Decision No. 12,786

(August 25, 1992)

Frank X. Kilgannon, Esq., attorney for petitioner

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger and Reich, Esqs., attorneys for respondent, Lawrence W. Reich, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent's refusal to provide homebound instruction for her son. The appeal must be dismissed.

Petitioner's son is fifteen years old and resides in the Bellmore-Merrick Central High School District. In September 1989, the student entered respondent's district as a seventh grade student at Grand Avenue Junior High School. During his elementary school years, he was enrolled in the North Bellmore Union Free School District, which provided him homebound instruction as part of a settlement to an impartial hearing, without classifying him as a child with a handicapping condition. Although petitioner requested the continuation of homebound instruction from respondent (the Bellmore-Merrick Central High School District), when her son entered the district in the fall of 1989, her request was denied. Instead, respondent enrolled the student in the Grand Avenue Junior High School for the 1989-90 school year where he remained until petitioner withdrew him from school in March 1991.

On October 18, 1989, the student's guidance counselor referred the student to respondent's committee on special education (CSE) because of his excessive absenteeism due to health problems. On October 23, 1989, the director of special education notified petitioner of the referral and requested her consent to conduct an evaluation. On November 7, 1989, respondent received a letter from a doctor requesting, on behalf of petitioner, that her son be provided homebound instruction for an indefinite period of time while the doctor completed medical tests. In a letter dated November 17, 1989, the special education director again requested parental consent to evaluate the student who, by that time, had been absent 45 out of 51 school days. At the same time, respondent's director of special education informed petitioner that the request for indefinite home instruction had been denied. Petitioner responded to the request in writing on November 25, 1989, and refused, once again, to consent to the CSE's evaluation.

The CSE met on December 14, 1989 and found a reasonable basis to suspect that the student had a handicapping condition based upon the "extraordinary number of health-attributed absences together with a parent's statement and medical notes". Nonetheless, the CSE apparently took no action. Petitioner's son was absent 134 days during the 1989-90 school year, failed his courses, and was retained in seventh grade.

The student's pattern of absenteeism continued during the 1990-91 school year. Finally, respondent initiated an impartial hearing seeking an order waiving the need for parental consent. The impartial hearing commenced on April 25, 1990 and, after three sessions, petitioner's counsel obtained several adjournments of subsequently scheduled dates. To date, the hearing has not resumed. Petitioner commenced this appeal on January 7, 1991, seeking homebound instruction. By letter dated February 25, 1991, petitioner withdrew her son from the district's schools and informed respondent that she intended to instruct him at home.

Petitioner contends that there is no requirement that her son be classified handicapped by the CSE to receive homebound instruction. At a minimum, she requests homebound instruction pending resolution of the impartial hearing.

Respondent's policy relating to homebound instruction provides that:

Respondent contends that only in limited circumstances, such as sudden hospitalization or a broken limb, is homebound instruction provided to a student without CSE recommendation and then only for the duration of the acute illness or injury. Respondent contends that, since it has reason to suspect petitioner's son has a handicapping condition due to a chronic long-term disability, a CSE evaluation is necessary to make an appropriate placement recommendation. Furthermore, respondent argues that petitioner's delay tactics have served only to prolong the process and frustrate its efforts.

Before reaching the merits, I must address respondent's argument that the appeal is moot, since both parties agree that petitioner has withdrawn her son from the district's schools. It is well settled that the Commissioner will not render a decision upon facts which no longer exist or a controversy which subsequent events have laid to rest (Matter of Schmidt, 26 Ed Dept Rep 97; Matter of Dobert, 24 id. 36; Matter of Parsell, 23 id. 33). However, in this case, petitioner's withdrawal of her son from school does not relieve respondent of its obligation to monitor his home instruction pursuant to 8 NYCRR '100.10. The fact remains that petitioner is a resident of the district. While petitioner's action has frustrated respondent's CSE process, it has not laid to rest the continuing controversy over her son's entitlement to homebound instruction. Therefore, the appeal is not moot.

