R.G. v. HILL et al

Filing 40

OPINION. Signed by Judge Renee Marie Bumb on 6/5/2017. (tf, n.m.)

[ECF No. 29]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

R.G., et al.,
Plaintiffs,

Civil No. 15-1731 (RMB/JS)
OPINION

v.
ELAINE HILL, et al.,
Defendants.

Appearances:
Jamie M. Epstein, Esq.
Jonathan S. Corchnoy, Esq.
107 Cherry Parke, Suite C
Cherry Hill, New Jersey 08002
Attorneys for Plaintiffs
William S. Donio, Esq.
Cooper Levenson, P.A.
1125 Atlantic Avenue, Third Floor
Atlantic City, New Jersey 08401-4891
Attorney for Defendants
BUMB, United States District Judge:

Plaintiffs J.G. and R.G. (“Plaintiffs”), the parents of
R.G., a multiply disabled student who suffers from a seizure
disorder, have filed the within Complaint on behalf of R.G.
Plaintiffs appeal the decision of the Honorable Todd Miller,
Administrative Law Judge.

Judge Miller found that the

Defendant, Voorhees Township Board of Education and its named

officials did not violate R.G.’s Individualized Evaluation Plan
(“IEP”) that was implemented to provide R.G. a Free Appropriate
Public Education ("FAPE“) pursuant to the Individuals with
Disabilities Education Act, 20 U.S.C. §§ 1400 et seq (“IDEA”).
With respect to the appeal, Judge Miller’s decision dealt with a
narrow issue:

whether R.G.’s IEP required the District to have

a nurse physically at Voorhees Middle School where R.G. attended
in the summer of 2014 as part of extended school year services
(“ESY”).

In a 17-page Opinion detailing his reasons, Judge

Miller denied Plaintiffs’ claim that Voorhees School violated
R.G.’s IEP by failing to place a nurse in the building where
R.G. would have received his ESY program.
7].

Opinion [ECF No. 12-

In their Complaint here, Plaintiffs allege violations of

IDEA (Counts 1 and 2), Section 504 of the Rehabilitation Act of
1974 (Count 3); Americans with Disabilities Act (“ADA”) and the
New Jersey Law Against Discriminations (“NJLAD”) (Count 4).
The named Defendants, the Voorhees Township Board of
Education, and the individual Defendants, Elaine Hill and Diane
Young (collectively the “Defendants”), now move this Court for
summary judgment as to all claims against them.

In response and

opposition, Plaintiffs withdrew many of their claims in light of
the fact that R.G. no longer resides within the Voorhees School
District.

Thus, the only claims remaining for this Court’s

decision are: whether the District violated R.G.’s IEP under
2

IDEA and Section 504 of the Rehabilitation Act, 29 U.S.C. § 701
et seq., Plaintiffs’ claims of discrimination under Section 504,
as well as claims of discrimination against the individual
Defendants Hill and Young under the NJLAD.

See Plaintiffs’

Brief in Support of Plaintiffs’ Response to Defendants’ Motion
for Summary Judgment (“Pl. Br.”), [Docket No. 32], at 3.1
I.

FACTUAL BACKGROUND
The following facts are taken from the parties’ Statements

of Material Facts Not in Dispute submitted pursuant to Federal
Rule of Civil Procedure 56(c) and Local Civil Rule 56.1(a).
Plaintiff R.G. was born on July 3, 2001, and has been
diagnosed with numerous disabilities, including, but not limited
to, a seizure disorder (Periventricular Leukomalacia),
cognitive, sensory, and auditory deficits along with other
learning related disabilities.

Defendants’ Statement of

Undisputed Material Facts (“DSUMF”), [Docket No. 29], ¶ 1;
Plaintiffs’ Response to DSUMF (“Pl. Resp.”), [Docket No. 32], ¶
1.

