The State Education Department
State Review Officer

No. 05-033

 

 

 

 

Application of the NEW YORK CITY DEPARTMENT OF EDUCATION, for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability

 

 

Appearances:

Hon. Michael A. Cardozo, Corporation Counsel, attorney for petitioner, Michael Best, Esq., of counsel

 

Advocates for Children of New York, Inc., attorney for respondent, Michael Lenaghan, Esq., of counsel

 

 

DECISION

 

Petitioner, the New York City Department of Education, appeals from the portion of the decision of an impartial hearing officer which ordered petitioner to provide breakfast and lunch to respondent’s daughter at school at no cost to the parent for the period of the child’s attendance at the Sterling School (Sterling) during the 2004-05 school year.  The appeal must be sustained. 

 

Initially, I must address a procedural matter.  I remind petitioner that federal and state regulations require each school district to maintain a verbatim record of the proceedings before an impartial hearing officer (34 CFR § 300.509[a][4]; 8 NYCRR 200.5[i][3][v]).  It was petitioner’s obligation to furnish the Office of State Review with a complete copy of the record upon filing of its petition (8 NYCRR 279.9[b]), however the petition was filed on March 18, 2005 without the hearing record.  The Office of State Review requested a complete copy of the record from petitioner on two occasions subsequent to the filing of the petition, and no response was provided to these requests.  The Office of State Review finally received a copy of the hearing record on April 20, 2005. Petitioner’s delay in submitting the hearing record was improper and impeded the review of this matter. Petitioner has been admonished in the past for failing to supply a complete hearing record and for failing to comply with the filing regulations (Application of a Child with a Disability, Appeal No. 04-073; Application of a Child with a Disability, Appeal No. 03-055).  Petitioner is once again cautioned and reminded that it is well within the discretion of a State Review Officer to dismiss an appeal by the board of education when a complete hearing record is not filed within the timeframes proscribed under the regulations (8 NYCRR 279.9[b]). 

 

I now turn to a review of the appeal on its merits. The student is currently attending Sterling, an unapproved private school, where respondent unilaterally placed her. Petitioner is not contesting the February 9, 2005 decision of the impartial hearing officer pertaining to tuition costs at the private school. The sole issue raised is whether the impartial hearing officer erred in ordering petitioner  “to provide…breakfast and lunch at school at no cost to the parent for the entire period of the student’s attendance at the Sterling school during the 2004-2005 school year.”1

 

Respondent’s daughter was ten years old and attending a combined fourth/fifth grade class at Sterling when the impartial hearing was conducted on January 14, 2005 (Tr. pp. 26, 38). The Sterling School has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities.  The child began attending Sterling on January 3, 2005 (Tr. p. 18).  Prior to placement at Sterling in January 2005, the child attended petitioner’s P.S. 63 for the beginning of the 2004-05 school year (Tr. pp. 38, 45-47).  The child’s eligibility for special education as a child with a learning disability (LD) is not in dispute (Parent Ex. E at p. 1; see 8 NYCRR 200.1[zz][6]). 

 

            Petitioner initially determined that the child was eligible for special education in October 2004 (Parent Ex. E at p. 1).  On October 19, 2004, and December 2, 2004, petitioner’s Committee on Special Education (CSE) developed the child’s individualized education program (IEP), which recommended a special class with a 12:1 student to staff ratio for all subjects, as well as the related service of counseling, one time per week, 30 minutes per session, in a 1:1 setting (Parent Ex. E at pp. 1, 11, 12, 13).  The CSE also recommended that the child receive full time instruction in a self-contained setting (Parent Ex. E at p. 3). With respect to “Participation in School Activities,” such as “lunch, assemblies, trips and/or other school activities with non-disabled students,” the CSE recommended “full participation” by the child (Parent Ex. E at p. 13).  The CSE meeting on December 2, 2004, resulted in the addition of speech/language therapy two times per week, 30 minutes per session, in a 3:1 setting (Parent Ex. D at p. 15).  Respondent attended both CSE meetings (Parent Ex. E at p. 2; Parent Ex. D at p. 2). 

 

By letter dated November 23, 2004, petitioner advised respondent, via a “Nickerson Letter,” that petitioner was not able to provide special education services to the child at that time for the 2004-05 school year (Tr. p. 37, 54, 56; Parent Ex. CC at p. 1)2.   The “Nickerson Letter” further advised respondent that she had the “legal right to place your child in an appropriate special education program in a private school which has been approved by the New York State Education Department (SED),” and that “all tuition and transportation charges will be paid by the BOE and the SED if the placement is appropriate” (Tr. p. 37, 71; Parent Ex. CC at p. 1).  Petitioner provided respondent with a list of state-approved private schools to contact (Tr. p. 58).  Apparently unable to secure a placement in a state-approved school, respondent contacted Sterling, a non-approved school (Tr. pp. 23, 58-61). 