Turning to the merits, in an appeal pursuant to Education Law '310, the petitioner bears the burden of establishing a clear right to the relief requested (Appeal of Vitek, 26 Ed Dept Rep 345; Matter of Lawson, 24 id. 132; Mater of Baker, 23 id. 44). Petitioner has failed to meet her burden.

A student with a disability is entitled to education in the least restrictive environment (LRE) appropriate to his or her needs (Individuals with Disabilities Education Act, IDEA, 20 U.S.C.A. '1401[a][19] etseq.; 34 C.F.R. '300.550; 8 NYCRR '200.6[a][1]). Consequently, a student may be removed from the regular educational environment only when the severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily (34 C.F.R. '300.550[b][2]; 8 NYCRR '200.6[a][1]; Application of the Bd. of Ed., Liverpool Central School District, 29 Ed Dept Rep 77). At the impartial hearing, respondent's director of special education testified regarding the restrictive nature of homebound instruction. As she explained, homebound instruction is the most restrictive placement on the continuum, equivalent to hospitalization and institutionalization. As such, it is ordinarily appropriate only as a temporary measure and not a long range solution to the question of meeting the educational needs of a child with a handicapping condition (see, 8 NYCRR 200.1[o]; Matter of a Handicapped Child, 22 Ed Dept Rep 520; Matter of Funk, 14 id. 143).

The first step in making a recommendation for special education services is to conduct a "full and individual evaluation of the child's educational needs" (34 C.F.R. '300.531; 8 NYCRR 200.1; Application of a Child Suspected of Having a Handicapping Condition, 25 Ed Dept Rep 453). Although the district may choose to rely on the parent's evaluations, it may conduct its own. In any case, a parent retains an absolute right to "submit evaluation information which . . . shall be considered by the [CSE] as part of its evaluation" (8 NYCRR '200.5[a][1][v]; seealso 34 C.F.R. '300.503[c]; Application of a Child Suspected as Having a Handicapping Condition, 26 Ed Dept Rep 33).

Before a CSE may conduct a pre-placement evaluation, it must obtain parental consent (34 C.F.R. '504[b][1]; 8 NYCRR '200.5[b]). The record shows that respondent requested petitioner's consent to conduct its own evaluation while the CSE considered the medical information she submitted. When a parent withholds consent, the board of education must either withdraw the referral or initiate an impartial hearing to determine whether the evaluation can be conducted without parental consent (8 NYCRR '200.5[b][2],[3]; seealso 34 C.F.R. '300.506). When respondent's attempt to obtain parental consent proved unsuccessful, it initiated an impartial hearing. Thereafter, petitioner withdrew her son from the district and thwarted respondent's efforts to proceed with the hearing initiated by the district to obtain a waiver of consent. Since respondent's CSE was within its rights to insist on its own evaluation rather than relying on petitioner's evaluation before recommending homebound instruction or any other special education program, the appeal is dismissed. Moreover, since there is no evidence that respondent's decision to require the CSE's involvement in this case was unreasonable or otherwise inconsistent with its own policy, I find no basis to set aside respondent's determination.

In any case, respondent is correct that providing homebound instruction indefinitely without the benefit of its own evaluation of the child is improper (Application of a Handicapped Child, 25 Ed Dept Rep 337). Although there may be cases when homebound instruction is appropriate for a student who the CSE determines not to be educationally handicapped (i.e., a student with temporary injury or illness), the CSE or another multidisciplinary team may, nonetheless, conclude that the student requires homebound instruction as an appropriate and reasonable accommodation for his or her disability pursuant to '504 of the Rehabilitation Act of 1973 ('504; 34 C.F.R. '104.35). Notably, even in those cases, a local school board would be required to conduct an evaluation or rely on the parent's evaluation before recommending such a placement (34 C.F.R. ''104.35, 104.36). Therefore, even under '504, petitioner has not established that her son is entitled to homebound instruction while she continues to withhold consent to enable the district to evaluate him to determine the appropriate level of services.

THE APPEAL IS DISMISSED.

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