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DETSEL v. BOARD OF EDUC. OF THE AUBURN ENLARGED CI

June 19, 1986

MELISSA DETSEL, an infant by her mother and next friend, MARY JO DETSEL, Plaintiff,
v.
BOARD OF EDUCATION OF THE AUBURN ENLARGED CITY SCHOOL DISTRICT, PETER KACHRIS, individually and as Superintendent of the Auburn Enlarged City School District, GORDON AMBACH, Commissioner of the New York State Education Department, STEPHEN BANDAS, individually and as Commissioner of the Cayuga County Department of Social Services, and CESAR PERALES, individually and as Commissioner of the New York State Department of Social Services, Defendants



The opinion of the court was delivered by: MCCURN

NEAL P. MCCURN, D.J.

MEMORANDUM-DECISION AND ORDER

1. Background

 The plaintiff, Mary Jo Detsel, has brought this action on behalf of her daughter Melissa, a handicapped student who attends a special education class at the Seward Elementary School in Auburn, seeking relief under the Education of All Handicapped Children Act, 20 U.S.C. § 1401 et seq. (EAHCA); section 504 of the Rehabilitation ACt, 29 U.S.C. § 794; and 42 U.S.C. § 1983. The plaintiff asks for declaratory and injunctive relief compelling the defendants Board of Education of the Auburn Enlarged City School District (Board of Education); Peter Kachris, Superintendent of the Auburn Enlarged City School District; and, Gordon Ambach, Commissioner of the New York State Education Department; to provide Melissa with constant nursing care while she attends public school.

 Melissa is a seven-year-old child who suffers from severe physical disabilities. In order to live, she requires constant respirator assistance and a continuous supply of forty percent oxygen. All of the parties to the instant action agree that Melissa's condition requires constant vigilance by an individual trained to monitor her health. The present controversy concerns just who must provide her with this care.

 Formerly, the Cayuga County Department of Social Services had provided Melissa with the services of one nurse from 7:00 a.m. until 3:00 p.m. and of a second nurse from 11:00 p.m. until 7:00 a.m. However, the Department of Social Services refused to continue paying for the services of the first nurse who accompanied Melissa to school when she began attending kindergarten in 1983. Melissa enrolled in a BOCES Option III multiply handicapped class at the Seward Elementary School upon the recommendation of the school district's Committee on the Handicapped (COH) which had classified her as "other health impaired." At that time, the Board of Education protested that it was not obligated to compensate the nurse employed to render Melissa assistance during school hours, but it did agree to pay her until the plaintiff ascertained whether other sources of payment were available.

 Upon notification by the school district that it would not shoulder the expense of extensive in-school nursing care, plaintiff requested an impartial hearing pursuant to 20 U.S.C. § 1415(b) and the N.Y. Educ. Law § 4404(1) to review this decision. On December 14, 1984, the Hearing Officer found that the disputed nursing care did constitute "related services" within the meaning of the EAHCA. Consequently, the Hearing Officer determined that the Board of Education was indeed obligated to provide and pay for these services. The Board of Education appealed this determination. By a decision dated February 25, 1985, the New York State Commissioner of Education, Gordon Ambach, reversed the Hearing Officer's order directing the school district to "provide a suitably trained person to attend to [Melissa's] needs while [attending] a special education class." Decision of Hearing Officer, Marc Reitz, Ex. A, Defendant Ambach's Submitted Record of Appeal; Decision of New York State Commissioner of Education, Ex. F, Defendant Ambach's Record of Appeal, at p. 1. The Commissioner found that the services sought by the plaintiff were not "related services" within the meaning of the EAHCA. The plaintiff now seeks judicial review of the Commissioner's decision.

 2. Discussion

 A. Education of All Handicapped Children Act (EAHCA).

 The Education of All Handicapped Children Act, 20 U.S.C. § 1401 et seq., creates a comprehensive scheme for assuring that handicapped children receive a "free appropriate public education." 20 U.S.C. § 1401. A "free appropriate public education" includes "special education" and "related services." No state or local educational agency may receive federal funding unless it provides the handicapped with this opportunity. 20 U.S.C. § 1412(1). An individualized education program (IEP) must be developed for each handicapped child which describes the educational needs of the child and the specially designed instruction and related services to be utilized in meeting those needs. § 1401(19). In addition, the EAHCA imposes detailed procedural requirements upon States receiving federal funds in accordance with the provisions of the Act. A parent aggrieved by the decision of a state educational agency may commence an action in either state or federal court when the disputed determination relates to the education and evaluation of the child. §§ 1415(b), 1415(e).

 In accordance with the foregoing mandates, the school district's COH studied Melissa's background an developed an IEP. As noted hereinbefore, the COH recommended that she be classified as "other health impaired" and placed in a special education class for the multiply handicapped. The suggested IEP listed the particular therapies or "related services" to be rendered in connection with Melissa's education program, including speech and language therapy, physical therapy, occupational therapy, adaptive physical education, and "appropriate school health services." See August 29, 1983, COH Recommendation to the Board of Education, Defendant Ambach's Submitted Record of Appeal, Ex. C. The plan, however, failed to identify the specific "health support services" needed. The only question before the court is the extent to which "school health support services" are required by the EAHCA. As already noted, the Hearing Officer determined that the extensive medical care required by Melissa was encompassed within the term "related services" as set forth in the EAHCA whereas the Commissioner concluded it was not.

 B. Related Services.

 A "free appropriate public education" includes "special education and related services." § 1401(18). These related services include:

 
[t]ransportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, and medical and counseling services, expect that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist the handicapped child to benefit from special education, and ...

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