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Decision No. 12,756

Appeal of A CHILD WITH A HANDICAPPING CONDITION from action of the Board of Education of the Wappingers Central School District regarding pendency placement.

Decision No. 12,756

(July 23, 1992)

Raymond G. Kruse, P.C., attorney for respondent, Raymond G. Kruse, Esq., of counsel

SOBOL, Commissioner.--Petitioner brings two appeals regarding the application of respondent's attendance policy to her son and seeking a determination whether school officials properly complied with the appeal process contained in their policy. Because the appeals raise identical issues, they are consolidated for decision. The appeals must be dismissed.

Respondent's attendance policy provides:

All students enrolled in a course must attend at least 85% of all class sessions in order to receive credit for the course. This means that a student may be absent for no more than 28 class sessions for a full-year course meeting 5 days a week.

Students absent for more than 28 days in a full-year course apparently are placed on "audit" status for the remainder of the school year.

Petitioner's son is epileptic. During the 1989-90 school year, when the pupil was in the ninth grade, and prior to his referral and classification by the committee on special education (CSE), he was absent 53 days. Petitioner claims that her son's absences were due to his medical condition. However, it appears from the record that, despite several notices she received concerning her son's absences, petitioner never provided the district with any documentation to verify the reason for the absences. As a result, in accordance with the school district's attendance policy, petitioner's son was denied credit in all of his courses.

Respondent's policy includes an appeal process which enables parents to appeal to the superintendent of schools a decision to deny course credit and to submit information regarding a pupil's absences. Petitioner wrote to the school principal to appeal the denial of her son's course credit. In response, the principal requested medical documentation to support petitioner's claim that her son's absences were due to illness. Simultaneously, petitioner referred her son to respondent's CSE. The CSE subsequently evaluated petitioner's son, classified him as having a handicapping condition and recommended a program of home instruction and resource room. Consequently, an attendance hearing was not held. According to a decision of the State Review Officer, the pupil received home instruction throughout the summer of 1990 and passed all of his ninth grade courses (Application of a Child with a Handicapping Condition, Decision No. 92-18).

Thereafter, petitioner initiated this appeal seeking an opinion whether respondent properly applied its attendance policy to her son. Petitioner does not challenge, and I therefore will not decide, the validity of the attendance policy itself. Moreover, since the pupil was subsequently classified as a child with a handicapping condition, received special education services and completed all of his ninth grade courses, the matter is academic. To the extent petitioner seeks an advisory opinion, I will not issue purely advisory opinions in connection with appeals brought pursuant to Education Law '310 (Appeal of Children with Handicapping Conditions, 31 Ed Dept Rep 21; Application of a Child with a Handicapping Condition, 30 id. 262; Application of a Child with a Handicapping Condition, 30 id. 53).

However, I will address an important issue raised in this appeal. I note that, had petitioner established that her son's absences were attributable to his medical condition, the district would have been obligated under '504 of the Rehabilitation Act to provide reasonable accommodations to ensure that he would not be penalized academically for absences due to his condition, even if its CSE had concluded that the pupil was not educationally handicapped under the Individuals with Disabilities Act (20 USC '794; 34 CFR Part 104). Although respondent's attorney indicates in his sworn statement that there was no evidence that this pupil, in fact, had epilepsy, a report of the school psychologist submitted with the petition indicates that that diagnosis was acknowledged by the district as early as 1982. Thus, under '504, respondent was required to have in place a procedure enabling petitioner to establish that her son's absences were related to his medical condition. The record indicates that petitioner was afforded several opportunities to establish that nexus, but declined to produce any evidence which did so. Consequently, the record fails to show that the district would have deprived her son reasonable accommodation in receiving educational instruction, including opportunities to make up the work he missed due to his condition, had such a nexus been demonstrated.