R.G. is classified as “multiply disabled,” but does not

1

As summarized by Plaintiffs: “Thus, the claims that remain
include the following: (1) The appeal of Judge Miller’s decision
regarding whether the District denied R.G. a FAPE under the IDEA
and Section 504 by failing to provide a school nurse within the
building which the IEP team determined to be the appropriate
placement for his Extended School Year (ESY) services to be given
during the summer of 2014; (2)Plaintiff R.G.’s claims of
discrimination against the District under Section 504, the ADA, and
the NJLAD as a result thereof; and (3) R.G.’s claims of
discrimination against the individual defendants, Elaine Hill and
Diane Young, under the NJ LAD.”
3

receive any treatment at home or on the weekends from a nurse.
DSUMF ¶¶ 3, 5, 7; Pl. Resp. ¶¶ 3, 5, 7.
In 2009, Plaintiffs moved to Voorhees, New Jersey, and
enrolled R.G. in Osage Elementary School (“Osage”).

During the

2013-2014 school year, R.G. was assigned to a fifth grade class
and became eligible for special education services.

While at

Osage, R.G. never required any form of emergency treatment by
the District staff or nurse.

There was never a 911 emergency

call made to treat R.G. with any form of medical intervention or
nursing services for his seizure disorder.
Resp. ¶¶ 7-11.

DSUMF ¶¶ 7-11; Pl.

Moreover, R.G.’s IEP at Osage did not specify

any nursing services as “related services” in any section.

The

IEP did, however, state “parental concerns” that when R.G. falls
“we need to be informed within minutes of his fall and an
incident report should be filed.”

Pl. Resp. ¶ 12.

The Individualized Education Plan
On May 28, 2014, the District held an IEP team meeting to
discuss R.G.’s transition to middle school and his IEP for the
upcoming 2014-2015 school year.

The meeting included Dawn

Danley, R.G.’s case manager, a school representative for
Voorhees Middle School where R.G. would be attending, R.G.’s
parents, and Dr. Howard Margolis, the educational consultant on
behalf of R.G.
implemented.

The IEP meeting was recorded, and an IEP was

DSUMF ¶¶ 14-15; Pl. Resp. ¶¶ 14-15.
4

In relevant part, the 2014 IEP provided that R.G. receive
extended school year services (“ESY”) during the summer,
consisting of 240 minutes of Special Education for four (4) days
per week, thirty (30) minutes of speech therapy, thirty (30)
minutes of occupational therapy, and thirty (30) minutes of
physical therapy.

These services were listed in the IEP under

the heading “Summary – Special Education Programs and Related
Services.”

Notably, there were no nurse services listed under

this section.

The IEP did not contain any related services for

the school nurse or mention any required or authorized medical
interventions by the school nurse.

The 2014 IEP did, however,

include the following “special alert” at the top of the first
page: “IF R.G. FALLS, TAKE HIM TO THE NURSE IMMEDIATELY AND
NOTIFY PARENT.”

Relatedly, the seizure plan on file did not

require any related nursing services, actual nursing services,
or medical interventions.

DSUMF ¶¶ 18-21, Pl. Resp. ¶¶ 18-21.

Finally, as the ALJ noted, at no time during the recorded IEP
did either party address whether a nurse must be physically
present in the Middle School building.
R.G.’s Placement at Voorhees Middle School
R.G.’s ESY at Voorhees Middle School was scheduled Mondays
through Thursdays, 9:00 a.m. to 1:00 p.m., commencing July 7,
2014, until August 14, 2014.

R.G.’s ESY included occupational

therapy, physical therapy, speech language therapy, and adult
5

support along with in-class special education.

The District

assigned R.G. to an ESY instructor who was a former athletic
coach.

R.G.’s ESY instructor was also trained in first aid

Cardiopulmonary Resuscitation (CPR) and Automated External
Defibrillator (AED) use.

The District also assigned an aide to

monitor and support R.G. during the ESY program.

DSUMF ¶¶ 32-

36, Pl. Resp. ¶¶ 32-36.
The District also employed two staff nurses for its three
district buildings that were open during the summer.

Although

no nurse would be staffed at Voorhees Middle School, where R.G.
would be attending, the District contended that the nurses were
located at school buildings within 5 to 10 minutes of the Middle
School.
away.

Plaintiffs, however, deny that the nurse was minutes

Pl. Resp. ¶ 31.
When the ESY program began, Plaintiffs refused to send R.G.

to Voorhees Middle School because they learned that a nurse was
not physically present at the school.
No. 12-3] at 288:13-14.

