Appeal of K.L., on behalf of her daughter V.L., from action of the Board of Education of the New Lebanon Central School District regarding home instruction.

Decision No. 16,627

(June 30, 2014)

Young, Somer, Ward, Ritzenberg, Baker & Moore, L.L.C., attorneys for respondent, Kenneth S. Ritzenberg, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals a determination of the Board of Education of the New Lebanon Central School District (“respondent”) denying her request for home instruction for her daughter, V.L. The appeal must be dismissed.

During the 2009-2010 school year, while enrolled in an out-of-state nonpublic school, V.L. became ill and was unable to attend classes at school. As a result, she enrolled in respondent’s schools and, pursuant to a plan developed under §504 of the Rehabilitation Act, 29 U.S.C. §794 (“§504”), received home instruction from respondent for the remainder of the 2009-2010 school year and the entire 2010-2011 school year. In addition, in April 2010 and again in March 2011, respondent’s committee on special education (“CSE”) evaluated V.L. and determined that she was not a student with a disability under the Individuals with Disabilities Education Act, 20 U.S.C. §§1401, et seq., (“IDEA”) and Education Law §4401 and, thus, was not entitled to receive special education services.

In or around August 2011, petitioner notified respondent that V.L. was still unable to attend school full time as a result of her illness. According to an August 23, 2011 letter from her physician, V.L. could only attend school for two hours each day and required home instruction for two additional hours each day. Petitioner enrolled V.L. in the Darrow School, a nonpublic school, for the 2011-2012 school year. The Darrow School indicated that V.L. was a full-time student but, in accordance with her physician’s directive, provided her instruction for only part of the day in “Writing and Literature I” and “Environmental Science.” It appears that on September 1, 2011, petitioner met with respondent’s high school principal and requested that the district provide V.L. with home instruction in her remaining 9th grade courses while she was also attending the Darrow School.

At that meeting, the principal apparently denied petitioner’s request and, by letter dated September 9, 2011, petitioner appealed to respondent’s superintendent. By letter dated September 28, 2011, after meeting with petitioner, the superintendent notified her that V.L. could not receive instruction concurrently from both the Darrow School and the school district.

By letter dated October 3, 2011, petitioner again wrote to the superintendent reiterating her belief that V.L. was entitled to home instruction from the district while also attending the Darrow School. Petitioner requested a §504 meeting to update V.L.’s plan to reflect her physician’s August 23, 2011 directive. Petitioner also referred to her objections to the CSE’s earlier decisions not to classify V.L. as a student with a disability under the IDEA. She asked that the Special Education Coordinator be directed to classify V.L. and stated “I am prepared to take [V.L.’s] denial of classification ... to an independent hearing.” Petitioner also asked to address respondent at its next meeting regarding these issues. Finally, petitioner stated, “[i]f after reviewing the enclosed information, you continue to stand by your letter of September 28th, please inform me by October 11th, so that I can pursue my legal options.”

By letter dated October 11, 2011, the superintendent declined to reconvene a §504 committee meeting, stating that such had already taken place in September and that V.L.’s subsequent enrollment in the Darrow School negated any need for the district to alter its §504 plan. The superintendent also re-stated the CSE’s determinations in April 2010 and March 2011, and the basis therefor, that V.L. was not eligible to be classified as a student with a disability.

By letter dated October 20, 2011, petitioner appealed to respondent from the superintendent’s denial of petitioner’s request for home instruction while V.L. was attending school at the Darrow School for part of the day. She also set forth her objections to the decision not to classify V.L., again stating that she was “prepared to take [V.L.’s] denial of classification, as well as the denial of essential services that she needs to receive an appropriate education to an independent hearing.” Petitioner asked to address respondent at its next meeting and stated “[i]f I do not hear from you within 7 business days, I will assume that you are upholding the ... decision to deny my child homebound instruction, and I will pursue my appeal of this decision to the Commissioner of Education and the denial of an appropriate education at a due process hearing.”

