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

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No. 06-003

 

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 S. Steuer, Esq., of counsel

 

Advocates for Children of New York, Inc., attorney for respondent, Christopher J. Tan, Esq., of counsel

DECISION

Petitioner, the New York City Department of Education, appeals from the decision of an impartial hearing officer which ordered petitioner to provide the Ryken Education Center at Xaverian High School (REACH) with the cost of the student's breakfast and lunch, in the amount of $160 per month, while he attends REACH during the 2005-06 school year.  The appeal must be sustained.

The student was 17 years old when the impartial hearing occurred on October 14, 2005, and was attending REACH for the 2005-06 school year (Tr. pp. 1, 25).  The Commissioner of Education has approved REACH 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 an emotional disturbance are not in dispute in this appeal (see 8 NYCRR 200.1[zz][4]).

By letter dated October 3, 2005, respondent, the student's foster parent, requested an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. 1400 - 1482)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).  Respondent's letter indicated that the student attended school at "Xaverian High School's Ryken Educational Center via a Nickerson letter"2 and that the student did not receive free breakfast or lunch at school because the "Ryken Center does not participate in federal and state meals' programs" (id. at p. A1).  Respondent requested that petitioner pay for breakfast and lunch during school days.

The impartial hearing went forward on October 14, 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 his attendance at REACH during the 2005-06 school year (Tr. pp. 8, 14-22).  Both parties presented documentary evidence; respondent also presented testimonial evidence.

Petitioner claimed at the impartial hearing that it is not required under the IDEA to fund or provide meals to the student while he attends REACH; that respondent's request for meals or funding for meals is beyond the scope of the IDEA; and further, that the entitlement to free breakfast and lunch are unrelated to the provision of a FAPE to the student (Tr. pp. 14-17).

Respondent asserted at the impartial hearing that as a child in foster care, the student automatically qualified for free breakfast and lunch at school and that the student continued to remain eligible for the free breakfast and lunch programs offered at petitioner's schools (Tr. pp. 18, 34, 38-39).  Respondent also argued that since petitioner failed to offer a FAPE for the 2005-06 school year, the student must attend a school 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 he attends REACH (Tr. pp. 25-26, 28-31, 42-47; see Parent Ex. I at p. 1).  The student's foster mother testified that the student currently ate breakfast at home and sometimes brought a sandwich for lunch (Tr. pp. 49-50).

By decision dated November 18, 2005, the impartial hearing officer determined that petitioner failed to provide the student with a FAPE and, based upon the foregoing, petitioner was required to "provide the REACH Program with monthly checks in the amount of $160 to cover the cost of breakfast and lunch" (IHO Decision, p. 7).  In particular, the impartial hearing officer concluded that petitioner "denied the student the benefits of the free meals program by reason of his disability" and that the student was entitled to receive free meals pursuant to section 504 of the Rehabilitation Act (IHO Decision, p. 6).  In addition, the impartial hearing officer stated that under the IDEA, the "definition of non-academic and extracurricular services may include meals" and the Nickerson letter issued by petitioner provided for "placement in private school at no cost to the parent" (IHO Decision, p. 6) (emphasis in original).  The impartial hearing officer explained that this case was distinguishable from a previous decision, which did not award free breakfast and lunch, Application of the Bd. of Educ., Appeal No. 05-033, because the student in the instant appeal used the Nickerson letter to attend a school approved by petitioner (IHO Decision, p. 7).

On appeal, petitioner alleges that the impartial hearing officer acted beyond the scope of her authority in granting respondent's request for free breakfast and lunch, or funding for the same; that neither the IDEA, nor its implementing regulations, requires the provision of, or the funding of, free breakfast or lunch to a student in order to provide a FAPE; and that the student's entitlement to a free breakfast or lunch at a public school does not automatically transfer to a placement in a private school.

Respondent contends that the student had no choice but to attend a school that does not participate in the free breakfast and lunch programs as a result of petitioner's failure to provide a FAPE for the 2005-06 school year; that the student has a right under the IDEA and its implementing regulations to free breakfast and lunch; and that impartial hearing officers have broad discretion when fashioning appropriate relief for the denial of a FAPE.

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]).

In the instant appeal, the impartial hearing officer relied, in part, upon section 504 of the Rehabilitation Act to support her conclusion that petitioner must provide funding for breakfast and lunch while the student attends REACH in 2005-06 (see IHO Decision, pp. 5-6).  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 awarded funding for the student's breakfast and lunch pursuant to section 504, I have no jurisdiction to review the decision.

The impartial hearing officer also relied, in part, upon the IDEA and its implementing regulations to support her conclusion that petitioner must fund the student's breakfast and lunch during his attendance at REACH during the 2005-06 school year (see IHO Decision, pp. 6-7).  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. 05-033; Application of the Bd. of Educ., Appeal No. 05-108; Application of a Child with a Disability, Appeal No. 05-111; and Application of the Bd. of Educ., Appeal No. 05-113.

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.

(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.

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, and because respondent has not proffered any new arguments or distinguishable facts in the present appeal, I find petitioner's arguments persuasive and in accord with previously decided appeals regarding the provision of meals and/or funding for meals under the IDEA.

In accord with  decisions based upon similar 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 respondent'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 REACH.

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 REACH with monthly checks in the amount of $160 to cover the cost of the student's breakfast and lunch while he attends REACH during the 2005-06 school year.

  

Dated:

Albany, New York

__________________________

March 8, 2006

PAUL F. KELLY

STATE REVIEW OFFICER

 

1 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 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], 553 IDELR 298).  The remedy of a "Nickerson letter" is intended to address the situation in which a child has not been evaluated within 30 days or placed within 60 days of referral to the CSE (id.; see Application of the Bd. of Educ., Appeal No. 03-110; Application of a Child with a Disability, Appeal No. 02-075; Application of a Child with a Disability, Appeal No. 00-092).