 

By letter dated December 21, 2004, respondent advised petitioner of her intent to send her daughter to Sterling and to seek tuition payment and provision of round trip transportation for her daughter from her home to Sterling (Parent Ex. A at p. 1).   By letter of the same date, respondent requested an impartial hearing to address the issues of tuition and round trip transportation pursuant to the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1451 [1997]) and Section 504 of the Rehabilitation Act of 1973 (§ 504) (29 U.S.C. §§ 701-796[l][1998]) (Parent Ex. C at pp. 1-2).  By letter dated January 7, 2005, respondent amended her request for an impartial hearing to include a request for “payment in the amount of $5 per day3 to cover the cost of breakfast and lunch,” because Sterling “does not participate in the National School Lunch Program or the School Breakfast Program” (Parent Ex. B at pp. 2-3).  Respondent claimed in her request for an impartial hearing that her daughter would be “denied the free lunch and breakfast to which she is entitled through these programs and that are available in all New York City public schools” (Parent Ex. B. at p. 2).  Respondent did not raise any issues with respect to the special education or related services incorporated into the child’s IEP developed by petitioner (see Tr. pp. 38-79; Parent Exs. A, B, C).

 

At the hearing on January 14, 2005, respondent claimed that petitioner was required to provide the student a “free lunch” at the private school (Tr. p. 76). Respondent argued that the failure to do so discriminated against the child in a manner prohibited by section 504 because meals were provided to students, including students with disabilities, in public schools (Tr. pp. 75-77). At the hearing, respondent also argued that “getting breakfast and lunch is part of an appropriate education” under the IDEA (Tr. 77-78).

 

The Director of Sterling testified on behalf of respondent (Tr. pp. 7-36).  The Director testified that Sterling does not provide or serve breakfast or lunch to enrolled students due to the prohibitive costs associated with the employment of a nutritionist and modifications that would be necessary to the existing kitchen at Sterling (Tr. p. 24).  She testified that Sterling did not participate in the federal free lunch and breakfast programs because it cannot cook and prepare food to serve to the students (Tr. pp. 24-25).  The Director testified that all of Sterling’s students bring lunches to school (Tr. p. 24).  The child’s mother testified that when the child attended petitioner’s public school, the family income met the eligibility requirements allowing the child to receive a free lunch throughout her public school education (Tr. pp. 62-69; Parent Ex. DD). 

 

At the hearing, petitioner conceded that the child was not offered placement in the public school and therefore, a “Nickerson Letter” was issued and opined that respondent was unable to find a spot for her daughter in a state approved school (Tr. p. 37).  Petitioner cross-examined respondent’s witnesses at the hearing, but offered no evidence and called no witnesses on behalf of petitioner. 

 

The impartial hearing officer rendered her decision in favor of respondent on February 9, 2005 (IHO Decision, p. 6).  The impartial hearing officer found that petitioner did not offer an appropriate public school placement as required by the IDEA and, therefore, denied the child a free appropriate public education (FAPE) (IHO Decision at p. 5).  Pursuant to the issuance of the “Nickerson Letter,” the impartial hearing officer found that although respondent made diligent efforts to place her daughter in a state-approved non-public school, respondent was unable to do so (id.).  The impartial hearing officer also determined that respondent met her burden with respect to demonstrating the appropriateness of the Sterling School in meeting her daughter’s educational needs (id.).  The impartial hearing officer concluded that petitioner did not contest respondent’s request for tuition and speech/language therapy costs and granted respondent’s requests.  Petitioner does not appeal the impartial hearing officer’s decision with respect to the above-mentioned determinations. 

 

In addition, the impartial hearing officer granted respondent’s request for the provision of breakfast and lunch to the student by petitioner for the 2004-05 school year, grounding her decision on a lack of opposition by petitioner (IHO Decision, p. 6).  On appeal, petitioner requests that this determination be vacated.  

 

Petitioner’s appeal is limited solely to the hearing officer’s decision with respect to the provision of breakfast and lunch to the child for the 2004-05 school year while the child attends Sterling (Pet. ¶ 10, 11, 14).  Specifically, petitioner alleges that free breakfast and lunch are not “related services” and are not entitlements under the IDEA (id. ¶ 10, 11). Additionally, petitioner asserts that a child’s entitlement to a breakfast and lunch pursuant to a National School Breakfast and National School Lunch Programs, at no cost to the child in public school, does not automatically transfer to a unilateral placement in a private school (id. ¶ 14). Petitioner asserts that the impartial hearing officer erred and exceeded the scope of her authority in granting such an award (id. ¶ 12, 13, 15). 

