Appeal of A STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Canastota Central School District regarding home instruction.

Decision No. 17,276

(December 6, 2017)

Hogan, Sarzynski, Lynch, DeWind, & Gregory, LLP, attorneys for respondent, Ed Sarzynski, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals a determination of the Board of Education of the Canastota Central School District (“respondent”) denying her request for home instruction for her child (“the student”).  The appeal must be dismissed.

While the record is not entirely clear, it appears that the student was attending school in a “small contained classroom[1]” in respondent’s district until October 5, 2017, after which petitioner “kept the student home” because on October 4, 2017, “two students (from the same family) [came] to school with a bed bug found on each.”  The record indicates that one of those students was in the same classroom as the student.

On October 17, 2017, petitioner, on behalf of the student, requested home tutoring and submitted a letter dated the same from the student’s neurologist.  The letter requested that the district “arrange home tutoring until issue of bed bugs in other students [are] addressed due to patients [sic] MAST cell dysfunction and immunodeficiency.”  By email dated October 20, 2017, the principal of respondent’s junior-senior high school (“principal”) denied petitioner’s request and attached a letter addressed to the student’s neurologist.  The letter included a description of measures the district had taken to “[manage] this event” such as, following the “guidelines” of the Department of Health and the Environmental Protection Agency, inspecting and cleaning classrooms, and requiring “affected students” to be checked daily by the school nurse.  The letter further stated that district hired a pest management control company “to do a thorough investigation” of the district’s buildings on October 7, 2017 and that “[n]o bedbugs or evidence of bed bugs was found....”  

By email dated October 20, 2017, petitioner wrote to the principal and stated that she was “appealing this decision....”  By email dated October 23, 2017, the principal responded to petitioner and stated that the district believed that the “issue of bedbugs has been addressed and that there is no threat to [the student] and his health.”  Petitioner then submitted a “revised” note from the student’s neurologist.  The letter was also dated October 17, 2017 and stated:

Due to the patients [sic] diagnosis it is advised that he receives home tutoring until bed bug situation in classroom is cleared up.  If [the student] is bitten by a bed bug it could cause him to have a severe reaction.

By email dated October 26, 2017, the principal denied petitioner’s second request for home tutoring.  The email stated that “the reason for denying the home tutoring request is because we have been assured that there is no threat to [the student’s] health.” 

On October 31, 2017, petitioner submitted a third note from the student’s neurologist which stated:

Due to the patients [sic] diagnosis it is advised that he receives home tutoring until bed bug situation at the affected family’s home is cleared up.  If [the student] is bitten by a bed bug it could cause him to have a severe reaction.

By email dated November 1, 2017, the principal denied petitioner’s third request for home tutoring because the district did “not believe there to be a threat to your child while here in school.”  This appeal ensued.  Petitioner’s request for interim relief was denied on November 15, 2017. 

Petitioner argues that “[n]either the school district or school physician are qualified to make medical judgements on [the student’s] medical health....”  She avers that if a bed bug “feeds off” the student, it could cause “a devastating reaction or possible anaphylactic reaction.”  Petitioner requests “[s]uch other relief as the Commissioner deems just and proper.”

Respondent argues that the appeal should be dismissed in its entirety because the decisions to deny home tutoring were not arbitrary, capricious, or unreasonable and because the petition was not verified.  Respondent also objects to petitioner’s request to submit additional information. 

I will first address the procedural matters.  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).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  A party seeking to file affidavits, exhibits and other supporting papers pursuant to §276.5 shall submit an application to my Office of Counsel, which shall state the reason(s) why such affidavits, exhibits or other supporting papers are necessary and include a copy of each such affidavit, exhibit or other supporting papers, together with proof of service of the application and the proposed exhibits, affidavits or other supporting papers upon all parties in accordance with §275.8(b) of the Commissioner’s regulations (8 NYCRR §276.5[a]). 

By submission dated November 27, 2017, petitioner requests that I consider “a statement of facts and law” and “medical information” about the student’s diagnosis, “educational information” about bed bugs, an email from the superintendent dated October 7, 2017, and a bed bug inspection report from a pest management control company dated October 9, 2017.[2]  Although served on respondent by mail, petitioner gives no explanation as to why the information could not have been provided with the petition.  A review of the correspondence indicates that petitioner is attempting to add new claims or factual assertions that could have been asserted in her petition.  Accordingly, I have not considered petitioner’s submission dated November 27, 2017.[3]

To the extent that petitioner’s submission dated November 27, 2017 could be considered a reply, 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).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions 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). Further, a reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR §275.14[a]). If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (8 NYCRR §275.14[a]; Appeal of a Student with a Disability, 48 Ed Dept Rep 98, Decision No. 15,803; Appeal of Jacoby, 47 id. 321, Decision No. 15,710).