See 12/22/2014 Tr. [ECF

Plaintiffs admit that they had

“presumed” that a school nurse would be present.

Pl. Resp. ¶ 28

(“[T]he Plaintiffs admittedly presumed that a school nurse would
be in the VMS and, therefore, no additional statement regarding
nursing related services [in the IEP] was needed.”).

As

discussed, supra, the IEP does not explicitly state that a nurse

6

would be physically present at the school and no nursing
services are listed as related services.
In response to Plaintiffs’ refusal to send R.G. to school,
the District offered R.G. several alternatives:

a one-on-one

aide; the opportunity to move to Signal Hill, another elementary
school occupied with a summertime nurse (which placement had
previously been rejected by the IEP team due to R.G.’s age); and
homebound instruction ESY services to be provided by the
District in the home of R.G.

Plaintiffs declined each of these

offered alternatives and, consequently, R.G. did not receive
ESY.2

Pl. Resp. ¶¶ 38-41.

2

As mentioned above, many of Plaintiffs’ claims have been
withdrawn. Judge Miller did find, however, that the District
had to offer R.G. compensatory services for the educational and
therapeutic programs he missed during the summer of 2014. Op.
at 16 (“[T]he court’s directive to provide[] compensatory
education is not tantamount to deeming petitioner’s a prevailing
party but rather is just a reminder that R.G. is entitled to
receive what was lost during the summer of 2014.”). Plaintiffs’
response is that: “[A]ny such claim for future relief is hereby
withdrawn. Furthermore, also because R.G. no longer resides within
the District, any claim for Compensatory Education Services found
by Judge Miller to be owed to R.G. cannot realistically be provided
by the District and, if the Court should find that Plaintiff, R.G.,
is due such relief, then the relief needs to be converted into some
fund to be used for such Compensatory Education Services or
converted into an award of monetary relief in trust for Plaintiff,
R.G. Furthermore, because the primary purpose of the Extended
School Services (ESY) during the summer of 2014 was to acclimate
R.G. to Voorhees Middle School (VMS), R.G.’s new school since he
graduated from his elementary school, that purpose is and was moot
as soon as R.G. started school in VMS in the Fall of 2014.” Pl.
Br. at 2. It is not at all clear to this Court exactly what
Plaintiffs mean by, or by what authority they seek, a “fund . . .
to be converted into an award of monetary relief in trust for
Plaintiff.” If Plaintiffs wish to pursue such argument, they may
7

The Due Process Hearing
On September 4, 2014, Plaintiffs petitioned for relief with
the Office of Special Education Programs (“OSEP”) alleging that
the District violated the IDEA by not complying with the 2014
IEP by failing to provide a nurse at the Voorhees Middle School.3
The due process hearing was held over the course of several
days, and Judge Miller heard the testimony of several witnesses.
The ALJ Decision
Judge Miller issued his decision on February 6, 2015, finding
that the District had met its burden of proving that the IEP was
designed to provide R.G. a FAPE, and that the District was not
required to have an on-site school nurse for ESY.

Judge Miller

also concluded that even if the IEP required that a nurse be
physically present at the Middle School, there was no
substantial violation of the IEP by the District.

As he held:

The absence of any specific “related services” for the
nurse in the IEP; the short durations of the seizures;
lack of any prior treatment for seizures by the nurse;
the lack of a nurse at home where R.G. spends the
majority of his time; the lack of a nurse on field
trips, vacations, and all events outside school; the
file a motion for reconsideration that clearly sets forth the basis
for such relief and showing cause for their failure to present such
basis here.
3