By letter dated October 24, 2011, the superintendent notified petitioner, on behalf of the board president, that her October 20, 2011 request to address the school board was declined.

Thereafter, by letter to the superintendent dated December 16, 2011, petitioner requested reconsideration of the decision to deny V.L. home instruction while she was also attending the Darrow School. Petitioner included two letters from V.L.’s physicians in support of her request for reconsideration. In her letter, petitioner stated, “I am formally requesting a due process hearing.” Petitioner demanded a response within five business days “so that I may exercise my other legal options.”

Simultaneously, on December 16, 2011, petitioner advised respondent’s principal that V.L. was now unable to attend school at all and provided a letter dated December 14, 2011, from V.L.’s physician stating that V.L. was too ill to attend any classes and that home instruction was necessary until January 3, 2012. The physician stated that, due to V.L.’s condition, such home instruction could not be provided before 11:00 a.m. The district subsequently closed for winter recess, although the record does not indicate the dates of the recess. Thereafter, on January 9, 2012, petitioner submitted an updated physician’s note, dated January 6, 2012, requesting home instruction for V.L. until January 31, 2012.

By letter dated January 4, 2012, the superintendent replied to petitioner’s December 16, 2011 letter in which petitioner sought reconsideration of her request for home instruction for V.L. while she also attended the Darrow School. The superintendent again stated that V.L. was not entitled to home instruction under those circumstances. The superintendent also stated that, based on her assessment of the nature of petitioner’s complaints, petitioner was not entitled to a due process hearing under the IDEA, New York State Education Law or §504.

On January 10, 2012, respondent’s principal contacted petitioner in response to her December 16, 2011 request and to arrange for home instruction, since V.L. was no longer attending any classes at the Darrow School. The principal initially indicated that instruction would be provided only in the two courses that V.L. was taking when in attendance at the Darrow School. By letter dated January 12, 2012, petitioner requested that V.L. receive home instruction “in a full-time 9th grade curriculum, which would include Algebra I, 9th grade Social Studies and a world language.” Petitioner requested a §504 meeting to address that issue, as well as to discuss V.L.’s entitlement to part-time instruction when she was able to return to school part-time. Petitioner also indicated that, with respect to the prior decisions of the CSE not to classify V.L., she was “currently preparing my complaint for a due process hearing.” Petitioner further stated that she was still interested in resolving the issues without the need for due process.

This appeal ensued. Petitioner’s request for interim relief was denied on February 2, 2012.

On or about January 17, 2012, respondent’s principal arranged to provide home instruction in respondent’s core curriculum of Algebra, Global Studies I, Environmental Science and English. Pursuant to further directives of V.L.’s physician, she was unable to attend school and required home instruction through February 25, 2012.

Petitioner asserts that pursuant to §504, New York State Compulsory Education Laws and respondent’s policy, V.L. is entitled to receive home instruction from respondent regardless of whether V.L. is attending a nonpublic school part-time. She maintains that V.L. need not disenroll from the Darrow School and enroll in respondent’s schools in order to access such home instruction. Petitioner also contends that V.L. is entitled to receive a full-time 9th grade curriculum in accordance with the curriculum offered at the Darrow School, including instruction in a world language course. She seeks an order directing respondent to provide home instruction while V.L. is attending the nonpublic school part time and directing respondent to provide home instruction within two business days of notification that V.L. cannot attend any of her classes. She also seeks compensatory education.1

Respondent contends that the appeal is, in part, untimely. Respondent also asserts that the appeal should be dismissed for lack of subject matter jurisdiction and that petitioner is not entitled to compensatory education.

Respondent also asserts that V.L. is not entitled to receive home instruction if she is also attending a nonpublic school for part of the day. Respondent asserts that V.L. is not a student with a disability under Education Law §4401 and, therefore, respondent is not required to provide special education services to V.L. under the dual enrollment provisions of Education Law §3602-c. Respondent maintains that it timely provided appropriate home instruction to V.L. when she became unable to attend school, that it need not provide home instruction in accordance with the non-public school curriculum and that it is otherwise in compliance with applicable Commissioner’s regulations.