In this case, the affidavit of service submitted by respondent indicates that, on November 7, 2017, the answer was served by United Parcel Service for overnight delivery.  The affidavit of service submitted by petitioner indicates that the above-described submission was served by regular mail on November 27, 2017.  Because the answer was not served by mail, but was served by private express delivery service for overnight delivery, the date of receipt would be November 8, 2017 (Appeal of M.C., 55 Ed Dept Rep, Decision No. 16,850).  Therefore, to the extent petitioner’s submission could be considered a reply, the documents are untimely and I have not considered them.

Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46 id. 260, Decision 15,501). Respondent’s contention that the petition was not properly verified is without merit.  The petition filed with my Office of Counsel contains the required affidavit of verification.  Accordingly, I will not dismiss the petition on that ground (Appeal of P.E., 57 Ed Dept Rep, Decision No. 17,232). 

To the extent petitioner is raising special education placement claims governed by the IDEA and Education Law Article 89, claims brought to enforce rights under the IDEA and Article 89 of the Education Law must be addressed through the due process provisions of the IDEA (20 USC §1415) and Education Law §4404; such claims may not be addressed in an appeal brought pursuant to Education Law §310 (Appeal of a Student with a Disability, 56 Ed Dept Rep, Decision No. 17,025; Appeal of a Student with a Disability, 56 id., Decision No. 16,956; Appeal of R.J.K. and L.K., 50 id., Decision No. 16,232).  Therefore, I lack jurisdiction to entertain such claims.

To the extent that petitioner bases her claims regarding the student’s entitlement to home instruction on the requirements of §504 of the Rehabilitation Act, 29 U.S.C. §794 (“§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 K.L., 53 Ed Dept Rep, Decision No. 16,627; Appeal of a Student Suspected of Having a Disability, 40 id. 75, Decision No. 14,425; Appeal of a Student with a Disability, 39 id. 752, Decision No. 14,369).  Therefore, I lack jurisdiction to entertain such claims.

As noted above, to the extent petitioner is raising IDEA or §504 claims, they are not properly before me. Therefore, to prevail in this appeal, any entitlement to home instruction must be based upon State law or district policy.  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).

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.”  It is well settled that 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 K.L., 53 Ed Dept Rep, Decision No. 16,627; Appeal of a Student Suspected of Having a Disability, 40 id. 75, Decision No. 14,425; Appeal of Douglas and Barbara K., 34 id. 214, Decision No. 13,286).

Neither party has submitted respondent’s policy on homebound instruction, therefore, I have taken judicial notice of such policy, which is published on the district’s official website.[4]  Respondent’s policy states:

Homebound instruction is a temporary service provided on an individual basis to students who are unable to attend school due to a short-term physical, mental or emotional illness or injury as substantiated by a licensed physician or licensed psychologist.

The policy further states that a parent must provide the district with a statement from a licensed physician or a licensed psychologist which “[c]learly indicates that the student will be unable to attend school for at least ten school days” and “[c]learly specifies the diagnosis necessitating home instruction.”  Instead, the documentation from the student’s neurologist only requested that the student receive home instruction until “the bed bug situation ... is cleared up.”  Respondent states that each request was denied because it “had successfully followed all protocols to eliminate bed bugs in school buildings.” 

In support of its contentions, respondent submits an affidavit from the school physician who states:

[T]he medical notes given did not support granting the request for home tutoring because the bed bug situation had cleared as a result of all of the efforts which the [d]istrict followed, and continues to follow, to prevent a reoccurrence.   

Petitioner has not met her burden of proving that the student has a clear legal right to receive homebound instruction under respondent’s policy. While nothing in this decision should be read to minimize the seriousness of petitioner’s concerns about the student’s health, other than petitioner’s conclusory assertions, the petition is devoid of any proof in support of petitioner’s contentions.  Therefore, on this record, I cannot conclude that respondent’s decision was arbitrary, capricious, or unreasonable.

THE APPEAL IS DISMISSED.

END OF FILE