Parents who are dissatisfied with the services or lack of
services by a school district may challenge the IEP through a
due process petition before an administrative law judge. 20
U.S.C. § 1415(b)(6). The Plaintiffs did not challenge the
substantive academic and thereapeutic program contained in the
IEP.
8

extensive safety precautions taken by the district;
and the historical evidence indicating that the role
of the school nurse was that of a report generator,
leads me to CONCLUDE that if two nurses were in nearby
buildings but not in R.G.’s building, it would be a de
minimis IEP deviation.
Op. at 15.
In summary, Judge Miller concluded:
[T]he district was not required by law or in the
student’s IEP to provide an “onsite school nurse” for
extended school year services (ESY); 2) the district
did not change or amend the school nurse provision in
the IEP without petitioner’s consent; 3) petitioner
missed a significant portion of his 2014 ESY by his
own choice and not by the district’s doing (P-8; R16); and 4) petitioner is entitled to compensatory
services notwithstanding the dispute herein.
Id. at 16.
As discussed, the sole issue presented to Judge Miller was
whether or not the language in the IEP that stated that if R.G.
falls, “take him to the nurse immediately and notify parent,”
required the school district to have a nurse on the school
premises.

Petitioners/Plaintiffs contended that it did, and

because a school nurse was not at the Voorhees Middle School,
the District violated the IEP.

Judge Miller’s decision set

forth his various conclusions.
First, Judge Miller concluded that, by statute, the
District was not required to have a school nurse physically
present at every school campus during the school year or during
its summer program.

He ruled:

9

Every board of education is required to hire at least
one certified school nurse. N.J.S.A. 18A.40-1. The
statute does not require the position to be full-time
Ramsey Teachers Assoc. v. Bd. of Educ. Boro of Ramsey,
382 N.J. Super, 241, 246 (App. Div. 2006).
Id. at 9.
The ALJ held that the school’s belief that the provision
only required that the nurse be on staff within the district was
logical.

“The district understood and interpreted the nursing

provision to mean a nurse had to be on staff within the district
at all times and that any time R.G. fell, a nurse must determine
whether the fall was caused by a seizure, or caused by an
accident unrelated to a seizure.”

This was similar to the

testimony given by R.G.’s mother at the hearing.

She testified

that: “[T]he primary reason for the nurse to see R.G. after a
fall was to document the reason for his fall so as to inform his
treating physicians.

If the seizures were occurring too often

his medications could be adjusted, if needed.”

Op. at 10.

The

ALJ also found that prior statements made by Plaintiffs to
District staff supported the District’s interpretation of the
language, that is, that the District need only have a nurse on
staff in District and available, not that the nurse be
physically present at Voorhees Middle School:
This conclusion is supported by prior statements of
petitioners to the district staff. On June 4, 2014,
the school nurse recorded that Mrs. G. was upset about
nobody notifying her that – ‘R.G. falling a few times
on May 27th. I’m not blaming you, but somebody is at
10

fault for not notifying me.’ She, (R.G.’s mother)
would like an accident report each time he falls (R10; R-12:14).”
Id.
Indeed, as Judge Miller noted, the exact language in
the “Parental Concerns” section of the IEP stated that when
R.G. falls, “we need to be informed within minutes of his
fall and an incident report should be filed.

Id.

The ALJ also concluded that R.G.’s IEP history supported
the District’s interpretation of the IEP language:
Indeed, R.G.’s prior IEP’s, while he was with other
school districts, did not have any nursing provisions
or special nursing alerts. There was also no evidence
that R.G. required nursing level treatment for his
seizures. The 2010 seizure action plan prepared by
R.G.’s treating doctor simply states contact the
school nurse (R-9). Likewise, there were no specific
nursing ‘related services’ identified or included in
R.G.’s IEP.
The nurse never treated R.G. for a seizure and never
observed any seizures in the two preceding years while
R.G. [w]as attending the Osage school. The only way
the nurse was able to document a seizure was by
discussing the underlying circumstances and
observations with those who were present, if or when,
R.G. fell. For example, on October 24, 2014, the
school noted that ‘Mrs. Dinocolas states at the field
trip to the Acme (R.G.) had pause for two seconds
around 10:00 a.m., teacher not sure if it was a
seizure. Notified dad’ (R-11). Mycolonic seizures
involve short stares, muscle twitches, laughing,
hiccupping according to the school nurse and
petitioners (R-9). That is why the nurse did not
observe or treat R.G. for any seizures over the past
two years. Her role was to simply report what the
teachers observed and/or treated R.G. for minor cuts
or bruises, if needed (R-10-12).

11

Id. at 10-11.
Finally, Judge Miller noted that R.G. never “required a
private nurse, for safety or medical purposes, in his private
life, either after school or on weekends.”

