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A.M., On Behalf of J.M v. Department of Education; School District 29

January 17, 2012

A.M., ON BEHALF OF J.M., PLAINTIFFS
v.
DEPARTMENT OF EDUCATION; SCHOOL DISTRICT 29; P.S./I.S. 270Q; NYC DEPARTMENT OF HEALTH AND MENTAL HYGIENE; OFFICE OF SCHOOL HEALTH; OFFICE OF SCHOOL FOOD SERVICES; CHANCELLOR JOEL KLEIN; SUPERINTENDENT JOANNE JOYNER-WELLS; PRINCIPAL ELEANOR ANDREW; THE CITY OF NEW YORK ("DOE"), DEFENDANTS.



The opinion of the court was delivered by: Dearie, District Judge.

MEMORANDUM & ORDER

I. INTRODUCTION

J.M. is a student diagnosed with Type 1 Diabetes Mellitus and at the time this action was filed in March 2008, was a twelve year-old seventh grader at Public School 270Q ("P.S. 270"), located in District 29 of the New York City Department of Education (the "DOE"). A.M. (the "parent") commenced this action pro se on behalf of herself and her son, J.M. (collectively "the plaintiffs"), against the City of New York, the DOE, School District 29, P.S. 270, the New York City Department of Health and Mental Hygiene ("DOHMH"), the New York City Office of School Health, the New York City Office of School Food Services ("OSFS"), and School Chancellor Joel Klein, District 29 Superintendent, Joanne Joyner-Wells, and P.S. 270 Principal Eleanor Andrew in their individual and official capacities (collectively the "defendants"). The plaintiffs allege substantive and procedural violations of Section 504 of the Rehabilitation Act of 1973 ("Section 504"), 29 U.S.C. § 794, et seq., the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12111, et seq., the Individuals with Disabilities Education and Improvement Act ("IDEA"), 20 U.S.C. § 1400, et seq., and its federal and state implementing regulations, New York State and New York City Education Laws, as well as claims under the Equal Protection and Due Process Clauses of the Fourteenth Amendment and other regulations*fn1

and international instruments or treaties.*fn2 The plaintiffs allege that these violations give rise to viable claims under Section 1983 of the Civil Rights Act of 1871("Section 1983"), 42 U.S.C. § 1983. In addition, the plaintiffs allege pendent state claims for intentional and negligent infliction of emotional distress.

The thrust of plaintiffs' complaint is that the defendants to varying degrees failed to accommodate J.M.'s specialized dietary needs (a result of his new diabetes diagnosis) by unreasonably refusing to (1) heat up J.M.'s homemade food using the school microwave and (2) supervise J.M.'s food intake during school lunch. In so doing, plaintiffs allege that the defendants discriminated against J.M., denied J.M. a "free appropriate public education," and violated the student's and parent's substantive and procedural rights. Defendants move for summary judgment. For the reasons set forth below, defendants' motion is GRANTED in its entirety.

II. BACKGROUND

I have liberally construed the disjointed record and its less than cohesive presentation in the parties' papers. The most essential facts are largely undisputed, except where indicated.*fn3

A.Diabetes Diagnosis

On March 26, 2007, J.M., then 11 years old and in the sixth grade, was hospitalized at Schneider Children's Hospital ("Schneider") and diagnosed a day later with Type 1 Diabetes Mellitus. Compl. ¶¶ 4-6. There is no indication that J.M. had previously suffered from any disabilities that interfered with his learning or access to school. Much the opposite, both before and after his diabetes diagnosis, J.M. was able to participate fully in his educational program at P.S. 270 with no restrictions, including gym class, school clubs, and activities, Def. R. 56.1 ¶ 11, and was "on grade level for reading and math." Def. R. 56.1 ¶ 24. It is also undisputed that diabetes is a lifelong, debilitating illness that requires treatment, medication, and close monitoring. See Opp. Mem. at 5, 24.

Between March 27 and March 29, 2007, while J.M. was still hospitalized, the parent reached out to P.S. 270 Assistant Principal, Andrea Belcher ("Ms. Belcher"), and the school's Guidance Counselor, Sonya Spurling ("Ms. Spurling"), notified them of J.M.'s hospitalization and his diagnosis, and also discussed steps to "easy (sic) [J.M.]'s transition from the hospital to school and home." Pl. R. 56.1, Exh. 3, Email from the parent to Ms. Belcher, Ms. Spurling, 3/29/2007.

