Appeal of GERSCH ACADEMY, INC. from action of the Board of Education of the West Hempstead Union Free School District, et al.[i] regarding the provision of health and welfare services.

Decision No. 17,609

(March 27,2019)

Oroma H. Reynolds, Esq., attorney for petitioner

Guercio & Guercio, LLP, attorneys for respondent West Hempstead Union Free School District, Christopher F. Mestecky, Esq., of counsel

ELIA, Commissioner.--Petitioner (“Gersch”), a nonpublic school located within the geographical boundaries of the West Hempstead Union Free School District (“respondent”), appeals the refusal of respondent “to compensate or reimburse” it for health and welfare services which it incurred.  Petitioner also joins 27 public school districts which, it contends, are necessary parties to this appeal.  The appeal must be dismissed.

In a letter to respondent’s superintendent of schools (“superintendent”) dated October 26, 2016, petitioner requested a meeting to “discuss health and welfare services ....”  The record indicates that such a meeting was held on November 10, 2016.  At this meeting, petitioner requested that respondent provide it with nursing services.  According to the record, respondent attempted to obtain the services of a nurse for the remainder of the 2016-2017 school year through various agencies.  However, respondent indicates that it struggled to obtain nursing services due to the general difficulty of securing part-time nursing services and because the school year had already commenced.

By email dated April 26, 2017, respondent’s interim director of pupil personnel services notified petitioner that a candidate for the nurse position would be presented to respondent for appointment. 

On May 9, 2017, respondent appointed a part-time school nurse to deliver health and welfare services to petitioner’s students, effective May 2, 2017 for the 2016-2017 school year.[1] 

The record indicates that, during May and June 2017, the parties’ attorneys corresponded regarding reimbursement for nursing services provided prior to the nurse’s appointment on May 2, 2017.  The parties also discussed how reimbursement for nursing services would be calculated, and what documentation was required to support reimbursement.

By letter dated June 26, 2017, petitioner’s superintendent of educational programs, Diana DeVivio, wrote to respondent to make it aware of “a disconcerting situation” concerning respondent’s compliance with Education Law §912.  This letter stated that petitioner was “currently located in West Hempstead since July 1, 2013” and that it had “requested [health and welfare] services” but “West Hempstead ... failed to meet such requirements and is not in compliance with requests made by our school.”  Ms. DeVivio then asserted that:

[t]he services requested include, but are not limited to, all services performed by a physician, dentist, school nurse, recording of health histories; physical examinations, in-school immunization; maintaining cumulative health records; and administering emergency care programs for ill or injured students.

By letter dated July 28, 2017, counsel for respondent indicated that Ms. Devivio’s identification of “numerous services” in her June 26, 2017 letter was “inconsistent” with previous meetings between petitioner and respondent during which petitioner had only requested nursing services.  Counsel for respondent sought clarification that petitioner was only requesting reimbursement for nursing services for the 2016-2017 school year.

On September 11, 2017, the parties met to discuss the provision of, and reimbursement for, health and welfare services.

By letter dated September 12, 2017, petitioner’s superintendent wrote to respondent’s superintendent and requested health and welfare services for the current (i.e., 2017-2018) school year. 

By letter dated September 18, 2017, petitioner sent respondent a “verified [s]ettlement [d]emand” in the amount of $62,167.22, which allegedly represented health and welfare services costs which petitioner incurred and, according to petitioner, should have been provided by respondent.

By letter dated October 24, 2017, respondent’s assistant superintendent for business indicated that he had reviewed petitioner’s demand and concluded that, according to respondent’s “purchasing policies, in conjunction of [sic] Federal and New York State guidelines [which] govern [respondent’s] purchasing, spending and payment arrangements,” petitioner was entitled to $31,663.40 in reimbursement.  The letter also stated that if petitioner had additional documentation to “substantiate the validity of [its] claims,” it should submit such documentation to respondent for review.  This appeal ensued.  Petitioner’s request for interim relief was denied on December 1, 2017.

Petitioner alleges that “since July 1, 2013, the administration of Gersch Academy has continuously requested health and welfare services from [respondent] pursuant to Section 912 of the Education Law” and that respondent “has failed to comply with its ongoing statutory obligation since the 2013-2014 school year, and has not provided any health and welfare services to Gersch Academy except for a half-time nurse for the 2017-2018 school year.”  Petitioner requests a finding that it is entitled to $62,167.22, which it claims represents “the total cost of all health and welfare services divided by the total number of students, public and nonpublic, multiplied by the number of students attending Gersch Academy, whichever is greater.”  Petitioner also seeks an order directing respondent to provide health and welfare services during the 2017-2018 school year and an order directing respondent to be:

diligent in its compliance with Section 912, to develop procedures to implement it, and to enter into good faith negotiations for binding contractual commitments, [and] to avoid future conflicts over reimbursement.