I must first address several procedural matters. I note that petitioner submitted a reply with exhibits to respondent’s affidavits in opposition to her request for interim relief. Although I may consider additional pleadings and papers in an appeal commenced pursuant to Education Law §310, petitioner may not buttress allegations in the petition or belatedly add assertions that should have been in the petition (Appeal of W.S., 53 Ed Dept Rep, Decision No. 16,601). Therefore, while I have considered petitioner’s reply, including the additional information pertaining to claims raised in her petition but that was not available at the time she commenced her appeal, I have not considered those portions containing claims or documentation that should have been included in the petition.

Similarly, 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). Petitioner submitted a response to the answer that consists merely of two letters from a school psychologist and a counselor in support of allegations in her petition. Both documents were available at the time petitioner commenced her appeal. As noted above, a reply may not belatedly add assertions or exhibits that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901). Petitioner offers no explanation for not including the letters in her petition. Therefore, I have not considered those letters submitted as petitioner’s reply herein.

Petitioner also submitted a reply memorandum of law, including her affidavit and several exhibits, to which respondent objects. Pursuant to §276.4 of the Commissioner’s regulations, a reply memorandum of law may be submitted only with the prior permission of the Commissioner. Similarly, 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 (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833). Petitioner did not request or receive permission to submit a reply memorandum of law or the additional documentation included with such memorandum. Therefore, the reply memorandum and additional documentary submissions have not been considered.

The appeal must be dismissed, in part, as untimely. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879). By letter dated September 28, 2011, respondent’s superintendent denied petitioner’s request for concurrent home instruction for V.L. while she was also attending the Darrow School. Petitioner appealed that decision to respondent by letter of October 20, 2011, stating, “[i]f I do not hear from you within 7 business days, I will assume you are upholding the ... decision to deny my child homebound instruction and I will pursue my appeal of this decision to the Commissioner of Education ....” By letter dated October 24, 2011, petitioner’s request to address the board regarding the matter was denied.

Almost two months later, on December 16, 2011, petitioner wrote to the superintendent requesting reconsideration of her request for home instruction for V.L. for part of the school day. In her letter, petitioner stated that the district “is being arbitrary in denying the services of a tutor and home instruction to [V.L.]....” On January 4, 2012, the superintendent reiterated her denial of petitioner’s request.

I find that petitioner’s time in which to initiate an appeal from respondent’s denial of her request for home instruction for V.L. while V.L. also attended the Darrow School began to run no later than October 24, 2011, when petitioner’s request to address the board regarding the matter was denied. However, instead of initiating an appeal to the Commissioner of Education - a proceeding of which petitioner was fully aware and to which she referred in her letter - petitioner instead wrote again to the superintendent almost two months later on December 16, 2011 requesting reconsideration of the district’s denial of petitioner’s request for home instruction. A reconsideration request does not extend the time within which an appeal must be commenced (Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Valentino, 48 id. 254, Decision No. 15,851).

I conclude that petitioner should have commenced her appeal no later than November 23, 2011. Petitioner did not initiate this appeal until January 13, 2012, outside the required time period.2