Id. at 11.

Likewise, he found:
It follows that if R.G. did not require clinical
nursing services after school or on weekends; and did
not require any related (skilled) nursing services
from the school nurse while at school, then he did not
need a school nurse to be on standby in the same
building while he attended summer school, in the event
he ‘fell or falls.’ I so CONCLUDE. There is an
absence of medical and factual basis demanding such
high level of service. Two years of nursing reports
clearly demonstrate that majority of time when R.G.
fell at school was entirely unrelated to seizure
activity (R10-12). The nurse would simply treat a
scrape, bump or bruise, if any, just like she would
for all other children, and notify petitioners. The
two nurses within the district during ESY could
provide this level of service.
Id. at 11-12.
The ALJ further held that putting aside the contested
language of the IEP, the District offered measures that would
address the Plaintiffs’ concerns relating to a potential fall by
R.G.

The ALJ held:
[N]otwithstanding the disagreement over the nursing
language, the district remained ready, willing and
able to provide R.G. his entire panoply of ESY
(academic and therapeutic) services at the VMS during
the summer of 2014 (R-5). When petitioners expressed
concern that a nurse would not be in their child’s
building, a one-on-one aid was offered to assuage
petitioners’ concerns and ensure that R.G. was
protected from falls or injury (R-5). Indeed, the ESY
special education teaching staff was apprised of all
12

unique needs for their summer students, including R.G.
R.G.’s special education teacher was trained in first
aid, CPR and use of an AED device (P-6). Therefore,
substantial precautions were instituted for R.G. and
others.
The district also tried to accommodate petitioners in
other ways including moving R.G. to a build[ing] with
a (summer time) school nurse (R-15). The building
location was different but the academic and
therapeutic services were substantially similar (R14). Major differences were the grade level of the
children. The modified location included third,
fourth and fifth graders whereas the children at VMS
would be students in sixth, seventh and eighth grade.
Special education students can be mixed with different
aged students for up to four grades. N.J.A.C. 6A:144.7(a)(2). Indeed, R.G. would also lose the
opportunity to become familiar with (transition) into
the VMS building and become familiar with the building
layout and students over the six weeks of summer.
This was an important consideration for petitioners,
so they rejected the district’s accommodation offer.
Finally the district offered petitioners home
schooling if they were not going to agree to send R.G.
to the VMS for the six-week summer program. This too
was rejected by petitioners.
I am mindful that the alternatives offered by the
district were not ideal from petitioners’ prospective
and the alternatives had some legitimate academic
flaws as discussed by Dr. Margolis. But these
alternatives illustrated that the district was
attentive to the circumstances and looked for options
to resolve the impasse.
Id. at 14.
The Appeal
Plaintiffs appealed the ALJ’s decision on March 9, 2015,
Compl. [ECF No. 1], asking this Court to overturn the ALJ’s
decision. The party challenging the ALJ’s decision bears the

13

burden of persuasion before this Court.

Ridley School District

v. M.R., 680 F.3d 260, 271 (3rd Cir. 2012)(“We now join our
sister circuits in holding that the party challenging the
administrative decision bears the burden of persuasion before
the district court.”).

Thus, because Plaintiffs lost before the

ALJ and are challenging that decision, they bear the burden of
persuasion.

Ridley, 680 F.3d at 270, n.3 (“Our conclusion today

that the burden lies with the party challenging the
administrative decision is entirely consistent with our previous
cases, in which we held that the burden was properly placed on
the parents before the district court.

In those cases, the

parents were the losing party before the hearing officer and
challenged the hearing officer’s decision in district court.”)
The reviewing court shall receive the administrative record,
“hear additional evidence” upon request, and base its decisions
upon “the preponderance of the evidence,” granting “such relief
as the court determines appropriate.”
1415(i)(2)(C).

20 U.S.C. §

The District now moves for summary judgment,

asking this Court to affirm the ALJ’s decision.
II.