Finally, petitioner seeks “leave” to bring an appeal relating to reimbursement for the provision of health and welfare services for the 2013-2014, 2014-2015, and 2015-2016 school years and an order directing respondent to disclose to petitioner certain information relating to those years.

Respondent argues that the appeal must be dismissed for improper service, as untimely, and for lack of verification.  Respondent also argues that petitioner lacks standing to bring this appeal “[on behalf of] its 2016-2017 and 2017-2018 Student Body,” as stated in the caption of the petition.  Respondent further argues that the appeal must be dismissed for failure to state a claim upon which relief may be granted and failure to meet its burden of proof.

First, I must address several procedural matters.  Petitioner submitted a reply in this matter which contains new allegations and exhibits.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Petitioner also requests that I afford it “leave” to file a petition seeking reimbursement for these school years.  Although I have no authority to grant such a request, petitioner remains free to commence an appeal pursuant to Education Law §310 without prior approval of the Commissioner.

Petitioner also submits five additional submissions which it requests that I accept and consider.  Respondent has objected to consideration of each of these submissions.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).

First, by letter dated December 5, 2017, petitioner requests permission to submit a “Motion to Strike.”  Petitioner requests that I strike answering papers submitted by nine school districts which are represented by Guercio and Guercio, LLP, the same law firm that represents respondent, the “primary” respondent in this appeal.  Petitioner alleges that “the conflict of interest presented [by this representation] renders the answering papers ... wholly defective.”  An appeal to the Commissioner of Education pursuant to Education Law §310 is not the proper forum to adjudicate attorneys’ compliance with the rules of professional responsibility (Appeal of Ecker, 31 Ed Dept Rep 348, Decision No. 12,662).  Therefore, I have not accepted any portion of petitioner’s December 5, 2017 submission into the record.

Second, by letter dated January 29, 2018, petitioner requests permission to “[r]eply to the additional filings” of certain school districts, including respondent.  It is not clear what petitioner means by “additional filings” as petitioner submitted replies to answers submitted by respondent and other school districts in December 2017.  It appears that petitioner seeks to reply to affirmative defenses which were discussed in respondent’s memorandum of law.  However, respondent did not raise new arguments in its memorandum of law; it merely offered legal arguments concerning defenses which it appropriately raised in its answer.  I further note that petitioner was entitled to file and serve a memorandum of law within 20 days after the service of respondent’s answer, which it did not do (see 8 NYCRR §276.4).  Therefore, I decline to consider petitioner’s submission dated January 29, 2018.

Third, by letter dated February 26, 2018, petitioner submits certain “records retrieved online” and requests that I consider them as part of the record.  Although not entirely clear, petitioner’s submission appears to be an excerpt from meeting minutes of the Board of Education of the Mineola Union Free School District concerning health services contracts for the 2010-2011 school year.  Petitioner does not allege that these documents were not available at the time the petition was filed; therefore, I have not considered them (see Appeal of Wilhelm, 56 Ed Dept Rep, Decision No. 17,062).

Fourth, by letter dated May 11, 2018, petitioner requests permission to “augment the evidentiary record with four pertinent documents received by [p]etitioner on March 26, 2018 through the New York State Freedom of Information Law.”  While receipt of documents pursuant to a Freedom of Information Law request may constitute valid grounds for the acceptance of new evidence, the documents submitted by petitioner are not relevant to the claims in this appeal.  Specifically, these documents consist of contracts between respondent and other school districts pursuant to Education Law §912 concerning the provision of, and reimbursement for, health and welfare services.  Petitioner claims that the per pupil reimbursement rate established between respondent and other districts is relevant to a determination of its claims.  However, petitioner, a nonpublic school, is seeking relief based upon respondent’s alleged failure to provide health and welfare services; it is not a school district of location seeking reimbursement from a school district of residence (see e.g. Appeal of the Board of Education of the New Hyde Park-Garden City Park Union Free School District (57 Ed Dept Rep, Decision No. 17,397).  Thus, the amount which respondent has agreed to reimburse districts of location is not relevant to petitioner’s claims.  Consequently, I decline to accept petitioner’s May 11, 2018 submission into the record.

