Elmira City Sch. Dist. v. New York State Education Department, 166 N.Y.S.3d 710, 80 IDELR 294 (App. Div. Apr. 7, 2022), is a major decision concerning the failure to provide nursing services that is becoming even more salient in light of the current shortage of nurses and other related service providers.

The case concerned a nonverbal, non-ambulatory student with, among other impairments, a condition causing mucous to accumulate in her throat and threaten asphyxiation in the absence of suctioning. For this condition, the student required the care of a one-to-one registered nurse at school. During the 2018-19 school year, the student was enrolled in a special education kindergarten program run by Greater Southern Tier BOCES, and was to receive the nursing services through the BOCES. But the student attended only one day and did not return for the rest of the school year. The parent believed that the nurse could not properly perform the suctioning procedure, and said she would not be comfortable allowing the child to attend school until the nurse received specific suctioning training. A problem also arose about a physician’s order and treatment plan the nurse said had discrepancies and may have been altered by the parent. BOCES determined that the student could not attend until BOCES received a corrected plan.

The corrected plan was finalized about December 11, 2018, but the parent still did not opt to send the student to school because the nurse had not received the additional suctioning training. Then in February 2019, the nurse resigned and the student was discharged from the BOCES program. The school district began to provide related services at a different building, and the parent provided medical care during those therapy sessions. The district never did succeed in obtaining a registered nurse for the student, and the student did not attend school for the rest of the school year. In March 2019, the district held the student’s annual review, but the parent disagreed with district recommendations for home schooling, home instruction, or what the school district ultimately pursued, residential placement.

The parent filed a due process complaint alleging a denial of free, appropriate public education (FAPE), specifically the lack of services to meet the student’s needs during the 2018-19 school year, and objecting to the proposal to put the student in a residential program. The hearing officer ruled that the failure of the student to receive educational services from September of 2018 to February of 2019 was due to the parent’s conduct in altering the physician care plans and not sending the student to the BOCES program until the nurse received additional training. From February 2019 onward, said the IHO, the district had an “impossibility of performance” defense because it was unsuccessful in finding a nurse who would accept the position. Id. at 714. Ultimately the IHO approved the residential placement proposal despite expressing reservations about it.

The SRO reversed in significant part, ruling that the district failed to offer the student FAPE from September 2018 to December 2018, and from February 2019 to June 2019. The SRO remanded the case to the IHO to determine an appropriate award of compensatory education. For the period before December 2018, said the SRO, the district should have taken measures to obtain a corrected care plan rather than relying on the parent and waiting two months for the paperwork. For December 2018 to February 2019, the SRO agreed with the IHO that the district was not responsible for failing to implement the IEP in that the parent’s concerns about the need for additional training were unfounded. As for February to June 2019, the SRO rejected the idea that the parent’s behavior caused the nurse to resign, and rejected any impossibility of performance defense on the part of the district, saying it did not excuse the statutory violation. Finally, the SRO overturned the IHO’s determination that the residential placement proposal was appropriate. The district sued to annul the SRO decision. The lower court dismissed the district’s appeal. The Appellate Division reversed in part and affirmed in part.

The appellate court sustained the district’s position about the September 2018 to mid-December 2018 period, saying that the nurse reasonably declined to provide care until a valid care plan was in place. As for the failure to do more to obtain an updated plan, the court relied on the parent’s objection to the nurse communicating directly with the physician, and said the nurse worked with the parent on the content of the plan and what was needed from the doctor, so there was no basis to conclude that there was an undue delay on the part of the district in obtaining the corrected plan.

But the appellate court agreed with the SRO’s conclusion that the district denied the student FAPE from February 2019 to June 2019. The IEP provided that the student “requires 1:1 supervision from a nurse for suctioning, feeding, transfers, toileting, and overall care.” Id. at 717. The SRO had good reason for its conclusion that the parent did not cause the nurse to resign. “In any event,” said the court, “‘the IDEA was passed for the purpose of protecting disabled children, not the jobs of school employees. Though the risk of staff leaving is regrettable, this factor can not detract from pursuit of the purpose of a congressional statute that seeks to help disabled children by creating a system of rights for their parents, even hostile parents, to advocate on their behalf.’” Id. at 717 n.3 (quoting Lillbask ex rel. Mauclaire v. Sergi, 117 F. Supp. 2d 182, 200 (D. Conn. 2000)).

Furthermore, the court stressed that “an impossibility of performance defense is generally at odds with the purpose of the IDEA. . . .” Id. at 717. The situation was different from a case in which there was a settlement agreement and changed circumstances made compliance with the agreement impracticable. If any impossibility excuse were permissible in another situation, it was not permissible here.

Finally, the court affirmed the SRO finding that residential placement was not appropriate, relying on least restrictive environment ideas. The court noted that the record demonstrated that the student received benefit from interaction with peers in the classroom, and that the residential placement decision was largely based on the inability to hire the nurse rather than the student’s needs.

The bottom line from the case is that shortages of personnel do not excuse failure to provide services the student needs, as provided in the IEP. Districts need to come up with solutions to the difficulties in finding and hiring qualified personnel to provide free, appropriate public education.