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April 17, 1996

Fulginiti, et als.
Roxbury Township Public Schools, et als.

The opinion of the court was delivered by: WALLS

 Walls, District Judge

 The parties have submitted cross-motions for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. This case concerns the outer parameters of a local School Board's obligation under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et.seq. ("the IDEA"), to provide a free public education and related services to one of its young, severely-handicapped citizens. For reasons stated below, summary judgment is granted in favor of the defendant, Roxbury Township Public Schools ("the Board").


 Carissa Fulginiti ("Carissa") was born March 26, 1988 to Sam and Judith Fulginiti of Landing, New Jersey, which is located within the Roxbury Township Public School District. The Fulginiti family consists of Carissa, her parents, older sister and younger brother. She was born with severe multiple disabilities which limit her abilities to communicate, swallow and move. She has severe dysfunctions of her central nervous system. At the age of one month, because Carissa could not suck or swallow without choking or aspirating, she was given a tracheostomy, which is a permanent opening into her windpipe. Additionally, a feeding tube was inserted directly into her stomach which allows her to "eat" through a surgically implanted "button."

 Carissa requires constant monitoring because her tracheostomy tube and air passages can become clogged with saliva and mucus. When necessary, a suctioning device is used to clear such blockages. The tube is suctioned either with a bulb syringe or a special "deep suctioning" device. If the clogged tube is not promptly cleared, Carissa's life can be threatened. Carissa's parents, who are not doctors or medical care providers, have been taught to perform the monitoring and suctioning procedures. She additionally receives these services from practical nurses whose care she receives for 16 hours per day, pursuant to her eligibility for participation in the federally-funded Medical Assistance Program through a Model III Medicaid waiver. 42 U.S.C. § 1936. The Fulginitis asserts that without this assistance, Carissa would have to be placed in an institution because they cannot provide the around-the-clock supervision she requires.

 Carissa lives at home with her parents and siblings. The 16 hours of Medical Assistance is provided to her when she is not in school in three shifts: (i) 11 p.m. to 7 a.m.; (ii) 7 a.m. to 3 p.m.; and (iii) 3 p.m. to 11 p.m. When Carissa is in school, the Fulginitis must monitor her for the shift from 7 p.m. to 11 p.m. Additionally, the Fulginitis supplement this by caring for Carissa on weekends and holidays and when absent from school due to illness, for the 3 p.m. to 11 p.m. shift.

 Since May, 1991, Carissa has been receiving special education and related services, the costs of which have been borne by the Roxbury Township Public Schools. During the 1991-92 academic year, Carissa attended the Warren County Preschool Handicapped class. In 1992-93 and 1993-94 she attended the Children's Center for Therapy and Learning. In 1994-95, she attended the Morris County Regional Day School. To participate in and benefit from public education, Carissa requires extensive "related services:" she must receive special education and speech, physical and occupational therapy, special transportation and nurse supervision. Most significantly, the supervision of a full-time nurse or another specially trained person is required during her transport to and from school, and while there, to monitor her tracheostomy tube and provide suctioning when necessary. According to the Board, the cost of this nurse is $ 56,000 per year. Put simply, if Carissa is to attend school, someone must be with her constantly to monitor her air passages and maintain their clarity. The Fulginitis contend that the monitoring and suctioning processes are services related to the provision of the free public education to which Carissa is entitled and which the School Board is obligated to provide.

we have recently been informed by our attorney that new interpretations of federal Medicaid regulations make it Medicaid's responsibility to fund your daughter C.'s nursing care while she is being transported to and from her educational program and during her school day.

 Therefore, in July, 1993 the Township proposed an IEP which no longer included payment for a full-time nurse to provide monitoring services during Carissa's day in school.

 The Fulginitis, who believe that the Township is required to provide this care, refused to agree to an IEP without tracheostomy tube monitoring and suctioning. They requested a "due process hearing" before an Administrative Law Judge ("ALJ"). The ALJ determined that the care which Carissa requires during the school day is not a "related service" under the Act. The ALJ reached his conclusion through the following analysis.

 First, he identified that the case turned on the issue of whether the services sought were

related services necessary for a child to benefit from special education and excluded medical services designed for treatment as opposed to diagnosis and evaluation.

 The ALJ identified the Supreme Court decision in Irvington Indep. Sch. Dist. v. Tatro, 468 U.S. 883, 82 L. Ed. 2d 664, 104 S. Ct. 3371 (1994), in which the Court held that an 8-year-old girl afflicted with spina bifida was entitled to have the school nurse or other school employee required to administer a simple medical procedure known as "clear intermittent catheterization" so that she could attend school. However, according to the ALJ, the determination of whether services are medical or "related to" is not simply dependent upon the status of the person performing the service. That is to say that services administered by a lay person are not a fortiori non-medical. Rather, the ALJ considered the relevant inquiry to be an analysis of the nature and purpose of the service, rather than the identity of the service provider. For this, the ALJ relied upon Detsel v. Board of Educ., 637 F. Supp. 1022 (N.D.N.Y. 1986) aff'd, 820 F.2d 587 (2d Cir.), cert. den., 484 U.S. 981, 98 L. Ed. 2d 494, 108 S. Ct. 495 (1987), where the appellate court held that the school board was not required to provide services to a student requiring "constant" care that "cannot be adequately provided by a regular school nurse who must care for other children." 820 F.2d at 588.

 The ALJ then examined the nature of the services that Carissa required. He found that she needed a person specially trained to: (i) monitor and suction her tracheostomy tube when necessary; (ii) feed her by way of the gastronomy tube; and (iii) understand her attempts at communication without language. The ALJ acknowledged that Carissa's parents, who are lay people, had been trained to perform those functions. However, he noted that parents perform many tasks for their children which, outside the parent-child relationship, would constitute the practice of medicine or involve the functions of a trained nurse. Thus, the ALJ concluded that "one who is to monitor and suction tracheotomy tubes require[s] training similar to that received by nurses."

 The ALJ continued to find that Carissa requires 24-hour monitoring because "without clear breathing passages she would not survive." He held that the nurse on duty at Carissa's school could not realistically be assigned the obligation of monitoring and suctioning Carissa's tube because of her responsibilities to the Center's other students. He similarly concluded that the classroom teacher could not be expected to administer these services. The ALJ therefore determined that without constant attention, Carissa would be exposed to a high risk of not being able to breathe. Thus, the nature and purpose of the services required is to maintain Carissa's very existence in order to be physically capable of receiving an opportunity for an education appropriate to her needs. Thus, he declared the Township

not legally responsible under the Act to provide C.F. with the nurse service sought here. Petitioners must arrange to provide the necessary nurse service for C. in order for her to receive the appropriate education to which she is entitled.

 The Fulginitis filed this lawsuit, pursuant to 20 U.S.C. § 1414(e) and 34 C.F.R. § 300.509 (1986), ...

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