B.Request For and Implementation of Glucose Monitoring

Chief among these transitional steps was the completion of a "Glucose Monitoring and Authorization for Administration of Medication to Students" Form ordered and signed on March 28, 2007 by J.M.'s primary physician and endocrinologist at Schneider, Doctor Paula Kreitzor ("March Glucose Form").Def. R. 56.1, Exh. D, Hearing Officer's Findings of Fact and Decision ("FFD"), at 4.*fn4 On March 29, 2007, the parent faxed the form to P.S. 270, just hours before J.M.'s earlier-than-expected discharge from the hospital. Opp. Mem. at 5.

A glucose monitoring form and order is typical for students with diabetes in New York City and school nurses "regularly perform such monitoring pursuant to physicians' orders." Def. R. 56.1, Exh. B, Declaration of Gary Krigsman, M.D., Supervising Physician in the Bureau of School Health ("Krigsman Decl.") ¶¶ 5-6. Students with diabetes are "[g]enerally . . . able to participate in the school educational program without any special accommodation," save for this kind of "daily blood sugar testing to monitor glucose levels, and provision for appropriate interventions (such as giving the student snacks, or administering medications ordered by the student's physician) in the event the student's glucose levels fall outside the acceptable range." Id. ¶ 7. DOHMH, a named defendant in this matter, is responsible for carrying out the orders pertaining to glucose monitoring, the administration of medication, and other medical interventions. Id. ¶ 6, 12.

The March Glucose Form stated that J.M. "may need help" monitoring his own blood glucose levels; that if his blood glucose levels remained between "70 and 250," "no action" would be needed; that if his blood glucose dropped below "70," he was to be given "4 oz of juice plus a snack;" and that if his blood glucose was elevated above "250," he would have to drink water and his parent would have to be called. FFD at 4. Although the physician's order "did not provide for administration of insulin for elevated glucose levels . . . as is often requested," the order "did provide for the administration of glucagon for hypoglycemia, but this intervention was never required." Krigsman Decl. ¶ 9.

When J.M. returned to school on March 30, 2007, J.M.'s father provided the school with an additional copy of the March Glucose Form, along with a "diabetic package" required to implement the Form, which included a "blood glucose meter, strips, lancets, log book, glucose tablets, glucose gel, glucagon emergency kit, 4 oz. juice boxes, packaged snacks and emergency numbers." Opp. Mem. at 6. The school and its school nurses fully complied with, and even went beyond, what the March Glucose Form required through J.M.'s graduation from P.S. 270 in 2009: Daily monitoring of blood glucose levels, see Pl. R. 56.1, Exh. 1, Office of School Health Diabetic Services Worksheets, 4/11/2007 -- May 20, 2009 ("Glucose Worksheets"),*fn5 daily calls from school nurses near the beginning of monitoring, Id.; see also Pl. R. 56.1, Exh. 3, Email from the parent to Ms. Belcher, 4/20/2007 ("I would like to highlight that both nurses have been very good to my son. They had (sic) called me every day to report [J.M.]'s glucose levels."), and frequent check-ins with the parent by phone whether or not J.M.'s blood glucose levels were too high or low. See Glucose Worksheets. Although J.M.'s levels were never sufficiently reduced or elevated to require emergency action, the school nursing staff, pursuant to standard procedures, contacted the parent in each instance where the student's blood sugar levels were erratic. Def. R. 56.1 ¶ 10.

