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November 4, 1985

LARA ANTKOWIAK, by her parent and natural guardian, JOHN M. ANTKOWIAK, Plaintiff, -vs- GORDON M. AMBACH, as Commissioner of the New York State Education Department, Defendant

The opinion of the court was delivered by: CURTIN


Pending before the court is defendant's motion to dismiss pursuant to Rule 12(b) of the Federal Rules of Civil Procedure and plaintiff's motion for a preliminary injunction. Plaintiff asserts claims under the Education of the Handicapped Act, 20 U.S.C. § 1400 et seq. ; the Rehabilitation Act of 1973, 29 U.S.C. § 794; and 42 U.S.C. § 1983 for violations of the due process and equal protection guarantees of the Fourteenth Amendment. The court has considered the briefs and affidavits and, on October 31, 1985, heard oral arguments from counsel.

The essential facts in this matter are not in serious dispute and may be summarized briefly.

 Plaintiff John M. Antkowiak is the father of Lara Antkowiak. He alleges that she has been deprived of an appropriate public education under the Education of the Handicapped Act. Plaintiff seeks an order directing that she be placed at the Hedges Treatment Center of the Devereux Foundation in Malvern, Pennsylvania [Hedges], and directing defendant to reimburse him for expenses incurred in making this placement at his own expense. Defendant urges that the complaint should be dismissed because plaintiff has failed to exhaust administrative remedies.

 Lara Antkowiak is now 12 years of age and is diagnosed as having anorexia nervosa and various emotional problems. In June of 1983, Lara's parents noticed that she seemed to withdraw from her friends and spent much of her time in her room. She did not seem to be growing. A pediatrician determined that her weight had remained constant for one year, from the end of the third grade until the end of the fourth grade. Throughout the summer of 1983, Lara lost weight. She was diagnosed as suffering from anorexia nervosa and was put on a special diet to gain one Pound per week. When the diet failed and Lara continued to lose weight, her parents resorted to force-feeding her.

 During 1983 and 1984, Lara was admitted three times to Strong Memorial Hospital in Rochester, New York [Strong], for treatment. Her latest stay in the hospital lasted from May 2, 1984, until May 15, 1985. After being in the psychiatric unit for a few months, she was placed in the adolescent unit in the hospital. During her hospital stay, attempts were made to have her receive individual tutoring. Finally, the hospital notified Lara's parents that since she no longer needed acute medical care which was provided at Strong Memorial Hospital, she had to leave the hospital no later than April 24, 1985.

 In the meantime, application had been made to the Buffalo City School District Committee on the Handicapped [COH] for assistance in obtaining a residential educational placement for Lara upon her discharge from Strong. On February 27, 1985, the COH determined that Lara suffered from an educational handicap and prepared a Phase 1 individualized Educational Program [IEP]. Applications were made to six residential programs in New York State, and all stated that they could not accept her.

 On March 21, 1985, the COH submitted to the State Educational Department [SED) an application for approval by the Commissioner to contract with Hedges. This facility had been used before by the SED for out of-state placement, but on April 17, 1985, the SED notified the COH that there was a hold on new admissions, so Lara's admission could not be approved.

 In the April 17, 1985, letter from the SED to the COH, the SED recommended that COH contact three additional in-state programs as potential placements for Lara. The applications were made, and rejections were received from each. The application to the Anderson School was rejected on April 29, 1985, the application to the Convalescent Hospital for Children on May 15, 1985, and the application to the Rhinebeck Country School on April 30, 1985.

 Because of the notice from Strong that Lara had to leave the hospital by April 24, 1985, this suit was instituted and, as originally filed, included Strong Memorial Hospital as a defendant. After the suit was filed, Lara's father, at the suggestion of the SED, visited two other facilities, but both determined that they could not meet her needs and could not accept her placement. Because she was not placed at any public or private facility and the hospital insisted that it could not care for her anymore, John Antkowiak made his own arrangement to have his daughter placed at Hedges on May 16, 1985.

 Apparently, the SED is allowing the other New York State handicapped students who are currently residents at Hedges to remain there throughout the remainder of the 1984-85 school year and for the 1985-86 school year if alternative educational placements cannot be secured. This continuance of current placements was approved in spite of the fact that on May 9, 1985, Hedges was informed that it was removed from the list of approved schools. Lara's educational program at the Devereux Day School is unapproved and has never sought approval.

 Since the institution of this action, there has been communication and correspondence between plaintiff, plaintiff's counsel, and the SED, but there have been no further recommendations made by the COH as to the placement of Lara. Plaintiff alleges that procedures provided by New York State education laws are inadequate and he had no alternative but to come to court. Exhaustion of State Remedies

 Under the administrative process established by the State of New York, parents have the right to appeal a recommendation by the local COH to the Board of Education, which then appoints an impartial hearing officer. The determination of the Board of Education after a hearing may be appealed to the Commissioner of Education. New York State Education Law § 4404(1). If dissatisfied by the decision of the Commissioner, the parents may then seek judicial review.

 Pursuant to the Education of the Handicapped Act, the state administrative remedies must be exhausted before a plaintiff turns to federal or state court. 20 U.S.C. § 1415(e)(2). The exhaustion requirement has been strictly enforced by the courts of this circuit. See Riley v. Ambach, 668 F.2d 635 (2d Cir. 1981). Plaintiff claims that exhaustion is not required in this case. He urges that, since he agreed with the recommendation of the COH that Hedges was the only appropriate facility found for Lara, ...

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