Appeal of ARK COMMUNITY CHARTER SCHOOL from action of the Board of Education of the City School District of the City of Troy regarding nursing services.

Decision No. 16,169

(November 30, 2010)

Sonya del Peral, Esq., attorney for petitioner

James A.P. McCarthy, Esq., attorney for respondent

STEINER, Commissioner.--Petitioner appeals the decision of the Board of Education of the City School District of the City of Troy (“respondent”) to deny its request for 26.25 hours of nursing services per week.  The appeal must be dismissed.

Petitioner is a charter school located within respondent’s district.  The record indicates that, during the 2009-2010 school year, respondent provided nursing services to the nine public schools, one parochial school, and two charter schools (including petitioner) located within the district.

In an October 19, 2009 letter to respondent’s superintendent, petitioner’s attorney objected to respondent’s provision of nursing services to petitioner’s 209 students “only 7.5 hours a week, spread over three afternoons,” and alleged that respondent had failed to provide petitioner with nursing services equivalent to those provided in respondent’s public schools, as required by Education Law §912.  Specifically, petitioner calculated that the services provided to petitioner comprised only 23% of those provided at respondent’s smallest public elementary school, which had an enrollment of 292 students and “at least a full-time nurse on site.”  Petitioner’s attorney also alleged “multiple occasions on which [the nurse] does not show ... because either [respondent’s schools are] not in session or [the nurse] has been directed to be elsewhere.”  Petitioner’s attorney requested that respondent provide petitioner with a nurse for at least 3.5 days per week.

By letter dated October 22, 2009, respondent’s attorney stated that the district provided petitioner’s students with “equivalent services” and was therefore in compliance with Education Law §912.  Respondent’s attorney also noted that petitioner enrolled “many” nonresident students to whom respondent was not required to provide nursing services.

In a November 20, 2009 letter, respondent’s attorney informed petitioner’s attorney that a nurse would provide services at petitioner’s school four days per week for three hours each day (12 hours per week).  By letter dated December 18, 2009, respondent’s attorney stated that the nurse would provide services at petitioner’s school five days per week for three hours each day (15 hours per week).  This appeal ensued.

On or about March 8, 2010, subsequent to the commencement of this appeal, respondent informed petitioner that the district would provide petitioner with 7.5 hours of nursing services per week for the remainder of the 2009-2010 school year.

Petitioner contends that respondent has failed to provide equivalent nursing services to petitioner’s students in violation of Education Law §912.  Petitioner seeks an order directing respondent to provide (1) at least 26.25 hours of nursing services each week by an assigned nurse and (2) a substitute nurse when the assigned nurse is absent.

Respondent argues, interalia, that the appeal must be dismissed for failure to state a claim upon which relief may be granted.  Respondent maintains that it provides services to petitioner in compliance with Education Law §912.

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).  The gravamen of petitioner’s appeal is that respondent failed to provide a minimum of 26.25 hours of nursing services per week during the 2009-2010 school year, which has ended.  Petitioner does not object to the nursing services to be provided by respondent during the 2010-2011 school year nor does the record contain a description of such services.  Since no meaningful relief can be granted regarding the services provided during the 2009-2010 school year, petitioner’s claims for relief in this regard are moot.

Although the appeal must be dismissed as moot, I note that the record is unclear as to the procedure(s) respondent used to determine equivalent services in compliance with Education Law §912.  The record also reflects some level of difficulty between the parties in establishing an acceptable schedule for the provision of nursing services.  Indeed, the record reflects that by March 2010 – more than halfway through the 2009-2010 school year – respondent appears to have changed the number of hours of nursing services provided to petitioner at least three times.  I remind respondent of its obligation to establish a coherent methodology for providing equivalent health services to resident students attending nonpublic and charter schools, and of the importance of establishing and maintaining, to the extent practicable, a consistent schedule of the nursing services provided thereto.

THE APPEAL IS DISMISSED.

END OF FILE.