C.Request and Denial of Request to Heat J.M.'s Homemade Lunches

The parent sent homemade lunches with J.M. upon the advice of J.M.'s Schneider nutritionist. ECF Docket # 3, Exh. 4, Impartial Hearing Request, 5/4/2007 ("IHR") at 1. This was to enable the parent and J.M.'s doctors to monitor his diet-specifically his caloric/carbohydrate intake-at least until J.M. became more accustomed to his "new situation." Id. According to a letter from the Coordinator of the New York State Child Nutrition Program Administration, upon which both parties rely, sending lunch from home is one of the primary ways in which students with diabetes "handle lunchtime well at school." Pl. R. 56.1, Exh. 8; Def. R. 56.1, Exh. C, Letter from Francis O'Donnell to the parent, 8/2/2007 ("O'Donnell Letter") at 2. In order to help students with diabetes "to be as independent as possible over time in his/her self-care of diabetes," students also may eat a school lunch or combine food from home with "purchased items at school." Id. The "DOE post (sic) on its website a table of product descriptions, brands, portion size, calories, cholesterol and total carbohydrates concerning the lunches served at school." FFD at 6 (citing testimony by District 29 Superintendent Joyner-Wells). The DOE provided food that could meet the special dietary restrictions of students like J.M. and sending homemade food was but one of several options available to J.M.'s parent. See O'Donnell Letter ("There have always been adequate choices in a school menu for [diabetic] students to eat an appropriate and healthy lunch."); FFD at 22 ("The evidence clearly established that there is a variety of choices for [J.M.] concerning the school lunches. . . . [T]he student's school lunches could be easily planned from the nutritional information contained on the DOE website and school menus.").

On April 12, 2007, the parent reached out to Ms. Belcher via email and without explaining why, asked "whether [J.M.] can warm up his lunch using a microwave." Pl. R. 56.1, Exh. 3, Email from the parent to Ms. Belcher, 4/12/2007. Ms. Belcher agreed to do so and directed Ms. Spurling, to heat J.M.'s homemade food using the microwave in the teacher's lounge. See Pl. R. 56.1, Exh. 3, Email from the parent to Ms. Belcher, 4/20/2007; Pl. R. 56.1, Exh. 5, NYC DOE Impartial Hearing Transcript ("IH Tr.") at 203-04; Def. R. 56.1, Exh. A, Declaration of Eleanor S. Andrew, Principal of P.S. 270 ("Andrew Decl.") ¶ 7.

Although diabetics must monitor their food intake, there is no medical necessity for them to consume hot food. Def. R. 56.1 ¶ 7. Rather, the parent wanted J.M.'s food to be heated so that he would be more inclined to eat hot homemade food that may have cooled off by lunchtime, despite his use of a thermos. As the parent explained, "He carries his food in an insulated bag/pack, but it does not keep it hot enough until his lunch time. I could send cold food with multiple ice packs and keep it safely cold, but I do not want him to eat sandwiches every single day." IHR at 1. Because his meals were strictly measured to maintain ideal blood glucose levels, it was important that J.M. eat all of his meals. FFD at 7 (citing testimony of Dr. Carl Barberis).

Between April 12 and April 20, 2007, the parent reached out to two different school nurses, one of whom was an employee of DOHMH, and also spoke with J.M. to inquire whether the school was actually heating his lunch and was informed that J.M. did not always have access to the microwave and on occasion "had sometimes eaten [his lunch] cold." Pl. R. 56.1, Exh. 3, Email from the parent to Ms. Belcher, 4/20/2007. When the parent asked one of the school nurses by phone whether the parent would need to "seek 504 documents*fn6 to ensure that [J.M.]'s nutritional needs are met at school," the nurse could not provide an answer at that time. Id. The parent's growing concern was amplified when on April 19, 2007, J.M. came home with some of his lunch left uneaten, Id., and on April 20, 2007, the parent was called by a school nurse to alert her that J.M.'s blood glucose count had been low prior to lunch (70), Opp. Mem. at 9, although J.M. did not require emergency action at the time. See Def. R. 56.1 ¶ 10.

These two incidents prompted a much more forceful email on April 20, 2007 from the parent to Ms. Belcher about access to the school microwave and ended with a question: "If my son is not allowed to warm up his lunch, can the school provide a balanced-lunch for him?" Pl.

R. 56.1, Exh. 3, Email from the parent to Ms. Belcher, 4/20/2007. It is unclear from the record whether this question constituted a formal request and if so, what the parent expected of the school at that time given that J.M.'s nutritionist had advised that the parent supply J.M.'s lunch from home in the short term and the parent had specifically apprised Ms. Belcher of this fact.*fn7

The parent sent another email on April 21, 2007 reiterating her request that the school heat J.M.'s meals and listing specific dates and times that Ms. Spurling had failed to heat up J.M.'s food. Opp. Mem. at 10.

