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Decision No. 14,425

Appeal of A STUDENT SUSPECTED OF HAVING A DISABILITY, by her parents, from action of the Board of Education of the Fayetteville-Manlius Central School District regarding attendance and homebound instruction.

Decision No. 14,425

(August 4, 2000)

Ferrra, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Susan Johns, Esq., of counsel

MILLS, Commissioner.--Petitioners challenge the refusal of the Board of Education of the Fayetteville-Manlius Central School District ("respondent") to provide their daughter with homebound instruction in lieu of attending the public high school to which she is assigned. The appeal must be dismissed.

Petitioners’ daughter is seventeen years old and was assigned to attend the tenth grade in the Fayetteville-Manlius High School for the 1999-2000 school year. Respondent provided petitioners’ daughter with homebound instruction from September to November, 1998 because she appeared to suffer an allergic reaction to materials used in a construction project at the Fayetteville-Manlius High School. The construction was scheduled to be completed in November 1998. Consistent with the recommendation of the student’s allergist, petitioners allowed her to finish the 1998-1999 school year at Jamesville-DeWitt High School. She made exemplary academic progress at the Jamesville-Dewitt High School, where she earned grades in the high nineties. She was absent from attendance for one day each month from November through February, five days in March, three days in April, thirteen days in May and three days in June. She participated in interscholastic sports as a member of the Jamesville-DeWitt track team, finishing as a sectional leader in races on April 17, May 1, 15, 22 and 29, 1999.

Respondent’s transfer of petitioners’ daughter to the Jamesville-DeWitt High School was limited to the remainder of the 1998-1999 school year. By letter dated June 28, 1999, the assistant superintendent notified petitioners that, absent proper medical documentation, their daughter would again be placed in a high school setting for the 1999-2000 school year, possibly in Jamesville-DeWitt or another neighboring school district. Respondent’s Committee on Special Education (CSE) evaluated petitioners’ daughter and, at a meeting on August 2, 1999, determined that she is not a student with a disability as defined in the Individuals with Disabilities Education Act ("IDEA") because she does not have an educational disability. At the CSE meeting, petitioners were told that the CSE would look into whether their daughter had an impairment requiring accommodation under Section 504 of the Rehabilitation Act, 29 U.S.C. "794 ("Section 504"). Petitioners did not challenge the CSE’s determination.

Correspondence dated August 2 and 10, 1999 from the assistant superintendent to petitioners and their daughter’s physicians document respondent’s attempt to identify the specific chemicals in the Fayetteville-Manlius High School that may have caused the student’s allergic reaction. At the same time, the guidance counselor prepared a schedule for petitioners’ daughter to attend the tenth grade at the Fayetteville-Manlius High School during the 1999-2000 school year. When the school year began in September 1999, petitioners’ daughter was not in attendance. By letter dated September 16, 1999, respondent offered to pay for any reasonable testing to determine if the student had a disability. Petitioners commenced this appeal on September 21, 1999, seeking an interim order requiring respondent to provide their daughter with homebound instruction with textbooks in appropriate courses in the least restrictive manner. Petitioners also seek an order requiring respondent to accept existing medical evidence and documentation provided by their daughter’s physicians; to correct their daughter’s records and send retractions to their daughter’s physicians; to review instances of alleged false, misleading and delayed information with the superintendent and his staff; to review revisions to its policy on homebound instruction; and to review an opinion of the Executive Director of the Committee on Open Government. I denied petitioners’ request for an interim order on October 5, 1999.

Petitioners contend, interalia, that their daughter suffers from multiple chemical sensitivities (MCS) and that construction at the Fayetteville-Manlius High School, such as the installation of floor tile, continued into the 1999-2000 school year, making it unsafe for their daughter to attend. Petitioners contend that their daughter’s 1999-2000 schedule included courses she has already taken and left out courses she needs to graduate. Petitioners further contend that respondent has refused to correct their daughter’s schedule, provide her with a complete set of textbooks, and provide her with homework assignments.

Respondent denies petitioners’ contention regarding flooring tile installation and other construction at the Fayetteville-Manlius High School. Respondent admits that petitioners’ daughter was not provided with homework assignments and textbooks but contends that she is not eligible for homebound instruction and should attend classes whereupon any necessary course modifications would be made. Respondent contends that the petition should be dismissed because it does not contain a clear and concise statement upon which relief can be granted. Respondent further contends that petitioners have not established that their daughter suffers from MCS and that MCS is not a recognized medical or legal diagnosis. Respondent contends also that homebound instruction is not the appropriate placement for petitioners’ daughter and that it has no legal basis to provide it. Respondent argues that jurisdiction over the student’s eligibility for a specialized placement due to an alleged disability lies with a hearing officer and that the Commissioner is without jurisdiction to entertain this appeal. Likewise, respondent argues that petitioners have not appealed its CSE’s August 2, 1999 decision to an impartial hearing officer. Respondent also argues that petitioners were invited but have not pursued its Section 504 procedure for obtaining an accommodation plan, which may include homebound instruction if their daughter has a physical or mental impairment that substantially impairs a major life activity. Respondent asserts that the only other legal basis for providing homebound instruction is through its policy for services to students who are confined to home, hospital or similar institution on a temporary basis. Respondent argues that petitioners’ daughter is not so confined and that petitioners are essentially requesting permanent homebound instruction, not a temporary arrangement.

