The educational environment in today’s schools has come a long way since the more traditional classrooms of the 1950s and 1960s where a premium was placed on memorization and good conduct. Recognizing that some students have different learning styles, physical needs or medical issues, school districts are now required to provide a free and appropriate education to all students including those with disabilities.
In light of this idealistic framework, what is the duty of care of a school district that contracts for special services with a private school as well as registered nurses who travel with and monitor a disabled student? Is the “sending” school district required to supervise the private “receiving” school or the nurses who provide monitoring services?
“No,” according to the Second Department in Begley v. The City of New York, The Forum School, et al. The facts of Begley are tragic. Jonathan Begley, age 9, suffered from asthma as well as allergies to a wide variety of food and substances. He was also diagnosed as autistic. When his local public school concluded that it could not meet his needs in district, it agreed to pay for a special school program at The Forum School as well as a registered nurse to monitor Jonathan on the bus to and from the school and during his school day. The nurses were found, interviewed and approved by Jonathan’s mother but paid by the New York Department of Education (“DOE”). Jonathan went into anaphylactic shock while at school when he came into contact with an unknown allergen. His nurse initially gave him nebulizer treatment to assist his breathing and then a series of epi-pens when it was suspected that he was having an allergic reaction. 911 was called but, due to heavy call volume, EMTs did not arrive until 20 minutes later.
The Second Department examined whether the DOE, as the “sending” school district, had a duty of care to supervise Jonathan who was not in its physical custody, care or control while attending The Forum School. Emphasizing that the DOE’s duty of care flowed from the school’s physical custody of and control over its students, the court concluded that the DOE did not breach any duty of care to Jonathan. The Second Department noted that the case might have been decided differently if Jonathan’s IEP failed to alert the “receiving” school that he had numerous allergies or that he required nursing services for his asthma and allergies.
Although his death was tragic, the DOE had strong facts that established that it appropriately evaluated Jonathan, referred him to a special school, and paid for ancillary nursing services at great cost to the “sending” school district. As noted in the decision, “this is not a case in which the DOE failed to properly identify, in its IEP, the child’s special needs, and the services necessary to provide the child with an appropriate education.”