Petitioner asserts that respondent’s actions constitute a continuing wrong and, thus, the appeal is timely. The continuing wrong doctrine applies when the ongoing action is itself an unlawful action, such as the unlawful employment of an unqualified individual (Appeal of Kippen, 48 Ed Dept Rep 469, Decision No. 15,919), unlawful appointments to a district’s shared decision-making team (Appeal of Sadue-Sokolow, 39 Ed Dept Rep 6, Decision No. 14,155), an improperly constituted professional development team (Appeal of Copenhagen Teachers’ Association, et al., 45 Ed Dept Rep 459, Decision No. 15,381) or certain ongoing expenditures under an austerity budget that did not comply with the law (Appeal of Aarseth, 32 Ed Dept Rep 506, Decision No. 12,901). The doctrine does not apply where the specific action being challenged is a single action, inaction or decision and the resulting effects are not intrinsically unlawful (Application of Ayers, 48 Ed Dept Rep 350, Decision No. 15,883; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821, judgment granted dismissing petition to review, April 8, 2009, Sup.Ct., Albany Co. [Zwack, J.]). In this instance, respondent’s determination not to provide a student home instruction under specific circumstances is a discrete, single action the effects of which are not intrinsically unlawful and, thus, is not a continuing wrong. Consequently, that part of petitioner’s appeal challenging respondent’s denial of her request for home instruction for V.L. concurrent with V.L.’s attendance at the Darrow School is dismissed as untimely.

Although petitioner’s remaining claims were timely commenced, 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). Petitioner challenges respondent’s actions with respect to the provision of home instruction, including the scope of such instruction, during the 2011-2012 school year. Petitioner commenced this appeal on January 13, 2012, and her request for interim relief was denied on February 2, 2012. The parties submitted pleadings and papers pursuant to Parts 275 and 276 of the Commissioner’s regulations through April 2012, and the school year concluded shortly thereafter. Consequently, the matter is academic and the appeal is dismissed as moot.

Moreover, to the extent that petitioner bases her claims regarding her daughter’s entitlement to home instruction on the requirements of §504, enforcement of §504 is within the jurisdiction of the federal courts, the U.S. Department of Justice and the U.S. Department of Education, and may not be obtained in an appeal brought pursuant to Education Law §310 (Appeal of a Student Suspected of Having a Disability, 40 Ed Dept Rep 75, Decision No. 14,425; Appeal of a Student with a Disability, 39 id. 752, Decision No. 14,369; Appeal of a Student with a Disability, 36 id. 322, Decision No. 13,736). Therefore, I lack jurisdiction to entertain such claims, including any pendant claims for compensatory education.

Even if the appeal were not dismissed on procedural grounds, it would also 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 the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

As noted above, petitioner’s §504 claims are not properly before me. Further, petitioner indicates that she is not raising any claim under the IDEA and, indeed, such would also not be properly brought in this proceeding. Therefore, to prevail in this appeal, any entitlement to home instruction while also enrolled at a nonpublic school must be based upon state law or district policy.

Petitioner cites to no general provision authorizing or requiring a board of education to provide part-time instruction to a student also enrolled in a non-public school and, indeed, there is none (Appeal of Sutton, 39 Ed Dept Rep 625, Decision No. 14,332; Appeal of Michael and Elizabeth B., 18 id. 19, Decision No. 9,722; Appeal of Mayshark, 17 id. 82, Decision No. 9,502). Although Education Law §3602-c provides authority for a board of education to dually enroll students enrolled in a nonpublic school and provide them educational services in specific areas - career education, services to gifted students and education for students with disabilities – that statute is not applicable here.

Education Law §1709(24) authorizes a board of education to provide:

transportation, home-teaching or special classes, as defined under [Education Law §§4401 and 4402] for physically or mentally handicapped and delinquent children. Such transportation, home-teaching or special classes, when provided pursuant to this subdivision, shall be granted to all such children irrespective of the school they legally attend.

In support of her claim, petitioner cites to Scales v. Board of Ed. Of Union Free Sch. Dist. No. 12 (41 Misc2d 391), where the court applied Education Law §1709(24) and found that a student who is “physically incapacitated for a long period of time” is entitled to home instruction even if that student is enrolled in a nonpublic school.3 In that case, however, the student was confined to bed for several months and did not attend any classes at school. The court held that the student was not required to dis-enroll from the nonpublic school and enroll in the public schools to receive home instruction. Although petitioner correctly asserts that, under the Scales holding, V.L. need not dis-enroll from the Darrow School to obtain home instruction from respondent, Scales did not address the situation presented here where the student demanded home instruction from the public school district while concurrently attending classes at a nonpublic school. Scales, therefore, is not dispositive in this proceeding and petitioner’s reliance on it to demand part-time instruction for V.L. is misplaced.

