05-113

            Petitioner, the New York City Department of Education (district), appeals from the decision of an impartial hearing officer, which ordered petitioner to reimburse respondent for the cost of the child's lunch for the days the child attends the Sterling School (Sterling) for the 2005-06 school year.  The appeal must be sustained. 

             Respondent's son was nine years old at the time of the impartial hearing on September 6, 2005, and had been accepted to attend Sterling for the 2005-06 school year (Tr. p. 11; Parent Ex. G).  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).

             Petitioner's Committee on Special Education (CSE) initially classified the child in May 2004 as a child with a learning disability (LD), and at that time, prepared the child's individualized education program (IEP) for the 2004-05 school year (Tr. pp. 6, 70; Parent Ex. D at p. 1).   The child's eligibility for special education programs and classification are not in dispute in this appeal (8 NYCRR 200.1[zz][6]).

          By letter dated August 16, 2005, respondent requested an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1451 [1997]) and section 504 of the Rehabilitation Act (§ 504) (29 U.S.C. §§ 701-796[l][1998]) due to petitioner's alleged failure to provide a free appropriate public education (FAPE) by failing to offer an appropriate placement for the 2005-06 school year (Parent Ex. A).  Respondent requested that petitioner be ordered to provide "payment for unilateral placement at The Sterling School" and "round-trip transportation" (id.).  By letter dated August 22, 2005, respondent amended her original impartial hearing request to include that petitioner be ordered to "provide payment for school lunch" (Parent Ex. B).

           The impartial hearing occurred on September 6, 2005, and went forward without an appearance on behalf of petitioner after the impartial hearing officer declined to grant a request by petitioner for an adjournment (Tr. pp. 1, 3-5; IHO Decision, p. 2).  Respondent presented testimonial and documentary evidence (Tr. pp. 6-75; Parent Exs. A-J).  Respondent, the child's mother testified that petitioner failed to conduct an annual review or prepare an IEP for the child for 2005-06 (see Tr. p. 30).  Respondent also testified about her son's eligibility for and participation in the free lunch program offered at petitioner's school (Tr. pp. 27-28).

            Respondent presented the director of Sterling as a witness, who testified, in part, that Sterling does not participate in the free breakfast or free lunch programs because the school is unable to afford the services of a nutritionist (Tr. p. 60).  She testified that all of the children at Sterling bring their own lunches, which can be refrigerated and/or microwaved, and stated, "[w]e probably have children who qualify for federal lunch programs" (id.).

           The impartial hearing officer rendered her decision in favor of respondent on October 3, 2005, and directed petitioner, in part, to "provide funding at the rate of $3.50 per day for [the child's] lunch on the days that he attends The Sterling School" (IHO Decision, p. 8).¹  She held that although the child was not entitled to the provision of lunch under section 504 of the Rehabilitation Act, he was entitled to the provision of lunch under the IDEA, specifically, the IDEA's implementing regulations regarding "nonacademic services" (34 C.F.R. § 300.306) and "nonacademic settings" (34 C.F.R. § 300.553) (IHO Decision, pp. 6-8).  She explained that "the provision of lunch in the circumstances of this matter contributes to achievement of [the child's] academic goals" and that "[b]ut for the complete failure of [petitioner] to provide FAPE, . . . , [the child] would have received free lunch which would have ensured that he would not have had the additional inhibition of hunger in addressing his concentration and academic problems" (IHO Decision, pp. 7-8).

           Petitioner appeals the impartial hearing officer's decision insofar as it directs reimbursement for respondent’s expenditures for the child's lunch at a rate of $3.50 per day for the days the child attends Sterling in 2005-06.²  Specifically, petitioner alleges that the provision of meals is not contemplated under the IDEA's "related services," "nonacademic services," or "nonacademic settings" implementing regulations and is not an entitlement under the IDEA.  In addition, petitioner alleges that the impartial hearing officer exceeded the scope of her authority in granting such relief and 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 that the impartial hearing officer appropriately exercised her authority in granting reimbursement for the costs of the child's lunch, as the request was premised upon alleged violations of the IDEA and the IDEA's implementing regulations, and because the impartial hearing officer has broad discretion when fashioning appropriate relief under the IDEA.

          The purpose behind the IDEA (20 U.S.C. §§ 1400 - 1487)³ 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[8][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]).⁴  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]).

