The Univeristy of the State of New York Emblem
The State Education Department
State Review Officer

 

No. 05-108

 

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:

Michael Best, Special Assistant Corporation Counsel, attorney for petitioner, Hilary Steuer, Esq., of counsel

Advocates for Children of New York, Inc., attorney for respondent, Jennifer Pringle, Esq., of counsel

DECISION

Petitioner, the New York City Department of Education (district), appeals from the decision of an impartial hearing officer, which ordered petitioner to provide for the cost of breakfast and meals, totaling $1,110.00, during the student's attendance at the Karafin School (Karafin) during the 2005-06 school year.  The appeal must be sustained.

Respondent's daughter was 14 years old when the impartial hearing occurred on August 24, 2005, and had been accepted to enter ninth grade at Karafin for the 2005-06 school year (IHO Decision, p. 2).  The Commissioner of Education has approved Karafin as a school with which school districts may contract to instruct students with disabilities. (8 NYCRR 200.7).

Petitioner initially classified the student as eligible for special education following an impartial hearing in fall 2004 (see Parent Ex. A at p. 2).  The student's eligibility for special education programs and classification are not in dispute in this appeal (id.; 8 NYCRR 200.1[zz][6]).

By letter dated July 27, 2005, respondent requested an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA)1 and section 504 of the Rehabilitation Act (29 U.S.C. 701-796[l][1998])," due to petitioner's alleged failure to provide a free appropriate public education (FAPE) (Parent Ex. A at p. 1).

Because it was "not able to provide special education services" to the student, petitioner issued a "Nickerson letter"2 to respondent, dated August 10, 2005, giving respondent the right to place her daughter in "a private school, which has been approved by the New York State Education Department" and providing for the payment of  "tuition and transportation charges" if the placement was appropriate  (Dist. Ex. 1).  The letter also advised that petitioner would continue to "make every effort to find an appropriate special education program for [respondent's] child" (id.).

Petitioner's Committee on Special Education (CSE) convened on August 18, 2005, to develop the student's individualized education program (IEP) for 2005-06 (see Parent Ex. B at pp. 1-2).  The CSE recommended placement at a New York State approved nonpublic day school and identified Karafin in the IEP as the proposed placement (Parent Ex. B. at p. 1).  The IEP does not indicate a need for services related to the provision of meals.

The impartial hearing went forward on August 24, 2005 (Tr. p. 1).  The only issue presented to the impartial hearing officer was whether petitioner was required to provide the cost of breakfast and lunch for the student during her attendance at Karafin during 2005-06 (Tr. pp. 8, 9-10).  Both parties presented testimonial and documentary evidence.   

Petitioner argued at the impartial hearing that it is not required under the IDEA to provide meals to the student while she attends Karafin, that the provision of meals is governed by a separate entitlement program, and that respondent's request for meals is, therefore, beyond the scope of the IDEA (Tr. pp. 9-10, 38-39).

Respondent, the student's mother, argued that as a student at petitioner's schools, her daughter was eligible for and participated in the free breakfast and lunch programs offered at petitioner's schools (Tr. p. 16).  Respondent further argued that since petitioner failed to offer a FAPE to the student, her daughter must attend a school in 2005-06 that does not participate in the free breakfast and lunch programs, and respondent does not have the income or other means to provide these meals to the student while she attends Karafin in 2005-06 (Tr. pp. 7, 14-17).

The director of Karafin testified that Karafin does not participate in the free breakfast and lunch programs, nor does it provide meals to its students (Tr. pp. 11-12).  Students either bring their own lunch or purchase meals from a lunch truck (Tr. p. 12, 13).  With respect to breakfast, he testified that approximately 50 of Karafin's 80 students are "Board of Ed students," and some students "will actually bring stuff with them and eat it here," but "[m]ost will eat breakfast at home" (Tr. p. 13).

The impartial hearing officer rendered her decision in favor of respondent on September 19, 2005, and ordered petitioner to provide for the cost of breakfast and meals for the student while she attends Karafin during 2005-06, totaling $1,110.00 (IHO Decision, p. 4).  The impartial hearing officer further directed that in the "absence of a policy or funding mechanism for providing the meals directly, the payment shall be made to [the student's] mother" (id.).

The impartial hearing officer noted in her decision that the student's advocate "expressly requested that the dispute be decided with reference to section 504 of the federal Rehabilitation Act, but at any rate contends that both that statute and the IDEA support an order declaring the district responsible for payment of breakfast and lunch to eligible special education students" (IHO Decision, p. 3).  The impartial hearing officer based her decision upon a review of section 504, which she concluded supported respondent's contentions (id.).  She also noted in her decision that "providing meals or the cost thereof seems consistent with the policy [the district] already follows with respect to transportation" because transportation and meals fall under the category of "nonacademic services" under C.F.R. Section 300.306 (IHO Decision, pp. 3-4).

