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

 

No. 05-111

 

 

Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education

 

 

Appearances:

Advocates for Children of New York, Inc., attorney for petitioner, Matthew Lenaghan, Esq., of counsel

Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Thaddeus Hackworth, Esq., of counsel

 

DECISION

Petitioner appeals from that portion of a decision of an impartial hearing officer which denied petitioner's request for respondent to pay the cost of the student's lunch during his attendance at The Smith School (Smith) for the 2005-06 school year.  The appeal must be dismissed.

At the time of the impartial hearing, the student was 13 years old (Tr. p. 8).  The Commissioner of Education has not approved Smith as a school with which school districts may contract to instruct students with disabilities (see 8 NYCRR 200.7).  The student's eligibility for special education programs and classification as a student with a learning disability are not in dispute in this appeal (8 NYCRR 200.1[zz][6]).

By letters dated June 20, 2005 and July 18, 2005 (Parent Exs. A, B), petitioner requested an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1451 [1997])1 and section 504 of the Rehabilitation Act (§ 504) (29 U.S.C. §§ 701-796[l] [1998]) due to respondent's alleged failure to timely evaluate the student to offer a free appropriate public education (FAPE)2 to the student (Parent Exs. A, B).  Petitioner requested that respondent be ordered to pay the costs of the student's tuition at Smith for the 2005-06 school year; to pay for tutoring services provided at the Lindamood-Bell Center; to provide transportation to and from the tutoring services; and to evaluate the student for assistive technology needs (Parent Ex. A).

Relevant to the only issue on appeal, at the impartial hearing petitioner testified that the student had received free lunch at respondent's school and that at Smith no free lunches were provided (Tr. pp. 104-105).

In a decision dated September 26, 2005, the impartial hearing officer found that respondent had denied the student a FAPE and ordered respondent to pay for the student's tuition at Smith for the 2005-06 school year; to pay for 240 hours of service at the Lindamood-Bell Center; to conduct an assistive technology evaluation of the student no later than December 1, 2005; and to pay for the student's transportation to and from the tutoring program (IHO Decision, pp. 19-20).  The impartial hearing officer denied petitioner's request that respondent pay for the student's lunches at Smith, determining that the student was not entitled to the provision of lunch under either the IDEA or section 504 of the Rehabilitation Act (IHO Decision, pp. 16-19).

Petitioner appeals that portion of the impartial hearing officer's decision that denied petitioner's request that respondent provide the cost of the student's lunch during the student's placement at Smith. 3

The purpose behind the IDEA (20 U.S.C. §§ 1400 - 1487)1 is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; Schaffer v. Weast, 126 S. Ct. 528 [2005]).  A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written individualized education program (IEP) (20 U.S.C. § 1401[8][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d])2.  A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  In Burlington, the court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (id.).  "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP" (Burlington, at 370-71; see Application of the Bd. of Educ., Appeal No. 05-073).

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]).

The issue of the provision of meals to a child with a disability has been recently addressed in Application of the Bd. of Educ., Appeal No. 05-033; Application of the Bd. of Educ., Appeal No. 05-108; and Application of the Bd. of Educ., Appeal No. 05-113.

Application of the Bd. of Educ., Appeal No. 05-0333 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."  In that case, based upon the statutory and/or regulatory definitions of "special education," "related services," and "supplementary aids and services," and the facts presented, there was no evidence

in the record to suggest that respondent's request for the provision of breakfast and lunch for [the student could] be characterized as "special education," a "related service," or "supplementary aids and services."  Moreover, there [was] no evidence that the student require[d] any specialized nutritional services in order to benefit from her special education.  Finally, "there [was] no evidence that the request for breakfast and lunch was related to any of the [student's] special education needs.

(id.)

Application of the Bd. of Educ., 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 student.

In Application of the Bd. of Educ., Appeal No. 05-108 and Application of the Bd. of Educ., Appeal No. 05-113, it was held that reliance upon the IDEA's implementing regulations relating to "nonacademic services" (34 C.F.R. § 300.306), and "nonacademic settings" (34 C.F.R. § 300.553), to support the conclusion that the school district must provide free lunch or funding for lunch to a student while attending a private school was misplaced and unpersuasive.  In the instant appeal, petitioner relies upon these very same regulations in support of her position that the impartial hearing officer erred below.  For the reasoning and rationale detailed in Application of the Bd. of Educ., Appeal No. 05-108 and Application of the Bd. of Educ., Appeal No. 05-113, I find petitioner's arguments in this appeal unpersuasive.

Similar to the facts and circumstances presented in Application of the Bd. of Educ., Appeal No. 05-033; Application of the Bd. of Educ., Appeal No. 05-108; and Application of the Bd. of Educ., Appeal No. 05-113, after reviewing the record before me, I find no evidence to suggest that the student in this appeal requires any special nutritional services in order to benefit from his special education.  I am not convinced by the record in this case that petitioner's request for the provision of lunch for her son falls within the scope of the IDEA or its implementing regulations.  As noted in Application of the Bd. of Educ., Appeal No. 05-033, a '"request is beyond the reach of the IDEA if it is made for personal reasons unrelated to the student's educational needs"' (citing Ms. S. v. Scarborough Sch. Comm., 366 F. Supp. 2d 98, 100 [D.Me. 2005]).  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 the entitlement to a FAPE and "should not impose obligations that would go beyond entitlement" (Letter to Kohn, 17 IDELR 522 [OSEP 1991]).  I, therefore, confer with the impartial hearing officer given the facts presented herein.  The petitioner's son is not entitled, under the IDEA, to lunch at public expense at Smith.

The impartial hearing officer also determined that petitioner's son was not entitled to lunch at public expense under section 504 of the Rehabilitation Act (IHO Decision, pp. 18-19).  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 denied funding for the student's lunch pursuant to section 504, I have no jurisdiction to review that determination decision.

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

 

            THE APPEAL IS DISMISSED.

 

Dated:

Albany, New York

 

__________________________

 

January 24, 2006

 

PAUL F. KELLY
STATE REVIEW OFFICER

 

1 On December 3, 2004, Congress amended the IDEA, effective July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004 [IDEIA], Pub. L. No. 108-446, 118 Stat. 2647 [2004]). Since the relevant underlying events in this appeal pertaining to the development of the IEP in dispute occurred prior to the effective date of the 2004 amendments, the new provisions of the IDEIA do not apply, and citations contained in this decision are to the statute and corresponding regulations as they existed prior to the 2004 amendments.

2 The term "free appropriate public education" means special education and related services that -

(A) have been provided at public expense, under public supervision and direction, and without charge;

(B) meet the standards of the State educational agency;

(C) include an appropriate preschool, elementary, or secondary school education in the State involved; and

(D) are provided in conformity with the individualized education program required under section 1414(d) of this title.

20 U.S.C. § 1401(8).

3 Petitioner has attached a copy of a "First Amended Complaint" (05-CV-7945) filed with the United States District Court for the Southern District of New York on October 4, 2005 to her petition, which challenges, in part, the decision rendered in Application of the Bd. of Educ., Appeal No. 05-033.  As of the date of this decision, a determination on the merits of that matter has not been made by the court.