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

        In the instant appeal, both the impartial hearing officer and respondent rely 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 petitioner must provide free lunch or funding for lunch to the child while he attends Sterling in 2005-06 (IHO Decision, pp. 7-8).  I find reliance upon these implementing regulations misplaced and unpersuasive.

        "Nonacademic services and extracurricular services and activities," as defined by regulation, "may include counseling services, athletics, transportation, health services, recreational activities, special interest groups or clubs sponsored by the public agency, referrals to agencies that provide assistance to individuals with disabilities, and employment of students, including both employment by the public agency and assistance in making outside employment available" (34 C.F.R. § 300.306[b]).  The regulation requires each "public agency shall take steps to provide nonacademic and extracurricular services and activities in the manner necessary to afford children with disabilities an equal opportunity for participation in those services and activities" (34 C.F.R. § 300.306[a]). The provision of meals is not provided for by the plain language of the regulation and there is nothing in the record pertaining to special education needs that compels a reading of the regulation to require the provision of special nutritional services for this particular child.  There is no evidence in the record to suggest that the child requires any special nutritional services in order to benefit from his special education services.    The director of Sterling testified that the child's issues with respect to "concentration" and "attention" may be what she referred to as "lack of engagement" in his classes (Tr. pp. 58-59).   Furthermore, it must be noted that the child exhibited "concentration" and "attention" problems at a time when he was participating in the free lunch program at petitioner's school and there is no persuasive evidence that the free lunch program is needed to address these concerns or to provide the child with an appropriate education (see Parent Ex. D at pp. 3-9).

         Respondent's reliance upon the "nonacademic settings" regulation is also misplaced.  "Nonacademic settings" is defined as follows:

In providing or arranging for the provision of nonacademic and extracurricular services and activities, including meals, recess periods, and the services and activities set forth in Sec. 300.306, each public agency shall ensure that each child with a disability participates with nondisabled children in those services and activities to the maximum extent appropriate to the needs of that child.

         (34 C.F.R. § 300.553).  Respondent argues that the "nonacademic settings" regulation further defines the list of "nonacademic services" set forth in 34 C.F.R. § 300.306, and therefore, by the inclusion of the term "meals" in 34 C.F.R. § 300.553, "meals" are a "nonacademic service" that must be provided in order to provide an appropriate education.  I do not agree with this argument and find no persuasive evidence in the record, nor does respondent point to any relevant interpretations of these regulations, to support this argument. 

         Based upon the above, I am not convinced that respondent'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]).  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 the entitlement to a FAPE and "should not impose obligations that would go beyond entitlement" (Letter to Kohn, 17 IDELR 522 [OSEP 1991]).  Here, the provision of lunch is unrelated to the provision of a FAPE.

        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. 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]).

         I note that the appeal in this matter arises solely from petitioner's failure to provide an appropriate public school placement to this child. Petitioner concedes its obligation to provide a FAPE (Pet.¶ 19).  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 (8 NYCRR 200.6[i][1][iii]; see generally Cooke Ctr. For Learning & Dev. v. Mills, 19 A.D.3d 834 [3d Dep't 2005]).  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 remainder of the 2005-06 school year and for the 2006-07 school year.

          Moreover, I note that the impartial hearing officer ordered petitioner to reconvene a CSE and recommend placement at the Sterling school.  As noted above, 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.  A recommendation by a CSE that the child be placed at Sterling, a school that has not been determined to meet the standards of the State educational agency, would constitute a denial of a FAPE (see 20 U.S.C. § 1401(8)[B]).  I will therefore annul that portion of the impartial hearing officer’s decision which directs the CSE to recommend placement at Sterling.

         I do not address the impartial hearing officer’s determination directing petitioner to be responsible for the costs of the private school placement for the 2005-06 school year.  Further, I concur with the impartial hearing officer's determination that a new psychoeducational assessment should be prepared for the purpose of developing a new IEP.

           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 reimburse respondent at the rate of $3.50 per day for the child's lunch during the days the child attends Sterling during the 2005-06 school year; and

IT IS FURTHER ORDERED, that the impartial hearing officer’s decision is annulled to the extent that it ordered petitioner's CSE to recommend placement at Sterling; 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 and secure an appropriate program and public school placement in the least restrictive environment for the child for the remainder of the 2005-06 school year and shall, no later than May 1, 2006, recommend and secure an appropriate program and public school placement in the least restrictive environment for the child for the 2006-07 school year.