The University of the State of New York Seal
The State Education Department
State Review Officer

No. 06-001

 

Application of a CHILD WITH A DISABILITY, by her 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 the decision of an impartial hearing officer, which denied petitioner's request that respondent provide the cost of the student's breakfast and lunch during the student's attendance at The Sterling School (Sterling) during the 2005-06 school year.  The appeal must be denied.

At the time of the impartial hearing on October 28, 2005, the student was 11 years old and attending Sterling for the 2005-06 school year (Tr. pp. 1, 29-30, 53-68, 82).  The Commissioner of Education has not approved Sterling as a school with which school districts may contract to instruct students with disabilities (see 8 NYCRR 200.7; Tr. p. 10).  The student's eligibility for special education programs and classification as a student with a learning disability are not in dispute in this appeal (see 8 NYCRR 200.1[zz][6]; Parent Ex. J).  The student has been the subject of a previous appeal, Application of the Bd. of Educ., Appeal No. 05-033; thus, her educational history and evaluations will not be repeated here.  Furthermore, it should be noted that the issue presented in the instant appeal - whether respondent is required to fund the student's breakfast and lunch while she attends Sterling - is the identical issue presented and decided in the previous appeal, Application of the Bd. of Educ., Appeal No. 05-033.1

By letter dated October 7, 2005, petitioner requested an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. 1400 - 1482)2 and section 504 of the Rehabilitation Act (29 U.S.C. 701-796[l][1998]) due to respondent's alleged failure to provide a free appropriate public education (FAPE) for the 2005-06 school year (Parent Exs. A; D; E).  Petitioner's letter indicated that she unilaterally placed the student at Sterling for the 2005-06 school year and because Sterling did not participate in the free school breakfast and lunch programs, the student would be denied participation in those programs (Parent Exs. A, D, E).  Petitioner requested, in addition to other relief, that respondent pay for the cost of the student's breakfast and lunch on school days while the student attended Sterling for the 2005-06 school year (Parent Ex. A).

The impartial hearing occurred on October 28, 2005 (Tr. p. 1).  Petitioner presented testimonial and documentary evidence (Tr. pp. 51-115; Parent Exs. A-LL).  Respondent conceded that it failed to offer a timely and appropriate placement to the student for the 2005-06 school year and presented no witnesses or documentary evidence (Tr. p. 18; see IHO Decision, pp. 2, 3, 7).

Relevant to the issue on appeal, petitioner argued at the impartial hearing that the student qualified for free breakfast and lunch when she attended respondent's school and further, that she continued to remain eligible for free breakfast and lunch in 2005-06 (Tr. pp. 27-36, 96-100; Parent Ex. G at p. G-1).  Petitioner also argued that since respondent failed to offer a FAPE to the student for 2005-06 school year, the student must attend a school that did not participate in the free breakfast and lunch programs, and petitioner did not have the income to provide meals to the student while she attended Sterling (Tr. pp. 27-28, 70-71, 73-80, 94-100).  Petitioner testified, however, that the student currently ate breakfast at home and brought food to school for snacks and lunch (Tr. pp. 96-100).  The director of Sterling testified that all of the children at the school had individualized education programs (IEPs); all of the children brought their own lunches; none of the children at the school received free lunches; she was not aware of any special nutritional needs for the student in question; and no specialized nutritional needs were listed on the student's IEP in order for her to benefit from her special education (Tr. pp. 77-80).

Respondent argued at the impartial hearing that it was not required under the IDEA or its implementing regulations to fund or provide meals to the student while she attended Sterling; petitioner's request for meals or funding for meals was beyond the scope of the IDEA and its implementing regulations; the student's entitlement to free breakfast and lunch were unrelated to the provision of a FAPE to the student; the impartial hearing officer did not have the authority under the IDEA to award meals; and under section 504 of the Rehabilitation Act, a failure to provide a FAPE does not automatically translate to discrimination based upon a disability  (Tr. pp. 24-25).

By decision dated November 23, 2005, the impartial hearing officer determined that respondent was not obligated to reimburse or fund the student's breakfast and lunch while she attended Sterling during the 2005-06 school year (IHO Decision, pp. 8-10).  The impartial hearing officer concluded that respondent did not violate section 504 of the Rehabilitation Act and that neither the IDEA nor its implementing regulations required the provision of meals to the student (IHO Decision, pp. 8-9).

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 breakfast and lunch during the student's attendance at Sterling.3  Petitioner argues that the impartial hearing officer erred in her decision regarding payment for the student's breakfast and lunch because the denial of benefits constitutes discrimination based upon the student's disability,4 the IDEA and its implementing regulations obligate respondent to pay for the student's meals because respondent denied her a FAPE, and the impartial hearing officer has broad discretion when fashioning relief for the denial of a FAPE. 

Respondent contends that the impartial hearing officer's decision should be upheld in its entirety.

A purpose of the IDEA 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 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]).

The issue of the provision of meals to a child with a disability has been addressed in Application of the Bd. of Educ., Appeal No. 05-113; Application of a Child with a Disability, Appeal No. 05-111; Application of the Bd. of Educ., Appeal No. 05-108; and Application of the Bd. of Educ., Appeal No. 05-033.

Application of the Bd. of Educ., Appeal No. 05-033 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.

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. 05-113 and Application of the Bd. of Educ., Appeal No. 05-108, 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 arguments and 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. 05-113 and Application of the Bd. of Educ., Appeal No. 05-108, I find petitioner's arguments in this appeal unpersuasive.

In accord with my decisions based upon similar facts and circumstances presented in Application of the Bd. of Educ., Appeal No. 05-113; Application of the Bd. of Educ., Appeal No. 05-108; and Application of the Bd. of Educ., Appeal No. 05-033, 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 the student 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]).  Therefore, the student in this case is not entitled, under the IDEA or its implementing regulations, to breakfast and/or lunch at public expense at Sterling.

 

            THE APPEAL IS DISMISSED.

 

Dated:

Albany, New York

__________________________

March 13, 2005

PAUL F. KELLY
STATE REVIEW OFFICER

 

1 Application of a Child with a Disability, Appeal No. 05-033, has been appealed to the United States District Court, Southern District of New York (Pet. 16).

2  On December 3, 2004, Congress amended the Individuals with Disabilities Education Act, however, the amendments did not take effect until July 1, 2005 (see Individuals with Disabilities Education Improvement Act of 2004, 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 IDEA 2004 apply and the citations contained in this decision are to the newly amended statute.

3  Inasmuch as neither side has appealed that portion of the decision regarding payment for tuition and transportation costs, those portions of the decision are final and not subject to review (34 C.F.R. 300.510 [a]; 8 NYCRR 200.5[i][4][ii]; see also, Application of a Child with a Disability, Appeal No. 03-105; Application of a Child with a Disability, Appeal No. 03-024; Application of a Child with a Disability, Appeal No. 03-002; and Application of the Bd. of Educ. of the City Sch. Dist. of the City of New York, Appeal No. 03-001.

4  To the extent that petitioner claims the impartial hearing officer erred in her determination that respondent did not violate section 504 of the Rehabilitation Act, 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. 05-108; 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 breakfast and lunch pursuant to section 504, I have no jurisdiction to review that portion of the decision.