LEGAL ANALYSIS

Summary Judgment
In the context of the IDEA, a motion for summary judgment
is “the procedural vehicle for asking the judge to decide the
case of the basis of the administrative record.” M.A. v.
14

Voorhees Twp. Bd. of Educ., 202 F. Supp. 2d 345, 359 (D.N.J.
2002) (quoting Heather S. by Kathy S. v. Wisconsin, 125 F.3d
1045, 1052 (7th Cir. 1997)), aff’d., 65 F.3d 404 (3d Cir. 2003);
see 20 U.S.C. § 1415(i)(2).

As the statute dictates, the Court

may also hear additional evidence if offered by the parties,
although none was received here.
The Court undertakes a “‘modified de novo’ review.” S.H. v.
State-Operated Sch. Dist. of Newark, 336 F.3d 260, 270 (3d Cir.
2003); H.M. v. Haddon Heights Bd. of Educ., 822 F. Supp. 2d 439,
445 (D.N.J. Sept. 27, 2011).

The Third Circuit in D.S. v.

Bayonne Board of Education, 602 F.3d 553, 564 (3d Cir. 2010)
(citations omitted), expounded upon that standard:
When considering an appeal from a state administrative
decision under the IDEA, district courts apply a
nontraditional standard of review, sometimes referred
to as a “modified de novo” review. Under this
standard, a district court must give “due weight” and
deference to the findings in the administrative
proceedings. Factual findings from administrative
proceedings are to be considered prima facie correct,
and if the reviewing court does not adhere to those
findings, it is obliged to explain why. The “due
weight” obligation prevents district courts from
imposing their own view of preferable educational
methods on the states.
Moreover, when an ALJ has heard live testimony and made
credibility determinations, the judge’s findings are given
“special weight,” and the reviewing Court must accept them
unless specifically identified extrinsic evidence in the record
justifies a contrary conclusion.
15

Id. at 564; S.H., 336 F.3d at

270-71.

As for the administrative law judge’s legal

determinations, they are reviewed de novo.

Muller v. Comm. on

Special Educ., 145 F.3d 95, 102 (2d Cir. 1998); P.N. v. Greco,
282 F. Supp. 2d 221, 235 (D.N.J. 2003).
For the reasons set forth below, the Court finds that
Defendants did not violate the terms of the IEP.
IDEA Claim
IDEA requires access to a FAPE, which means “special
education and related services” for children with disabilities
that are, in relevant part, provided in conformity with the
individualized education program under Section 1414(d) of IDEA.
20 U.S.C. § 1401(9).

In relevant part, “related services” means

“school nurse services designed to enable a child with a
disability to receive a free appropriate public education as
described in the individualized education program of the child.”
Id. at § 1401(26).

“Related services” also means medical

services, “except that such medical services shall be for
diagnostic and evaluation purposes only.”

Id.

To meet this

obligation, every school district must develop an IEP for every
disabled child that consists of “a specific statement of a
student’s present abilities, goals for improvement of the
student’s abilities, services designed to meet those goals, and
a timetable for reaching the goals by way of the services.”
Holmes v. Millcreek Twp. School District, 205 F.3d 583, 589 (3d
16

Cir. 2000).

The IEP must provide a plan that is designed to

provide “significant learning” and “meaningful benefit” to the
child.

Ridgewood Board of Education v. N.E., 172 F.3d 238, 247

(3d Cir. 1999).
In determining whether a school district provided a FAPE,
there is a two-part inquiry.

First, a court evaluates whether

the school complied with IDEA’s procedural requirement.

Second,

a court evaluates whether the IEP was “reasonably calculated to
enable the child to receive education benefits.”
Ctny. v. Rowley, 458 U.S. at 207.
at issue here.

Westchester

Only the second question is

Plaintiffs do not allege that the District

failed to implement an IEP that provided R.G. a FAPE, but
rather, that the District failed to comply with the IEP that was
implemented.
Thus the sole issue is whether the District failed to
comply with the 2014 IEP by not having a school nurse on-site.
The 2014 IEP did not contain any provision for a school nurse
under “related services.”

See 20 U.S.C. § 1401(26)(A) (defining

“related services” as those services that are “required to
assist a child with a disability to benefit from special
education”).

The only provision in the 2014 IEP that referenced

a nurse is the top of the first page under “Special Alerts”,
stating “[I]F [R.G.] FALLS, TAKE HIM TO THE NURSE IMMEDIATELY
AND NOTIFY PARENT.”