Education Law §1709(24) provides authority for a board of education to provide temporary homebound instruction for students suffering a short-term disability (Appeal of a Student Suspected of Having a Disability, 40 Ed Dept Rep 75, Decision No. 14,425; Appeal of Douglas and Barbara K., 34 id. 214, Decision No. 13,286). The record indicates that respondent has adopted such a policy, which states:

Resident children attending public or nonpublic schools who qualify for home tutoring due to a long term illness shall be provided with such instruction in accordance with New York State Law and Commissioner’s Regulations.

Respondent indicates that such student would qualify for home tutoring upon his or her inability to attend classes in public or nonpublic school. This is consistent with guidance from the State Education Department (“Department”) which states:

Parents requesting these services must comply with local board of education requirements to provide medical verification of the student’s inability to attend school for a time that exceeds the number of days required by the district (about 10 days)(New York State Education Department, “Home Instruction Questions and Answers,” Updated October 2013, Available: http://www.p12.nysed.gov/sss/homeinstruction.html).

Here, petitioner’s daughter was attending the nonpublic school during the fall semester and, thus, did not qualify for home instruction at that time under District policy. On this record, I cannot conclude that petitioner established a clear legal right to the relief sought and her claim must fail (see Appeal of a Student Suspected of Having a Disability, 40 Ed Dept Rep 75, Decision No. 14,425).

Similarly, petitioner has not met her burden of clearly establishing that the home instruction provided by respondent commencing in January 2012, when V.L. was unable to attend classes at the Darrow School, was improper. Respondent provided V.L. instruction in the core academic subjects of Algebra, Global Studies I, Environmental Science and English. Petitioner contends that respondent was obligated to provide the curriculum taught by the Darrow School, particularly in Environmental Studies, Writing and Literature I. She also contends that respondent was required to provide V.L. with instruction in “a world language” and to ensure that V.L. earned credit for all her ninth-grade courses by the end of the school year.

Initially, I note that Commissioner’s regulations require that V.L. must earn 22 credits to be awarded a New York State high school diploma (8 NYCRR §100.5[a][3]). However, the pace at which a student earns such credit is not prescribed in regulation. Indeed, Education Law §1709 (3) authorizes boards of education “[t]o prescribe the course of study ... and to regulate the admission of pupils and their transfer from one class or department to another, as their scholarship shall warrant.” While petitioner preferred that V.L. attain a certain number of credits upon completion of the 2011-2012 school year, there is no legal entitlement to such.

I note that where a student is to receive home instruction, the appropriateness of the instruction required must be determined on a case-by-case basis and will depend on the student’s specific circumstances. For example, more flexibility in instruction may be permitted for a student just commencing high school in contrast with a student completing the last semester of his or her senior year. Here, petitioner demanded instruction in “a world language” as part of V.L.’s home instruction program to enable V.L. to acquire credit in the course by the end of the school year. To earn a New York State high school diploma, a student must obtain one credit in a language other than English prior to graduating (8 NYCRR §100.5[b][7][iv][g]). However, there is nothing in statute or regulation prescribing the high school grade in which such credit is acquired. Therefore, under these circumstances, I cannot conclude that petitioner has carried her burden of establishing that respondent’s determination not to include instruction in “a world language” as part of V.L.’s home instruction program was arbitrary, capricious or in violation of law.

Petitioner also claims that the home instruction offered V.L. was improper because respondent did not implement the Darrow School’s curriculum in Writing and Literature I (English) and Environmental Studies (Science). Although she does not contest the instruction provided by respondent in Algebra (Mathematics), she asserts that the curriculum respondent provided in Global Studies (Social Studies) was inappropriate.