 

Respondent contends, on appeal, that the hearing officer appropriately exercised her authority in granting the award of breakfast and lunch because the request was premised on alleged violations of the IDEA and the IDEA’s implementing regulations, and thus, a State Review Officer has jurisdiction over this issue on appeal (Answer ¶¶ 41-47).  Alternatively, respondent argues that a State Review Officer has no jurisdiction to review this issue on appeal because “it is clear that [the child] lost her right to take part in the free meals program as result of her disability,” which she asserts states a claim under section 504, and New York State Law “makes no provision for administrative review of hearing officer decisions involving Section 504 claims” (Answer ¶¶ 48-50). 4  

 

The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487) is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]).  A FAPE consists of special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[8][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]).   

 

An IEP must include a statement of the special education and related services and supplementary aids and services to be provided to or on behalf of the student, as well as a statement of the program modifications or supports for school personnel that will be provided to the student (34 C.F.R. § 300.347[a][3]; see 8 NYCRR 200.4[d][2][iv]).  Such education, services and aids must be sufficient to allow the student to advance appropriately toward attaining his or her annual goals (34 C.F.R. § 300.347[a][3][i]; see 8 NYCRR 200.4[d][2][iv][a]). (05-030) "[S]pecial education and related services must be provided in the least restrictive setting consistent with a [student's] needs" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]). 

The terms “special education,” “related services,” and “supplementary aids and services,” have all been defined by statute and/or regulations. 

“Special education” means “specially designed instruction which includes special services or programs…and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability.” (N.Y. Educ. Law § 4401[1], [2]; 8 NYCRR 200.1[ww]); see also 20 U.S.C. § 1401[25][A], [B]; 34 C.F.R. § 300.26).

The term “related services”

means developmental, corrective, and other supportive services as are required to assist a student with a disability and includes speech-language pathology, audiology services, psychological services, physical therapy, occupational therapy, counseling services, including rehabilitation counseling services, orientation and mobility services, medical services as defined in this section, parent counseling and training, school health services, school social work, assistive technology services, other appropriate developmental or corrective support services, appropriate access to recreation and other appropriate support services.

(8 NYCRR 200.1[qq]; see also 20 U.S.C. § 1401[22]; N.Y. Educ. Law § 4401[2][k]; 34 C.F.R § 300.24[a], [b]).

            “Supplementary aids and services” means aids, services, and other supports that are provided in regular education classes or other education-related settings to enable students with disabilities to be educated with nondisabled students to the maximum extent appropriate in accordance with the least restrictive environment (8 NYCRR 200.1[bbb]; see also 20 U.S.C. § 1401[29]; 34 C.F.R. § 300.28).

            Petitioner’s arguments on appeal are persuasive. The provision of breakfast and lunch at no cost to a student with a disability, unrelated to any special education need, is not required by the IDEA or Article 89 of the Education Law. I find that the impartial hearing officer exceeded her authority and erred in directing the provision of breakfast and lunch at the private school.

            There is no evidence in the record to suggest that respondent’s request for the provision of breakfast and lunch for her daughter can be characterized as “special education,” a “related service,” or “supplementary aids and services.”  Moreover, there is no evidence that respondent’s daughter requires any specialized nutritional services in order to benefit from her special education.  Finally, there is no evidence that the request for breakfast and lunch was related to any of the child’s special education needs.   

Based upon the above, I am not convinced that respondent’s request for the provision of breakfast and lunch for her daughter falls within the scope of the IDEA or its implementing regulations.  “A request is beyond the reach of the IDEA if it is made for personal reasons unrelated to the student's educational needs” (Ms. S. v. Scarborough Sch. Comm., 2005 WL 757269, *2 [D.Me. 2005]; see Fick v. Sioux Falls Sch. Dist., 337 F.3d 968, 969-70 [8th Cir. 2003][concluding that the defendant school district did not violate the IDEA when it refused a mother's request to change her daughter's drop-off address from her home to an after-school day care center because the request was made for personal rather than educational reasons]; see also Gonzalez v. Puerto Rico Dep’t of Educ., 254 F.3d 350, 352 [1st Cir. 2001][noting that "educational benefit is indeed the touchstone in determining the extent of governmental obligations under the IDEA"]). Moreover, the United States Department of Education, Office of Special Education Programs (OSEP) has opined that an impartial hearing officer has the authority to “grant any relief he/she deems necessary…to ensure that a child receives the FAPE to which he/she is entitled” but that the relief must be consistent with a the entitlement to a FAPE and “should not impose obligations that would go beyond entitlement” (Letter to Kohn, 17 IDELR 522 [OSEP1991]). Here the provision of free breakfast and lunch is unrelated to the provision of a FAPE.  