See J.T., 533 Fed. Appx. at 45 (a school
17

district should follow what is “specified in the student’s
IEP”).
At the due process hearing, the ALJ held that the District
bore the burden and production that it did not violate R.G.’s
IEP.

The District presented the testimony of Dr. Hill, Director

of Special Services for the District, who testified regarding
the difference between “nursing services” required for a special
needs student to learn and those that were required for R.G. in
the 2014 IEP.

DSUMF, ¶¶ 58, 67, 70, 79.

Dr. Hill noted that

R.G.’s nursing services were not written into the 2014 IEP as
substantive requirements, i.e., “related services,” id. ¶ 59, a
fact not genuinely contested, but were extraordinary precautions
taken for R.G.’s safety.

There is, in fact, a difference

between school nurse services necessary to permit the child to
benefit from instruction and precautionary measures.

Cf. Cedar

Rapids v. Cmty. Sch. Dist. v. Garret F. by Charlene F., 526 U.S.
66 (1999) (finding that a wheelchair-bound student on a
ventilator required the school district to provide the student
with nursing services during the school day as “related
services”); Irving v. Independent School Dist. v. Tatro, 468
U.S. 883 (1984) (finding that a student requiring a clean
intermittent catheterization was a “related service” and the
school district was required to provide to comply with its
requirements for a FAPE).

There was no evidence that the
18

District possessed to demonstrate to it that R.G. needed an onsite nurse to benefit from school instruction.

To the contrary,

the record demonstrated that the seizure plan on file with the
District did not require any related nursing services, actual
nursing services, or medical interventions.

At no time during

the IEP did Plaintiffs contend that an on-site nurse was
required for R.G. to learn.

Indeed, R.G.’s mother testified

that the “special alert” in the IEP was a precautionary warning
for reporting purposes to R.G.’s doctor.

Thus, the District was

only obligated to take the precautionary measures set forth in
R.G.’s 2014 IEP, including that “[i]f [R.G.] falls, take him to
the nurse immediately and notify parent.” Id. ¶ 17, 67.

Thus,

the Court agrees that the District’s interpretation of the IEP
was logical.

As discussed above, nursing services were not

under “related services.”

And, although the IEP language

stating that R.G. should be taken to the nurse “immediately” led
Plaintiffs’ to assume that a school nurse would be on-site, that
does not translate to an illogical interpretation of the IEP on
behalf of the District.

R.G.’s prior IEPs did not have nursing

provisions or any provision stating that R.G. required nursing
level treatment for his seizures.

Moreover, in the two

preceding years while R.G. was at Osage, the nurse never treated
R.G. for a seizure or observed any seizures.

The nurse’s role

amounted to reporting what the teachers observed or treating
19

R.G. for minor cuts or bruises.

There was also neither evidence

nor a contention from Plaintiffs contend that R.G. required a
private nurse after school or on weekends.
Plaintiffs contend that the District bore the burden of
proving by expert medical testimony that R.G. did not need the
on-site nursing support, and that it failed to meet such burden
because it presented no such testimony.

Plaintiffs introduced a

written note, written on the date of his first day of summer
school by Nurse Practitioner Joan Blair from Nemours, stating
that an on-site nurse was “medically necessary.”

Plaintiff also

contends that the ALJ should have permitted them to introduce
her telephonic testimony and that her opinion should have been
given greater weight as a physician’s assistant.

As the record

demonstrates, Nurse Blair was unable to attend the hearing and
Judge Miller denied Plaintiffs’ request to present telephonic
testimony.

The Court does not agree with Plaintiffs’

contentions.
For the reasons articulated above, the Court finds that the
District met that burden, as the ALJ found.

Plaintiffs contend

that only a “physician trained in the treatment and care of
seizure disorders like R.G.’s seizure disorder could give
competent medical evidence as to what kind of nursing support
R.G. needed.”

Pl. Opp. Br. at 8.

The District, however, met

its burden by introducing other pieces of evidence described
20

above.

Plaintiffs could have introduced such medical testimony

before the ALJ, and this Court, but did not.