Fifth, by letter dated September 7, 2018, petitioner identifies health and welfare services which it requested from respondent for the 2018-2019 school year.  While it is not entirely clear if petitioner is requesting that I accept this document into the administrative record, I decline to do so.  Health and welfare services for the 2018-2019 school year are not at issue in this appeal, and it would be inappropriate to permit petitioner to interject new claims for new school years in the instant proceeding.  If petitioner wishes to seek relief concerning the 2018-2019 school year, it must file a new petition in accordance with Education Law §310. Therefore, I have not accepted petitioner’s September 7, 2018 submission into the record.

The appeal must be dismissed for lack of personal service.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939).

The affidavit of service filed with the petition indicates that the petition was served on Theresa Bryant and that the deponent knew that the person so served was a “secretary” and duly authorized to accept service.  Respondent submits an affidavit from Ms. Bryant in which she attests that she is a secretary to the superintendent, and that she is not a school officer as defined by the Education Law nor authorized to accept service on behalf of respondent.  In the affidavit, Ms. Bryant specifically avers that: “on November 14, 2017, a female entered the [d]istrict’s administrative office and handed [her] papers,” and that, “[u]pon later review, the papers considered of a notice of petition and verified petition [in the instant matter].”

In its reply, petitioner contends that service was proper because the secretary “provided [the] process server with her first and last name.”  Notably, however, petitioner does not assert that the secretary represented that she was authorized to accept service.  Even assuming, arguendo, that petitioner had so alleged, petitioner relies upon allegations made by its attorney[2] and did not submit an affidavit from the process server, the only other individual who appears to have personal knowledge of the circumstances under which service was attempted.  Under the circumstances, I find the affidavit submitted by Ms. Bryant, which is based upon personal knowledge, to be more persuasive.  Therefore, on this record, I cannot conclude that petitioner properly served a copy of the petition on respondent in accordance with §275.8(a) of the Commissioner’s regulations and the appeal must be dismissed.

Additionally, to the extent petitioner challenges the actual provision of services during the 2016-2017 and 2017-2018 school years, 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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  The gravamen of petitioner’s appeal is that respondent failed to provide it with a sufficient level of nursing services during the 2016-2017 and 2017-2018 school years, which have ended.  Petitioner also asserts that respondent did not provide it with sufficient health and welfare services for the 2013-2014, 2014-2015, and 2015-2016 school years.  Since no meaningful relief can be granted regarding the services provided during these school years, petitioner’s claims for relief in this regard are moot (see Appeal of a Student with a Disability, 51 Ed Dept Rep, Decision No. 16,258; Appeal of Ark Community Charter School, 50 id., Decision No. 16,169).

Petitioner argues that the Commissioner has held that a district’s obligation to provide health and welfare services is “continuing” and, thus, the instant dispute is not moot.  However, this line of reasoning derives from appeals resolving district-to-district reimbursement claims, not claims involving the provision of health and welfare services (see Appeal of the Bd. of Educ. of the Brighton Central Sch. Dist., 36 Ed Dept Rep 381, Decision No. 13,755; Matter of Board of Education of the City School District of the City of Long Beach, 5 id. 180, Decision No. 7,633; Matter of Central High School District No. 2, Towns of Hempstead and North Hempstead, 2 id. 255, Decision No. 7,066; Matter of Union Free School District No. 3, Town of Eastchester, 77 St Dept Rep 130).  In cases concerning the provision of health and welfare services during particular school years, the Commissioner has consistently found such disputes moot at the expiration of the disputed school year since no meaningful relief can be granted in that situation (see Appeal of a Student with a Disability, 51 Ed Dept Rep, Decision No. 16,258; Appeal of Ark Community Charter School, 50 id., Decision No. 16,169).[3]  Thus, the instant dispute is moot, warranting dismissal.

Further, even if the petition was not subject to dismissal for the reasons articulated above, petitioner’s claims for reimbursement for the provision of health and welfare services for the 2013-2014, 2014-2015, and 2015-2016 school years would be dismissed for failure to state a claim upon which relief may be granted.  Petitioner, a nonpublic school, is seeking money damages based upon respondents’ alleged failure to provide a sufficient level of health and welfare services.  It is well-settled that the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,244; Application of Kolbmann, 48 id. 370, Decision No. 15,888).  A claim for damages must be presented to a court of competent jurisdiction (see e.g. Appeal of a Student with a Disability, 33 Ed Dept Rep 1, Decision No. 12,955).[4]

Finally, I note that petitioner claims that 27 other school districts are necessary parties to this appeal and has joined them as such.  However, petitioner asserts no claims against these 27 school districts and does not seek any relief against them.  Therefore, the appeal must also be dismissed as against them.  In light of this determination, I need not address the parties’ remaining arguments.

THE APPEAL IS DISMISSED.

END OF FILE