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Decision No. 15,129

Appeal of W.T.B. and M.B., on behalf of their son M.B., from action of the Assistant Superintendent for Pupil Personnel Services and the Board of Education of the Arlington Central School District regarding nursing services.

Decision No. 15,129

(November 5, 2004)


Raymond G. Kuntz, P.C., attorney for respondents


MILLS, Commissioner.--Petitioners challenge the decision of the Assistant Superintendent for Pupil Personnel Services (“assistant superintendent”) on behalf of the Board of Education of the Arlington Central School District (“the board”) to deny a request for nursing services. The appeal must be dismissed.

Petitioners’ son has type 1 diabetes and attends the St. Martin de Porres School (“St. Martin”), a nonpublic school located within the Arlington Central School District. The board provides St. Martin with a health aide from 9:30 a.m. to 11:15 a.m. and a registered nurse from 12:00 p.m. to 3:15 p.m.

By letter dated May 6, 2003 to the assistant superintendent, the principal of St. Martin requested that the district provide St. Martin with a full-time nurse, citing the health needs of three diabetic children. By letter dated May 22, 2003, the assistant superintendent denied the request. This appeal ensued.

Petitioners contend that respondents have failed to provide their son with nursing services that are equivalent to the services they provide in district schools, as required by Education Law §912. Among other things, petitioners note that respondents provide at least one full-time nurse to every public school in the district and argue that respondents are required to provide a full-time nurse at St. Martin. Petitioners also claim that respondents have failed to arrange for “appropriate” health care coverage for St. Martin students at “off site school activit[ies],” as they do for public school students.

Petitioners also contend that respondents’ refusal to provide a full-time nurse is unlawful because it forces the health aide, who is not a registered professional nurse, to provide services that are required to be performed by a nurse under the Nurse Practice Act (Education Law §6900 et seq.). Petitioners request that I order respondents to provide “equitable access to health services” and monitor respondents’ performance for three years. Petitioners also request that I subpoena St. Martin’s student health records to substantiate their claim that the health aide improperly delivers health care without supervision.

Respondents contend that the services provided at St. Martin are equivalent to those provided at district schools because they are based on the same nurse-to-student ratio.

Preliminarily, I must deny petitioners’ request to subpoena respondents’ student health records because an appeal to the Commissioner under Education Law §310 is appellate in nature and does not provide for discovery or investigations (Appeal of Krantz, 38 Ed Dept Rep 485, Decision No. 14,077; Appeal of Schonfeld, 38 id. 306, Decision No. 14,040).

Education Law §902(2)(b) provides that any board of education “may employ one or more” nurses.1 In addition, 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.

This section obligates a school district to provide its resident children who attend nonpublic schools with certain services, including those of a nurse, equivalent to those provided to resident children who attend public school (see, Cornelia v. Bd. of Educ. of Cent. School Dist. No. 1, Town of Greece, 36 AD2d 576, aff’d 29 NY2d 586; Appeal of Burke, 34 Ed Dept Rep 3, Decision No. 13,213).

In an appeal to the Commissioner, petitioners bear the burden of establishing all of the facts upon which they seek relief (8 NYCRR §275.10; Appeal of Laurie, 42 Ed Dept Rep 313, Decision No. 14,867; Appeal of Boiko, 40 id. 409, Decision No. 14,513; Appeal of Taylor, 39 id. 368, Decision No. 14,261) and to demonstrate a clear legal right to the relief requested (Appeal of Boiko, supra; Appeal of Taylor, supra).

I find that petitioners have not established that respondents failed to comply with Education Law §912. Respondents explain that they determine the level of nursing staff assigned to each public school based on the number of students in a particular building and use the same criteria for nonpublic schools. To substantiate this contention, respondents submit a chart listing the student population and corresponding nursing staff levels at each public and nonpublic school in the district. This chart reflects that every public school in respondents’ district is staffed with at least one full-time nurse, while three of the four private schools are staffed with half-time nurses. However, the chart further reflects that the three private schools have smaller student populations than the public schools. St. Martin, the smallest of the nonpublic schools, has an enrollment of 275, compared to 395 at Travers Road Primary, the smallest public school. The remainder of the public schools staffed with full-time nurses are significantly larger than St. Martin, with populations ranging from 472 to 847.

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 Burke, supra). Therefore, Education Law §912 cannot be read to require a board of education to staff every nonpublic school, regardless of size, with a full-time nurse. Accordingly, there is nothing that prohibits respondents from basing their nursing staff decisions on the size of the student population at each facility (Appeal of Burke, supra). Based on the relatively small student population at St. Martin, I find that respondents’ provision of a half-time nurse supplemented by a part-time health aide is equivalent to the nursing services provided to public school students. To the extent that St. Martin wishes to provide its students with a higher level of service, it is free to hire additional nursing staff to supplement the services provided by respondents.

Similarly, with respect to off-site activities, petitioners have failed to establish a lack of comparability of available services. Although petitioners complain that respondents have not provided nursing staff to accompany their child on field trips, petitioners have failed to establish that respondents provide such services to its public school students. Nor have they established that they have made a specific request that was denied.

I also find no merit to petitioners’ claim that respondents’ refusal to provide a full-time nurse is unlawful because it forces the health aide to perform nursing services unsupervised, in violation of the Nurse Practice Act. First, petitioners have failed to establish that the health aide has acted improperly and, as set forth above, their allegations cannot be investigated in an appeal pursuant to Education Law §310. Contrary to petitioners’ unsubstantiated allegations, respondents maintain that the health aide is supervised by a registered nurse. Moreover, to the extent that St. Martin feels that the health aide requires additional supervision, it is free to supplement the nursing services provided by respondents.

In sum, while I can understand petitioners’ concern over their son’s health, I do not find respondents’ actions improper in any respect.




1 Effective September 1, 2004, this section was amended to require that any nurse so employed be a “registered professional nurse” (Ch. 477, L. 2004). It was also renumbered from §902(1)(b) to §902(2)(b).