Petitioner cites to no legal authority and, indeed, there is none, requiring a public school district to replicate a nonpublic school curriculum in providing home instruction. However, in determining the appropriate instruction to be provided, a school district should consider all relevant factors, such as the student’s grade level, point in the school year, syllabus previously covered and prior student work.

Petitioner here asserts that respondent’s staff did not communicate with the Darrow School at all regarding V.L.’s English and science classes. However, in an affidavit, respondent’s principal avers that, on or about January 10, 2012, she spoke with a Darrow School administrator “regarding V.L.’s education” and also discussed V.L.’s “current educational status.” Moreover, petitioner has submitted no evidence, such as affidavits, course curricula, syllabi or other documentation, on which to conclude that the home instruction provided to V.L. in English, Science and social studies was unreasonable.

Absent a curriculum outline or course syllabi from any of the public and nonpublic school courses at issue, I cannot determine whether the home instruction program provided by respondent was unreasonable in the challenged academic areas of English, science and social studies. On the record before me, petitioner has not met her burden of proof and I cannot conclude that respondent’s actions were arbitrary, capricious or in contravention of law.

The record also lacks sufficient information on which to make a determination regarding the reasonableness of respondent’s actions in providing timely home instruction to V.L. under the circumstances presented. According to the record, on December 16, 2011, petitioner provided respondent with a letter from V.L.’s physician stating that V.L. could no longer attend classes in school and that she required a home tutor through January 3, 2012. The letter stated that such instruction could not exceed two hours daily and must take place prior to 11:00 a.m. each day. Thereafter, on January 9, 2012, petitioner provided a second letter in which V.L.’s physician stated that, at that time, V.L. would not be able to return to school until January 31.

Respondent admits receipt of the letters and states that the relevant dates coincided with both the Darrow School’s winter recess and its own winter recess. Neither party provides the dates that the schools were not in session. Respondent also contends that the restrictions that V.L.’s physician placed upon the time during which V.L. could receive home instruction limited its ability to immediately assign a tutor. It appears that respondent’s principal spoke with petitioner on January 10, 2012 to arrange for a tutor to provide home instruction and such commenced on January 17, 2012. The record does not contain information regarding the days the public school was not in session so as to determine when V.L.’s home instruction should have commenced in accordance with respondent’s home instruction policy. Although the record lacks sufficient information on which to make a determination under the circumstances presented, respondent is reminded to act reasonably promptly in providing such instruction upon receipt of a request therefor.

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

As a final matter, I note that, during the 2011-2012 school year, V.L. was a student subject to the compulsory education law which requires that, while attending nonpublic school, such student must receive instruction substantially equivalent to the instruction provided in the public schools in the district in which the student resides (Education Law §3204[2]). During the fall semester, V.L. was considered a full time student of the Darrow School, yet received instruction only in English and science. I find it troubling that respondent took no steps to enforce the compulsory education law at that time. Respondent is reminded of its responsibility to ensure such compliance in the future.

THE APPEAL IS DISMISSED.

1 Petitioner clarified in a subsequent submission that V.L.’s IDEA determination is not before me in this appeal and that she intended to pursue her rights under the IDEA in the appropriate venue.

2 Petitioner initially filed an appeal on or about January 10, 2012, but subsequently withdrew it. She asserts that Department staff advised her that the time to commence an appeal would not begin to run until January 10, 2012 when she received the superintendent’s response to petitioner’s request to reconsider her request for home instruction. To the extent that my determination is inconsistent with any advice allegedly provided by Department staff, I note that I am not bound by such advice in an appeal before me (Appeal of the Board of Education of the Greenport UFSD, et al., 50 Ed Dept Rep, Decision No. 16,251).

3 The Scales decision, decided in 1963, upheld the constitutionality of Education Law §1709(24) and pre-dated the enactment of Education Law §3602-c which, as noted above, does not apply here.

END OF FILE