That same day, the parent contacted J.M.'s pediatrician, Carl Barberis, and expressed her concerns about the school's inconsistent implementation of her lunch heating request. Doctor Barberis, in turn, filled out another glucose monitoring form ("April Glucose Form"), apparently without consulting J.M.'s Schneider physician, as well as a request form for "504 Accommodations," both of which the parent faxed to the school. Pl. R. 56.1, Exh. 1, at AM1- AM3.*fn8 The "504 Accommodations" request form did not include an order or request to heat J.M.'s lunch, nor did it request anything else specific, reiterating only J.M.'s general need for "accommodation for special dietary needs in school blood glucose monitoring." Pl. R. 56.1, Exh. 1, at AM3. Rather, Dr. Barberis wrote on the April Glucose Form: "[S]taff must supervise child during lunch/snack time to make sure he ingests adequate amount of food to prevent hypoglycemia." Pl. R. 56.1, Exh. 1, at AM1. The April Glucose Form included no blood glucose monitoring instructions as is customary; the only content on the form was the order regarding supervision. See Id.*fn9

The April Glucose Form and 504 accommodations request forms were received by the school nursing staff, and subsequently, sent to DOHMH because the supervision accommodation was "not something that is considered a nursing function." See IH Tr. 255-57 (Testimony of Sharon Hall, School Nurse Supervisor); Id. at 487-88 (Testimony of Sharon Braxton, DOHMH Nurse); FFD at 6, 15. Although DOE Regulation A-710, "Section 504 Policy and Procedures for Students" ("DOE 504 Regulations") requires that a "504 Team" be convened, with parental participation, "within thirty (30) school days of receipt of an initial written request for §504 Accommodations," in part to develop a "504 Plan," and the defendants concede as much, Def. R. 56.1 ¶ 3, no meeting was ever held, no formal "504 Plan" was ever developed for J.M., and no written decision was provided to the parent.*fn10 Compl. ¶¶ 40, 46, 50, 54; DOE 504 Regulations § (IV)(B)(1), (V).

Instead, on April 25, 2007, the parent received a call from Joanne Joyner-Wells, the Superintendent of District 29 and one of the named defendants in this matter, who denied the parent's accommodation request to heat up J.M.'s lunch. Opp. Mem. at 11. The Superintendent cited "potential liability (as the food could be overheated or spoiled)" on the part of Ms. Spurling and other school staff and the lack of "facilities or manpower" to provide for the accommodation. Def. R. 56.1 ¶ 20.*fn11 The Superintendent discussed alternative options with the parent, such as "training [the] student to make appropriate menu choices," Def. R. 56.1 ¶ 21, including counting carbohydrates from the school's menu, Opp. Mem at 11, or if uncomfortable with the school's lunches, "bring[ing] homemade lunches in a thermal container." Def. R. 56.1 ¶ 21. There is no evidence to suggest that the parent discussed the issue ofsupervision of J.M.'s food intake with the Superintendent. See Opp. Mem. at 11. Despite the parent's protestations, the conversation concluded with Ms. Joyner-Wells reiterating her denial of the parent's request to heat J.M.'s food.

At the time of the phone call, the Superintendent had not received either the March or April Glucose Forms, written requests for any accommodations, or any other documentation. Apparently, when Principal Andrew of P.S. 270 discovered that Ms. Spurling had been heating up J.M.'s lunch, the Principal "discussed this matter with [the Superintendent], and with her concurrence immediately directed staff to cease this practice." Andrew Decl. ¶ 7. The Superintendent's knowledge of J.M. and his condition was limited to his parent's request to heat his lunches. The phone call was the only point of contact between the parent and the Superintendent prior to the impartial hearing. FFD at 4.

