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Decision No. 18,381

Appeal of D.B., on behalf of her child, from action of the Board of Education of the Moriah Central School District regarding district policies.

Decision No. 18,381

(February 13, 2024)

Stafford, Owens, Murnane, Kelleher, Miller, Meyer & Zedick, PLLC, attorneys for respondent, Jacqueline M. Kelleher, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the actions of the Board of Education of the Moriah Central School District (“respondent” or “board”) regarding the district’s concussion protocol.  The appeal must be dismissed. 

On January 17, 2023, petitioner’s child (the “student”) was hit with a soccer ball during physical education (“PE”) class.  Petitioner claims that the student thereafter fell to the floor and hit her head.  Petitioner contends that the district employee supervising the class at the time was an uncertified teacher who failed to properly assess the student for a head injury.  Petitioner alleges that this oversight led to a delayed diagnosis of a broken nose and concussion.  Petitioner further contends that, two days later, the school nurse improperly administered ibuprofen to the student without her consent. 

Thereafter, petitioner wrote to the board, requesting a copy of the district’s concussion policy.  The board responded by letter dated February 16, 2023.  This appeal ensued.

Petitioner complains of numerous actions and inactions regarding the student’s injury and interactions with the nurse.  Petitioner requests that respondent update the district’s concussion policy, impose disciplinary “consequences” upon the school nurse and the employee who supervised the student’s PE class, and reimburse her for medical bills arising from the student’s injury.

Respondent argues that the appeal must be dismissed as untimely.  Respondent further contends that much of petitioner’s requested relief is outside the scope of an appeal to the Commissioner.  On the merits, respondent argues that petitioner has not demonstrated a clear legal right to her requested relief.

First, respondent objects to the scope of the reply submitted by petitioner.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14).  A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised 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 contained in the answer.

Most of petitioner’s claims must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  Except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of D.B., 59 Ed Dept Rep, Decision No. 17,807; Appeal of Stieffenhofer, 48 id. 231, Decision No. 15,846).

The actions that form the basis of petitioner’s appeal stem from the January 17, 2023 incident in PE class and an interaction with the school nurse two days later.  Petitioner does not explain why this appeal was commenced approximately two months thereafter (see 8 NYCRR 275.16).  Accordingly, all claims concerning the alleged actions or inactions that occurred on these days are dismissed as untimely.

Petitioner’s sole timely claim must 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 establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).  Petitioner requests that the district’s concussion policy be updated to include protocols that need to be followed when a possible head injury occurs in PE class.  However, petitioner does not allege that the existing policy violates a law or regulation (Appeal of Lilker, 39 Ed Dept Rep 614, Decision No. 14,328).  Accordingly, petitioner has not established a clear legal right to her requested relief.

In light of this disposition, I need not address the parties’ remaining contentions.