 

I also concur with petitioner’s contention that the impartial hearing officer erred in apparently concluding that the child’s entitlement to breakfast and lunch pursuant to federal nutrition programs transferred with the child to the private school and that the student remained eligible for these services, thus requiring provision of meals by petitioner to respondent at Sterling. The basis for respondent’s claim, and the relief ordered by the impartial hearing officer, appear to be premised upon the child’s entitlement under federal nutrition programs, not upon her entitlement under the IDEA.5 An impartial hearing officer is authorized to hear matters arising under the IDEA and Article 89 of the Education Law relating to the identification, evaluation or educational placement of a student with a disability, or the provision of a free appropriate public education to the child (34 C.F.R. § 300.507 [a]; 8 NYCRR 200.5 [i]). It is not within the impartial hearing officer’s authority to interpret the child’s entitlement and petitioner’s obligations under the National School Lunch or School Breakfast Programs and issue an order pertaining to these rights and obligations. She erred in doing so. Whether respondent’s daughter’s entitlement under the National School Lunch Program or School Breakfast Program continues at Sterling is more properly determined through the use of the separate due process procedures available to contest eligibility determinations under these nutrition programs.6

 

In conclusion, I note that the appeal in this matter arises solely from petitioner’s failure to provide an appropriate public school placement to this child. There is no dispute that petitioner failed to offer an appropriate public school program and placement to the child after determining that special education services were appropriate. There is nothing in the record to suggest that respondent’s child requires a private school placement to receive a FAPE.  Under my authority pursuant to Education Law § 4404 (2), assuming respondent’s child remains a resident of petitioner’s district, I will direct petitioner to ensure that it offers the child an appropriate placement and program in public school for the 2005-06 school year within thirty days.

 

            I have considered petitioner’s and respondent’s remaining contentions and I find them to be without merit. 

            THE APPEAL IS SUSTAINED.

 

IT IS ORDERED, that the impartial hearing officer’s decision is annulled to the extent that it ordered petitioner to provide breakfast and lunch to respondent’s daughter at Sterling at no cost to the parent for the period of the child’s attendance at Sterling during the 2004-05 school year; and

 

IT IS FURTHER ORDERED, if it has not done so already, that petitioner shall convene a CSE within thirty calendar days from the date of this decision and shall recommend an appropriate program and secure an appropriate public school placement in the least restrictive environment for the child for the 2005-06 school year.

 

 

Dated:

Albany, New York

 

__________________________

 

May 16, 2005

 

PAUL F. KELLY

STATE REVIEW OFFICER

 

 

1 It is not clear from the wording of the impartial hearing officer’s order whether petitioner is directed to: (1) prospectively pay respondent for breakfast and lunch (see Application of the Bd. of Educ., Appeal No. 04-037 [concluding that an order by an impartial hearing officer or a State Review Officer for a district to pay tuition costs at a placement not approved by the state is permissible only as an equitable remedy to reimburse parents once they have obtained and paid for appropriate services]; see also 8 NYCRR 200.7); or (2) prepare and deliver meals to the student at the private school twice a day.

 

2 A “Nickerson Letter” is a letter from the Department of Education (DOE) to a parent authorizing the parent to immediately place the child in an appropriate special education program in any state-approved private school, at no cost to the parent (see Jose P. v. Ambach, No. 79 Civ. 270 [E.D.N.Y. Jan. 5, 1982]).  The remedy of a “Nickerson Letter" is intended to address the situation in which a child has not been evaluated or placed in a timely manner (see Application of a Child with a Disability, Appeal No. 02-075; Application of a Child with a Disability, Appeal No. 00-092).

 

3 At the hearing, respondent’s counsel stated that he did not know “where [he] came up with that [dollar amount]” (Tr. p. 68).

 

4 A review of the hearing officer’s decision reveals that the award of relief was not based upon any determination there was a violation of section 504.  In any event, New York State Education Law makes no provision for state-level administrative review of impartial hearing officer decisions in section 504 hearings and a State Review Officer does not review section 504 claims (Application of a Child Suspected of Having a Disability, Appeal No 03-094; Application of a Child with a Disability, Appeal No. 00-051; Application of a Child with a Disability, Appeal No. 00-010; Application of a Child with a Disability, Appeal No. 99-10).

 

5 Respondent cites no provision pertaining to the National School Lunch or National School Breakfast Programs in the IDEA or Article 89 of the Education Law.

 

6 See 42 U.S.C. § 1751, et seq.; 42 U.S.C. § 1771, et seq.  Challenges to eligibility for services provided by the National School Lunch and National School Breakfast Programs can be made pursuant to 7 C.F.R. § 245.8.