was made in order to accommodate petitioner’s daughter.  In a December 14, 2010 letter, respondent’s director of special education stated that it “provides ample nursing services (equivalent to 2 full-days[1]) to the Holy Child School” and that it is not responsible for implementing petitioner’s daughter’s Section 504 plan.  This appeal ensued.

Petitioner contends that, in violation of Education Law §912 and her daughter’s Section 504 plan, respondent failed to provide her daughter with nursing services equivalent to the services she was receiving when she attended public school in the Manhasset Union Free School District.  Petitioner seeks to have respondent provide two additional hours of nursing services Monday through Thursday and one additional hour on Friday.  Petitioner also seeks reimbursement for providing additional nursing services, at her own expense, at Holy Child Academy since the beginning of the 2010-2011 school year.

Respondent asserts that the nursing services provided to Holy Child Academy are equivalent to those provided to district schools.  Respondent also asserts that I do not have jurisdiction over petitioner’s Section 504 claims and that petitioner failed to join Manhasset Union Free School District as a necessary party.

The appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Petitioner seeks to have additional nursing services provided to her daughter during the 2010-2011 school year.  Since the school year has ended, the appeal is moot.

In addition, the appeal must be dismissed for failure to join Manhasset Union Free School District as a necessary party.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Education Law §912 states, in part:

Where children residing in one school district attend a school other than public located in another school district, the school authorities of the district of residence shall contract with the school authorities of the district where such nonpublic school is located, for the provision of such health and welfare services and facilities to such children by the school district where such nonpublic school is located, for a consideration to be agreed upon between the school authorities of such districts, subject to the approval of the qualified voters of the district of residence when required under the provision of this chapter.

This section requires a school district whose resident student attends a nonpublic school in another district to pay the expense of providing the student with health and welfare services.  A finding in this matter against respondent would adversely affect petitioner’s district of residence, Manhasset Union Free School District, because it is required to pay the expense of providing health and welfare services to petitioner’s daughter and, thus, is a necessary party (seeAppeal of Board of Education of Greenburgh Central School District No.7, 33 Ed Dept Rep 81, Decision No. 12,983).

To the extent petitioner seeks an order enforcing her daughter’s Section 504 plan, such claim must be dismissed on jurisdictional grounds.  Respondent is correct in its assertion that enforcement of Section 504 of the Rehabilitation Act of 1973 is within the jurisdiction of the federal courts, the U.S. Department of Justice and the U.S. Department of Education and may not be obtained in an appeal brought pursuant to Education Law §310 (Appeal of a Student with a Disability, 48 Ed Dept Rep 108, Decision No. 15,806; Appeal of a Student Suspected of Having a Disability, 40 id. 75, Decision No. 14,425; Appeal of a Student with a Disability, 39 id. 752, Decision No. 14,369).

Finally, petitioner’s request for reimbursement of expenditures incurred for nursing services must also be dismissed on jurisdictional grounds.  The Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Appeal of S.B., 48 id. 332, Decision No. 15,875).

Even if the appeal were not dismissed on procedural grounds, the claims brought pursuant to Education Law §912 would be dismissed on the merits.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).  Petitioner seeks to have respondent provide nursing services to her daughter for the entire school day including extracurricular activities and field trips but is unable to establish that respondent has failed to comply with Education Law §912.  In accordance with this section, respondent is obligated to provide petitioner with health and welfare services and facilities, including those of a nurse, in a manner equivalent to those that would concededly be available to its public school students (Richard K. v. Petrone, 31 AD3d 181).

Respondent states that it has four elementary schools in its district which have enrollments of 498, 501, 640 and 793 students.  Each of these schools has a full-time nurse.  Based on the Holy Child Academy’s enrollment of 225 students, which is less than half of respondent’s smallest elementary school, it determined that providing Holy Child Academy with a nurse one and one-half days per week[2] was equivalent to the services provided to its public school students.

There is no requirement that a school district staff each of its schools with a full-time nurse (Education Law §902(2)(b); Appeal of W.T.B., 44 Ed Dept Rep 152, Decision No. 15,129; Appeal of Burke, 34 id. 3, Decision No. 13,213).  Therefore, Education Law §912 does not require a board of education to staff every non-public school, regardless of size, with a full-time nurse (Appeal of W.T.B., 44 Ed Dept Rep 152, Decision No. 15,129).  Thus, I find that it was reasonable for respondent to base its decision on the size of the student body at each of its public schools and their nursing staff, resulting in a determination that Holy Child Academy receive a nurse one and one-half days per week.  Additionally, petitioner has failed to establish that her daughter does not receive services equivalent to respondent’s public school students for field trips and extracurricular activities.

THE APPEAL IS DISMISSED.

END OF FILE

[1] Respondent’s answer states that it provides nursing services only one and one-half days per week to Holy Child Academy.  Whether the actual amount provided is one and one-half or two days per week, petitioner seeks, at issue in this appeal, nine additional hours of coverage each week.

[2] As described in footnote 1, there is some discrepancy in the record as to whether respondent is providing nursing services for one and one-half or two days per week.