Following this conversation, the parent sent another email to Ms. Belcher dated April 25, 2007, reiterating her request to accommodate J.M. by heating his food, but the email was also quite conciliatory, thanking the Assistant Principal for "reply[ing] to my e-mails. I really appreciate your feedback and diligence," and stating that "I have nothing against the school and its officials. I admire and respect you." Pl. R. 56.1, Exh. 3, Email from the parent to Ms. Belcher, 4/25/2007. When the parent did not receive a reply to this email, Opp. Mem. at 11, she emailed DOE School Chancellor, Joel Klein on May 1, 2007*fn12 and then on May 3, 2007, emailed the United States Department of Education, Office of Civil Rights, emailed and had a phone conversation with the DOE Office of School Improvement, and phoned the DOE Office of Legal Services and spoke with a DOE attorney, who informed the parent that "there are no provisions that mandate accommodations for students with special needs/disabilities who need to heat up their lunch." See Pl. R. 56.1, Exh. 3, Email from the parent to Office of School Improvement, 5/3/2007.

Each of the emails described J.M., his condition, and the parents' failed efforts to get the school to agree to heat J.M.'s food. The emails reveal a concerned parent, just one month into the reality of her son's lifelong illness, deeply frustrated by what she perceived to be a breakdown in communications and unreasonable obstacles blockading the health of her son. Importantly, the emails again reinforce the fact that the parent's lone concern, at least at that time, was the requested accommodation to heat J.M.'s food, as opposed to direct supervision of his meals by school staff, a concern never mentioned in any of the extensive correspondence.

D.Impartial Hearing

On May 4, 2007, the parent requested an impartial due process hearing*fn13 to challenge the DOE's refusal to heat J.M.'s homemade lunches, asserting that the DOE had violated Section 504, and also mentioning, without specifying whether she was alleging any violation of, the IDEA. See IHR at 1. The DOE did not submit an answer to the parent's request. See 8 N.Y.C.R.R. § 200.5(a) (requiring answer).

The Impartial Hearing took place over the course of five dates on May 21, June 4, June 14, June 27, and July 13, 2007, Def. R. 56.1 ¶ 13, and comprised nearly 600 transcript pages of testimony. See Pl. R. 56.1, Exh. 5. The parent, proceeding pro se,*fn14 called four witnesses: Superintendent Joyner-Wells, P.S. 270 school nurse supervisor, Sharon Hall, Dr. Carl Barberis, and herself. She also submitted forty-eight documents into evidence, FFD at 3, the majority of which were also submitted to this Court in the instant matter. The DOE called three witnesses: P.S. 270 Principal Andrew, the Nutrition Coordinator for OSFS, Herman McKie, and a P.S. 270 nurse employed by DOHMH, Sharon Braxton, and submitted its own evidence. FFD at 10-16.

Although the parent's request for the impartial hearing was limited to the narrow issue of heating J.M.'s homemade lunches, the questioning and testimony during the hearing often went far afield from that particular issue. Topics ranged from the more germane (i.e. whether the school ever took appropriate action in response to the April Glucose Form, including supervising J.M.'s lunch), see, e.g., IH Tr. 257-58, to the extraneous (i.e. allegations of "concealment of evidence," IH Tr. 403, or that the Principal interfered with her daughter's school lottery choice as retaliation for her lunch heating requests on behalf of her son), see e.g., IH Tr. 99.

The IHO's decision was rendered on November 16, 2007*fn15 and was limited solely to the issue of reheating J.M.'s food under Section 504.*fn16 Although the IHO concluded that the requested accommodation was "reasonable," and would not present any "undue hardship" to the DOE, and that the decision not to reheat the student's food was made "arbitrarily and capriciously in this instance," he still found against the parent under Section 504. FFD at 21. His decision rested on the fact that "the record does not support a finding that the accommodation is necessary." FFD at 22. In support of this assertion, the IHO cited evidence demonstrating that diabetics do not "need[] to eat hot food," the "variety of choices for the students concerning the school lunches," including that "the student's school lunches could be easily planned from the nutritional information contained on the DOE website and the school menus," and the dearth of "evidence that the student has been harmed" because of the DOE's refusal to honor the parent's request. FFD at 22.

On January 18, 2008, the parent appealed the IHO decision to the State Review Officer ("SRO"). On February 21, 2008, the SRO dismissed the parent's appeal for lack of Subject Matter Jurisdiction to review Section 504 claims. ECF Docket # 3, Exh. 6, SRO Decision, Appeal No. 08-002 at 3 ("New York State Education Law makes no provision for state-level administrative review of hearing officer decisions in Section 504 hearings and a [SRO] does not review section 504 claims.").*fn17

E.Remaining Material Facts

On June 21, 2007, during the pendency of the impartial hearing, Dr. Kreitzor submitted an updated Glucose Monitoring Form, which repeated the exact monitoring instructions she originally provided in March. ECF Docket # 3, Exh. 16 at 5-6. Notably, the form did not include the order for staff supervision of lunch, which had been included in Dr. Barberis's April Glucose Form, nor any order or request related to food heating. See Id.