In sum, the

District met its burden before the ALJ that the nurse was not
necessary to ensure R.G.’s “meaningful participation in
educational activities and meaningful access to education
benefits.”

Ridley Sch. Dist. V. M.R., 680 F.3d at 280-81 (3d

Cir. 2012).
Finally, as the ALJ concluded, notwithstanding the parties’
dispute over the IEP nursing language, the District produced
evidence that it provided a one-on-one aide and offered a oneon-one aide for ESY.

R.G.’s classroom instructor was informed

of R.G.’s condition and was trained in first aid, CPR, and AED
use.

The IEP program must provide a “basic floor of

opportunity” for the student, but it need not provide “the
optimal level of services,” or fulfill every program request by
the child’s parents.

Ridley, 680 F.3d at 260, 268-69 (internal

quotations omitted).

IDEA reflects the legislative intent

behind its promulgation, which was to provide public education
opportunities to disabled children, but not to impose such a
substantive burden on the states that goes beyond what is
necessary to make such access meaningful.

Rowley, 458 U.S. at

192 (1982).
For the reasons set forth above, the District met its
burden of proving that it did not violate the IEP, and that it
21

took measures to ensure that safety measures were in place for
R.G. in the event he had a seizure.

Plaintiffs do not contest

the substantive aspects of the IEP that went to the
instructional education.

In short, there is no genuine dispute

of fact as to this claim.

Summary judgment is thus entered in

favor of the Defendants.
Section 504 Claim
Plaintiffs also allege that the Defendants violated Section
504 of the Rehabilitation Act.

The Rehabilitation Act provides

that “[n]o otherwise qualified individual with a disability . .
. shall solely by reason of her or his disability, be excluded
from the participation in, be denied the benefits of, or be
subjected to discrimination” under any program that receives
federal funds.

29 U.S.C. § 794(a).

This prohibition was

extended to public school systems through § 504 of the
Rehabilitation Act.

Plaintiffs are required to prove that (1)

R.G. was disabled; (2) he was “otherwise qualified” to
participate in school activities; (3) the District received
federal financial assistance; and (4) R.G. was excluded from
participation in, denied the benefits of, or subject to
discrimination at Voorhees Middle.
F.3d at 253.

Ridgewood Bd. of Educ., 172

Only the fourth element is in dispute here.

Section 504 is similar to IDEA in that it requires public
schools to provide a FAPE, that is, to reasonably accommodate
22

the needs of the disabled child so as to ensure meaningful
participation in educational activities and meaningful access to
educational benefits.

Ridley, 680 F.3d at 281.

There is simply

no evidence in the record that R.G. was denied an education
required under the Rehabilitation Act.

Summary judgment is

entered in favor of Defendants.
Remaining Claims
Plaintiffs’ remaining claims fare no better.

To make out a

claim of disability discrimination under the ADA, a plaintiff
usually must establish that he (1) has a disability, (2) is a
qualified individual, and (3) has suffered an adverse action
because of that disability.

Turner v. Hershey Chocolate USA,

440 F.3d 604, 611 (3d Cir. 2006)(describing prima facie case
under ADA in employment discrimination context); Margot Nusbaum
v. CB Richard Ellis, Inc., 171 F.Supp.2d at 387 (same).

A

plaintiff may also state a claim for violation of the ADA by
showing that he (1) has a disability, (2) is otherwise qualified
to participate in a program, and (3) was denied the benefits of
the program or discriminated against because of the disability.
See Millington v. Temple Univ. Sch. of Dentistry, 261 F. App’x
363, 365 (3d Cir. 2008); Iseley v. Beard, 200 F. App’x 137, 142
(3d Cir. 2006).
A claim under NJLAD relies on the same analytical
framework.

McNemar v. Disney Store, Inc., 91 F.3d 610, 618 (3d
23

Cir. 1996).

Again, there is nothing in the record that

demonstrates that Defendants4 denied R.G. an education based on
his disability.
Accordingly, for the foregoing reasons, summary judgment is
granted in favor of Defendants.

Dated: June 5, 2017

s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

4

Because this Court finds no grounds for liability, it need not
address the issue of individual liability separately.
24