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Decision No. 13,213

Appeal of PHILIP L. BURKE from action of the Board of Education of Penfield Central School District No. 1 regarding nursing services.

Decision No. 13,213

(July 8, 1994)

Harris, Beach & Wilcox, Esqs., attorneys for respondent, Alfred L. Streppa, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals the refusal of the Board of Education of Penfield Central School District No. 1 ("respondent") to provide full-time nursing services to a nonpublic school. The appeal must be dismissed.

Petitioner is the parent of three children who attend a nonpublic school located in respondent's district. Prior to the 1993-94 school year, respondent employed a full-time nurse to provide basic health services to children attending that nonpublic school. For the 1993-94 school year, respondent reduced the nursing position to part-time (.06). On March 22, 1994, in response to concerns that a nurse would only be present part-time, respondent agreed to hire a part-time (.04) health aide to ensure full-time coverage to the students at the nonpublic school for the 1994-95 school year. This appeal ensued.

Petitioner alleges that respondent is required under Education Law '912 to provide health services on an equivalent basis to public and nonpublic schools. Petitioner also alleges that since he was not served with respondent's answer in a timely manner, it should be disregarded.

Respondent raises a number of procedural defenses, including that the petition is premature; that petitioner shows no harm; that the petition amounts only to a request for an advisory opinion; and that petitioner lacks standing to challenge the provision of health services to other nonpublic schools. Respondent also contends that its provision of nursing services to public and nonpublic schools is equivalent. Respondent further objects to certain new material made part of petitioner's reply.

Before reaching the merits, I will address the procedural issues. I agree in part with respondent as to petitioner's reply. The purpose of a reply is to respond to procedural defenses or new material contained in an answer (8 NYCRR 275.3, 275.14). A reply may not be used to buttress allegations contained in the petition or add assertions or exhibits that should have been in the petition (Appeal of Bennardo, 33 Ed Dept Rep 178; Appeal of Whitaker, 33 id. 59; Appeal of Taber, et al., 32 id. 346). Respondent objects to material submitted by petitioner regarding incidents which allegedly occurred in December 1993 and February 1994. Since the appeal was filed in April 1994, those materials should have been included in the petition. Accordingly, I will not consider that new material included in petitioner's reply. However, I will consider the nonpubic school principal's affidavit in petitioner's reply because it properly responds to an affirmative defense raised by the school district.

Petitioner requests that I disregard respondent's answer, because respondent failed to serve it in a timely manner. The record indicates that respondent's answer was mailed to petitioner at an incorrect address. As petitioner was not prejudiced by the addressing error, however, I will accept respondent's answer (Appeal of Savastano, 32 Ed Dept Rep 326).

Respondent also contends that the petition is premature since it appears to challenge the adequacy of the part-time health aide hired for the 1994-95 school year and that school year has not begun. Respondent also claims that petitioner seeks an advisory opinion since in his request for relief, petitioner asks for a review of the adequacy of respondent's staffing arrangements. My review of the petition indicates, however, that petitioner is primarily concerned with the issue of adequate staffing at the nonpublic school, which is an ongoing controversy. Therefore, I do not agree that the appeal is premature. Moreover, while petitioner's request for relief is inartfully worded, I would not characterize it as a request for an advisory opinion. I decline, therefore, to dismiss the petition on that ground.

The appeal, however, must be dismissed on the merits. Education Law '912 provides in pertinent part:

The voters and/or trustees or board of education of every school district shall, upon request of the authorities of a school other than public, provide resident children who attend such school with any or all of the health and welfare services and facilities which are made available by such voters and/or trustees or board of education to or for children attending the public schools of the district.

Petitioner claims that the nonpublic school which his children attend is not being served on an equal basis with the public schools in respondent's district. However, the record indicates that given the enrollment of the school, it is receiving its adequate share of health services. While Education Law '912 requires equivalent service, it does not require the provision of full-time nursing services and I note that no legal requirement exists that requires a school to hire a full-time nurse. In addition, it appears that several of respondent's public schools with much greater enrollment have only one full-time nurse to serve a much larger student population. Therefore, I find that petitioner's children are receiving equivalent nursing services compared to the public school population.

While petitioner cites Cornelia v. BOE, CSD No. 1, Town of Greece, 29 NY2d 586, for the proposition that his children are entitled to nursing services "on the same basis, in the same manner and to the same extent" as services are made available to the public school, I find, for the reasons outlined above, that respondent has met its statutory requirements to supply equivalent health services to the student population of the nonpublic school.