On July 3, 2007, during the pendency of the impartial hearing, the parent sent a letter to the Chairperson of the Committee on Special Education, requesting an independent evaluation of J.M. pursuant to the IDEA, Section 504, the ADA, and the U.S. Department of Agriculture/Food Nutrition Serves. Pl. R. 56.1, Exh. 15. The parent never received a response to this request.

On July 13, 2007, on the last day of testimony in the impartial hearing, the parent hand delivered to Dr. Krigsman of DOHMH the same Glucose Monitoring and Accommodation Request Forms signed and already provided by Dr. Barberis on April 21, 2011. The only material difference was that the forms were dated July 12, 2007 and included an attached letter from Dr. Barberis again requesting the "availability of a microwave at school" and that the school "serve a school lunch in compliance with his dietary needs." Pl. R. 56.1, Exh. 13. The parent followed up several times with various DOE employees to check on the status of the renewed request. See ECF Docket # 3, Exh. 19, Impartial Hearing Request, 12/26/2007 (IHR II) at 2.

There is a dispute over whether a "504 Meeting" was actually convened in October 2007. The defendants allege that "there was a meeting scheduled to discuss the student's needs and develop an appropriate '504 Plan,'" and that "the Borough Nursing Director of the Office of School Health, the nursing supervisor and school nurse, the Department of Education Health Director, and a school administrator" appeared, but that the parent "failed to attend." Krigsman Decl. ¶ 10; Andrew Decl. ¶12. The parent contends that no such meeting was ever scheduled or held and accuses the defendants of manufacturing these declarations "in an effort to cover their own negligence in honoring their obligations to me and my son." Opp. Mem. at 54.

On October 25, 2007, the parent received a written decision from Janice Blake, the DOE Health Director, in response to the forms the parent had submitted on July 13, 2007. ECF Docket # 3, Exh. 16, Letter from Blake to the parent, 10/25/2007. The letter again denied the parent's request to have J.M.'s food heated and also denied the request for J.M. to be monitored as he eats. As to the latter point, Ms. Blake stated: "All lunch periods are under the supervision of school (sic) lunch aide and other school staff. The school lunch aide monitors the lunch period to ensure the safety and security of all students is maintained." Id. at 2. The letter also reiterates that "menus are available for review by contacting the school food staff . . . or visiting the [OSFS]'s website . . . or by entering 'school food' in the search box of the [DOE]'s website." Id. at 1.

On December 26, 2007, the parent filed another request for an impartial hearing to challenge the DOE's "failure to implement . . . my requests for my son . . . to have Special Dietary Accommodations under Section 504 and other statutes for the 2007-2008 School Year." IHR II at 2 (emphasis added). Despite following up by letter, several emails, and a phone call to the impartial hearing office, see ECF Docket # 3, Exh. 19 at 3-5, Letter to Impartial Hearing Office, 1/22/08, Emails to Impartial Hearing Office, 1/23/08, 2/4/08, and resubmitting the impartial hearing request on January 23, 2008, no hearing date was scheduled. Compl. ¶ 70.

F.Instant Matter

On March 7, 2008, the parent initiated the current action, pro se, on behalf of herself and her son, J.M. in the Southern District of New York. Shortly thereafter on April 29, 2008, the case was transferred to the Eastern District of New York. See ECF Docket #3, Exh. 3. Although the complaint was originally styled as an appeal of the administrative decisions of the IHO and SRO, the complaint went far beyond the scope of such an appeal.*fn18 On August 26, 2009, the defendants moved to dismiss the action pursuant to Federal Rule of Civil Procedure 12(b)(6), ECF Docket # 25, the plaintiff responded, ECF Docket # 27, and the defendants filed a reply. ECF Docket # 28. On March 1, 2010, I ordered that this motion be re-submitted as a motion for summary judgment with no disagreement by either party. See ECF ...


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