To the extent that the impartial hearing officer's decision was based upon alleged violations of the IDEA or the IDEA's implementing regulations, petitioner appeals the determination that it must provide for the cost of breakfast and meals, totaling $1,110.00, during the student's attendance at Karafin during the 2005-06 school year.  Specifically, petitioner alleges that free breakfast and lunch are not "related services" or entitlements under the IDEA and that the impartial hearing officer exceeded the scope of her authority in granting such relief.  Moreover, petitioner alleges that when previously presented on appeal with the issue of the provision of meals to a child in similar circumstances, it was held that a request for the provision of meals fell outside the scope of the IDEA and that it was beyond the scope of the impartial hearing officer's authority to determine a child's entitlement and a school district's obligations under the National School Lunch and Free Breakfast Programs (see Application of the Bd. of Educ., Appeal No. 05-033).  

Respondent contends on appeal that the impartial hearing officer appropriately exercised her authority in granting the relief, as the request was premised on alleged violations of the IDEA and the IDEA's implementing regulations, and because impartial hearing officers have broad discretion in fashioning relief to ensure that a student receives a FAPE.  Respondent also argues that a FAPE includes the provision of "nonacademic services," as defined in 34 C.F.R. 300.306, and that the list of "nonacademic services" is further defined under "nonacademic settings," as set forth in 34 C.F.R. 300.553, to include the provision of "meals."

A purpose of the IDEA (20 U.S.C. 1400, et seq.) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. 1400[d][1][A]).  A FAPE includes 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[9][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]).  "[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]).

In the instant appeal, the impartial hearing officer relied upon section 504 of the Rehabilitation Act to support her conclusion that petitioner must provide funding for breakfast and lunch while the student attends Karafin in 2005-06 (IHO Decision, p. 3).  New York State Education Law makes no provision for state-level administrative review of hearing officer decisions in section 504 hearings and a State Review Officer does not review section 504 claims (Application of the Bd. of Educ., Appeal No. 05-033; 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).  Therefore, to the extent that the impartial hearing officer awarded funding for the student's breakfast and lunch pursuant to section 504, I have no jurisdiction to review the decision.

However, the impartial hearing officer also concluded that "meals" fell within "nonacademic services" as set forth in 34 C.F.R. 300.306 and that, therefore, respondent's daughter should, even in the absence of a related specialized need, be provided meals by petitioner (IHO Decision, p. 4). This interpretation of the regulations is inconsistent with the IDEA's statutory purpose of providing specialized instruction and services to meet identified special education needs.  Nonacademic and extracurricular services that may be provided are included in 34 C.F.R. 300.306.  Pertaining to the least restrictive environment, 34 C.F.R. 300.533 speaks to the settings for such services. The purpose of this regulation is to ensure that nonacademic and extracurricular services and activities are provided in the least restrictive environment and to "emphasize the importance of providing such services in as integrated a setting as possible, especially for children whose educational needs necessitate their being solely with disabled children most of the day" (see Nonacademic Settings, 64 Fed. Reg. 12640 [March 12, 1999]. Neither regulation requires an interpretation that eligibility for IDEA services mandates the general provision of meals.

I do not agree with the impartial hearing officer's conclusion that the IDEA or the IDEA's "nonacademic services" regulation supports her decision to order petitioner to fund the student's meals as granted under her section 504 analysis.   I find no persuasive evidence in the record, nor does respondent point to any relevant interpretations of these regulations, to support this argument (see Application of the Bd. of Educ., Appeal No. 05-113).  The facts presented herein involve a student where neither her IEP nor any evaluations suggest that her special education needs require any nutrition services.

As noted by petitioner, the issue of the provision of meals to a child with a disability was previously addressed in Application of the Bd. of Educ., Appeal No. 05-033.  That decision specifically held that "[t]he 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" (Application of the Bd. of Educ., Appeal No. 05-033).  In that case, based upon the statutory and/or regulatory definitions of "special education," "related services," and "supplementary aids and services," it was stated that:

 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.

(id.).  As petitioner correctly noted, Appeal No. 05-033 also held that the impartial hearing officer exceeded her authority and erred in directing the district to provide lunch to the child (id.).  The holding in Appeal No. 05-033 applies to the instant case.

Based upon the record in the present appeal, I find no evidence to suggest that the student required any specialized nutrition services in order to benefit from her special education or that respondent's request for breakfast and lunch were related to any of the student's special education needs.  Therefore, to the extent that the impartial hearing officer's decision relied upon the IDEA or the IDEA's implementing regulations as a basis for her determination, petitioner's appeal is sustained.

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 for the cost of breakfast and meals, totaling $1,110.00, during the student's attendance at the Karafin School during the 2005-06 school year.
 

  Dated:

Albany, New York

__________________________

December 22, 2005

PAUL F. KELLY
STATE REVIEW OFFICER

 

1  On December 3, 2004, Congress amended the IDEA, however, the amendments did not take effect until July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 [IDEIA], Pub. L. No. 108-446, 118 Stat. 2647).  As the relevant events in the instant appeal took place after the effective date of the 2004 amendments, the provisions of the IDEIA apply and the citations contained in this decision are to the newly amended statute.

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).