Section 275.10 of the Regulations of the Commissioner of Education contains requirements for the contents of a petition brought under Education Law Section 310:

The petition shall contain a clear and concise statement of the petitioner’s claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled. Such statement must be sufficiently clear to advise the respondent of the nature of petitioner’s claim and of the specific act or acts complained of.

Respondent accurately points out that the petition in this matter consists of 233 paragraphs and 36 exhibits, the last of which alone is subdivided into 28 "attachments" and that the petition is replete with hearsay allegations, including statements made by unattributable and unidentified persons. Although the petition is not clear and concise and the claims are difficult to discern, I find that respondent was able to address them in its answer. Petitioner is not represented by counsel in this appeal. Therefore, a liberal interpretation of the regulations is appropriate, particularly where there is no evidence of prejudice to respondents (Appeal of VanAllen, 38 Ed Dept Rep 701, Decision No. 14,122; Appeal of Smith, 37 id. 583, Decision No. 13,934; Appeal of Loughlin, 35 id. 432, Decision No. 13,591). Therefore, I decline to dismiss the appeal for failure to state a claim.

The petition, however, must be dismissed on the merits. Petitioners have the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which they seek relief (Appeal of Pulvermacher, 36 Ed Dept Rep 333, Decision No. 13,740). Pursuant to Education Law ""1805 and 1709(3), respondent is authorized to "regulate the admission of pupils, and their transfer from one class or department to another." Likewise, respondent has, in all respects, "the superintendence, management and control of the educational affairs of the district" Education Law "1709(33). Pupil placement is a matter of educational policy, which lies within the professional judgment and discretion of those charged with the administration of the public schools (Matter of Britt v. Rogers, 108 AD2d 855, citing Hoffman v. Board of Educ., 49 NY2d 121, and Matter of Board of Educ. v. Board of Educ., 80 AD2d 564).

Petitioners appear to challenge any assignment by respondent for their daughter to attend any school and demand homebound instruction for her on an indefinite basis. However, petitioners have not met their burden of proving that their daughter has a clear legal right to homebound instruction in lieu of attending the school to which she is assigned.

To the extent petitioners claim their daughter has a legal right to homebound instruction under Section 504, the appropriate remedy may be obtained through respondent’s Section 504 procedure, which includes a hearing. Petitioners provided correspondence from two physicians stating that their daughter has a medical history of sensitivity to chemicals, manifesting in symptoms such as respiratory distress and loss of concentration. Petitioners also produced a letter from a preventive services caseworker of the Onondaga County Department of Social Services opining that, based on this correspondence, sending their daughter to school would constitute a form of medical neglect. Respondent considered this correspondence. However, because there was apparently insufficient proof that either physician examined, tested or diagnosed petitioners’ daughter, respondent informed petitioners of the need for additional information and offered to pay for any reasonable testing needed to determine if the student has a disability under Section 504. Respondent also offered on August 11, 1999 to schedule a Section 504 hearing to determine if petitioners’ daughter qualifies as disabled and to determine what reasonable accommodations are necessary. Petitioners have chosen not to avail themselves of that remedy. Ultimately, 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 with a Disability, 39 Ed Dept Rep ___, Decision No. 14,369; Appeal of a Student with a Disability, 36 id. 322, Decision No. 13,736).

If petitioners disagree with the CSE’s determination that their daughter is not entitled to homebound instruction as a student with a disability, they must exhaust their remedies under the IDEA and Education Law "4404. Petitioners may request an impartial hearing pursuant to Education Law "4404(1) and 8 NYCRR "200.5(i) and if they are dissatisfied with the hearing officer’s decision, they may seek review by the State Review Officer pursuant to Education Law "4404(2) (Appeal of a Student with a Disability, 39 Ed Dept Rep 127, Decision No. 14,192; Appeal of Jane G., 38 id. 1, Decision No. 13,969; Appeal of a Student Suspected of Having a Disability, 37 id. 565, Decision No. 13,928).

Petitioners have not met their burden of proving that their daughter has a clear legal right to receive homebound instruction under respondent’s policy. 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 Douglas and Barbara K., 34 Ed Dept Rep 214, Decision No. 13,286; Appeal of Anthony M. and D.M., 30 id. 269, Decision No. 12,461). Respondent has adopted such a policy. In this case, petitioners have not proved that their daughter is unable to be educated in a school setting due to her confinement to home, hospital or similar institution. To the contrary, the record indicates that their daughter received grades in the high 90’s and competed as a member of the track team while attending the Jamesville-DeWitt High School during the 1998-1999 school year. Therefore, I cannot conclude that respondent was arbitrary, capricious, or abused its discretion in applying its policy to petitioners’ daughter.

I must dismiss on jurisdictional grounds petitioners’ claims that respondent maintains incorrect information in their daughter’s educational records because the governing law is the Family Education Rights and Privacy Act ("FERPA"). The United States Secretary of Education, and not the Commissioner of Education, has jurisdiction over alleged violations of FERPA (Appeal of a Student with a Disability, 39 Ed Dept Rep ___, Decision No. 14,277, December 21, 1999; Appeal of Lawson, 38 id. 713, Decision No. 14,124; Appeal of Schuler, 37 id. 512, Decision No. 13,915).

Similarly, I lack jurisdiction to grant petitioners relief regarding the Open Meetings Law (Appeal of Instone-Noonan, 39 Ed Dept Rep ___, Decision No. 14,275; Appeal of Goldin, 38 id. 317, Decision No. 14,043).

I have examined petitioners’ remaining contentions and find them to be without merit.