A.M. ex rel. J.M. v. NYC Dep't of Educ.

• Decision Date: 17 January 2012
• Docket Number: No. 08 CV 1962 (RJD)(LB).,08 CV 1962 (RJD)(LB).
• Citation: 840 F.Supp.2d 660,281 Ed. Law Rep. 854
• Parties: A.M., on Behalf of J.M., Plaintiffs v. NYC 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.
• Court: U.S. District Court — Eastern District of New York

840 F.Supp.2d 660

281 Ed. Law Rep. 854

A.M., on Behalf of J.M., Plaintiffs

v.NYC 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.

No. 08 CV 1962 (RJD)(LB).

United States District Court,

E.D. New York.

Jan. 17, 2012.

Aura Moody, Saint Albans, NY, pro se.

Janice Casey Silverberg, New York City Law Department, New York, NY, for Defendants.

MEMORANDUM & ORDER

DEARIE, District Judge.

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 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 ¹ and international instruments or treaties.² 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.³

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 4.⁴ 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”),⁵ 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,...