Decision No. 18,067
Appeal of K.V., on behalf of her child, from action of the Board of Education of the Northeastern Clinton Central School District regarding homebound instruction.
Decision No. 18,067
(January 10, 2022)
Harris Beach, PLLC, attorneys for respondent, Douglas E. Gerhardt, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals a determination of the Board of Education of the Northeastern Clinton Central School District (“respondent”) denying her request for homebound instruction for her child (“student”). The appeal must be dismissed.
The student entered ninth grade in respondent’s district in the 2020-2021 school year. During that year, respondent offered students the choice of in-person or fully remote instruction (i.e., instruction at home via an online platform). Petitioner enrolled the student in the remote program. Petitioner alleges that, thereafter, the student experienced severe migraines when looking at a screen for a prolonged period of time.
On September 11, 2020, petitioner requested that the student receive daily homebound instruction from 9:00 a.m. to 2:00 p.m. due to the student’s “ongoing ... medical issues.” Petitioner specifically requested that the instruction be delivered by a particular teacher employed by the district. While considering petitioner’s request, respondent provided the student with packets of work that did not always require computer use. Additionally, beginning on or around November 9, 2020, respondent provided the student with one hour of daily tutoring by telephone.
By letter dated November 10, 2020, respondent’s superintendent denied petitioner’s request for homebound instruction. He concluded that petitioner had not demonstrated that the student required homebound instruction due to a temporary medical condition. However, he advised petitioner that respondent would continue to provide the student with one hour of daily tutoring in addition to remote instruction. The superintendent further noted that, if petitioner provided consent, respondent would evaluate the student’s eligibility for special education under the Individuals with Disabilities Education Act (“IDEA”). This appeal ensued. Petitioner’s request for interim relief was denied on December 28, 2020.
Petitioner contends that the student is entitled to homebound instruction based upon her medical condition. Petitioner reiterates her request for five hours per day of home tutoring for the entirety of the student’s high school career.
Respondent contends that petitioner’s claims implicate Section 504 of the Rehabilitation Act of 1973 (“Section 504”), a statute over which the Commissioner lacks jurisdiction. Respondent further contends that it reasonably concluded that the student does not satisfy the criteria for homebound instruction.
First, I must first address a procedural matter. 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 petitioner’s 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.
Turning to the merits, a student is entitled to receive homebound instruction when she or he is temporarily “unable to be educated in a school setting due to ... confinement to home, hospital or similar institution” (Appeal of a Student Suspected of Having a Disability, 40 Ed Dept Rep 75, Decision No. 14,425; see Education Law § 1709 (24); 8 NYCRR 175.21). 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 has not proven that the student is “unable to be educated in a school setting” or temporarily “confine[d]” to home so as to be eligible for homebound instruction (Appeal of a Student Suspected of Having a Disability, 40 Ed Dept Rep 75, Decision No. 14,425). Instead, the record reflects that the student availed herself of respondent’s full-time remote instruction for the 2020-2021 school year and that respondent, in its discretion, accommodated her further by providing supplemental tutoring. There is no indication that participation in respondent’s remote program was conditioned upon a showing of medical need.
It appears, instead, that petitioner desires a permanent accommodation for an ongoing medical condition to allow the student to access remote learning. The record reflects that the student’s vision impairment, and related migraines, are chronic in nature. As respondent indicates, petitioner may request an accommodation for these conditions through Section 504. That law prohibits discrimination against individuals with disabilities who are “excluded from … participation in, … denied the benefits of, or … subjected to discrimination under any program or activity receiving Federal financial assistance,” which includes public schools (29 USC § 794 [a]). Should petitioner pursue that route, the Commissioner of Education has no authority to review Section 504 claims in an appeal under Education Law § 310. Enforcement of Section 504 is within the jurisdiction of the federal courts, the U.S. Department of Justice, and the U.S. Department of Education (Appeal of C.N. and C.N., 60 Ed Dept Rep, Decision No. 17,954; Appeal of a Student with a Disability, 36 id. 322, Decision No. 13,736).
In light of this determination, I need not address the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
END OF FILE
 It appears from the record that respondent completed an evaluation under the IDEA while this appeal was pending.
 Petitioner asserts as much in the petition, stating: “The letter sent to me by the district Superintendent ... states my daughter[’]s medical conditions are only temporary[,] which is untrue ....”
 Both laws require parental consent prior to evaluation. See Letter to Durheim, 27 IDELR 380 [OCR 1997] [Section 504]; 20 USC § 1414 and 34 CFR 300.300 [IDEA]).
 Additionally, Section 504 claims alleging a denial of a free appropriate public education are subject to IDEA’s exhaustion procedures (20 USC § 1415 [l]; see L.K. v Sewanhaka Cent. High Sch. Dist., 641 Fed Appx 56 [2d Cir 2016]).