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July 11, 1986

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

Curtin, U.S.D.J.

The opinion of the court was delivered by: CURTIN


The issue in this case is whether the State of New York is required, pursuant to the Education for the Handicapped Act, 20 U.S.C. § 1400, et seq. [EHA], or the Rehabilitation Act, 29 U.S.C. § 794, to pay for the placement of a 13-year-old girl at a private institution in Pennsylvania. The child, Lara Antkowiak, suffers from anorexia nervosa and a variety of emotional problems. In May of 1985, Lara's father, John M. Antkowiak, unilaterally placed his daughter at the Hedges Treatment Center of the Devereux Foundation in Malvern, Pennsylvania [Hedges]. Defendant, the Commissioner of the State Education Department [the Commissioner] maintains that the State has no obligation under law to fund Lara's stay.

 Currently under consideration is plaintiff's motion for full or partial summary judgment. Plaintiff maintains that defendant had no authority, under federal law, to review part or all of an impartial hearing officer's decision which was fully favorable to plaintiff. The Commissioner's position is that he has the right to reconsider all issues addressed by the hearing officer. Oral argument was heard on the motion on May 2, 1986.

 The procedural history of this case is complex and reflects the court's efforts to obtain the views of State educational authorities within the confines of the EHA. To summarize, in January of 1985, the Buffalo City School District Committee on the Handicapped [COH] determined that Lara was not educationally handicapped and would not need any special education services. On February 27, 1985, the COH changed its recommendation, finding that Lara suffered from an educational handicap. It prepared an Individualized Educational Program [IEP] designed to meet her needs (see Item 3, Exh. D). She was found to require residential placement.

 Applications were made to six residential programs in New York State, but all six refused to accept Lara. In March of 1985, the COH sought the Commissioner's approval to contract with Hedges. On April 17, 1985, the State Education Department notified the COH that Lara's application could not be approved because Hedges had been removed from the Commissioner's approved list of residential out-of-state schools.

 Plaintiff then filed this lawsuit, seeking an injunction ordering the Commissioner to place Lara at Hedges. At this time, the COH was investigating three alternative placements. I found that plaintiff had failed to pursue the matter to decision before the COH and, if necessary, to obtain a due process hearing. Plaintiff was ordered to exhaust his administrative remedies (Decision and order of November 5, 1980). At the court's request, plaintiff submitted an affidavit detailing his financial status as well as affidavits from officials at Hedges. There was no immediate danger that Lara would be released from Hedges for failure to pay.

 Plaintiff then sought a due process hearing through the local Board of Education pursuant to New York State Education Law § 4404(1). *fn1" The hearing officer agreed with the conclusions of the COH and ordered Lara's placement at Hedges (Appendix 1).

 It should be noted that Lara's parents and the school district stipulated that Lara should be classified as emotionally disturbed. The hearing officer heard testimony from two psychologists and, based upon this and the stipulation, concluded that Lara fit the definition of emotionally disturbed and was in need of educational assistance. Lara was found to be unable to succeed in a regular classroom (Appendix 1). Her parents and the school district also stipulated that Lara needed residential placement at Hedges. However, as the hearing officer herself noted:

Ordinarily, a hearing officer does not have authority to order the placement of a child at a residential educational program that is not currently on the State Education Department's list of approved residential placements.

 (Appendix 1)

 In early 1986, the State Education Department informed the school district that Lara's placement at Hedges could not be approved. The district was told that Hedges was currently approved only for children aged 14 or older, and the day school was not approved. Plaintiff renewed his motion for an injunction before this court.

 The defendant again urged that plaintiff had failed to exhaust, since plaintiff had not sought a review by the Commissioner. The EHA provides that aggrieved parties to a hearing must be permitted to appeal; if there is no such appeal, the decision of a hearing officer is final. 20 U.S.C. § 1415(c) and (e)(1). In light of these provisions, I found that the plaintiff had exhausted his remedies as required by the EHA (Decision and order of February 3, 1986).

 However, defendant was given an opportunity to explain his position regarding New York Education Law §§ 310 *fn2" and 4404(2), *fn3" which the Commissioner maintained would permit him to institute an appeal on his own motion, citing Sidney v. Ambach, No. 4322-85 (N.Y.S. Sup. Ct., Albany County, January 21, 1986). In Sidney K., the court discussed sections 310 and 4404(2), noting that it permits the Commissioner to take his own administrative appeal when he disagrees with the local school district. There, the court implied that, under state law, the Commissioner may review all issues. In view of this case, the Commissioner was given an opportunity to explain his position under section 310; his response was to issue an order to show cause why the decision of the hearing officer should not be annulled.

 Although plaintiff had exhausted the procedures required under the EHA, I declined to take any further action pending the Commissioner's review (Decision and order of February 27, 1986). In reaching that decision, I noted that, pursuant to New York State law, the State Education Department must approve any out-of-state private placements. N.Y. Educ. Law §§ 4401(2) *fn4" and 4402(2)(B)(2) and (3). *fn5" I also noted that Lara's placement had been declined based on the limited approval given by the State of New York to the Hedges facility. For these reasons, some review by the Commissioner seemed appropriate. Furthermore, pursuant to 20 U.S.C. § 1413(a)(4)(B), the educational agency of a state receiving funds under the EHA has the duty to ensure that private facilities met state educational standards. At that time, I did not discuss which issues the Commissioner could review consistent with federal law.

 Plaintiff takes the position that the Commissioner's decision, issued March 14, 1986, should be annulled. The Commissioner determined that Lara had no "educationally handicapping condition." He also found that there was "an absence of any meaningful description of the proposed educational program the student would receive while placed at the Hedges Treatment Center . . . ." In light of these findings, the Commissioner ordered the Board of Education for the City of Buffalo to reconvene the COH for further proceedings in accordance with his decision (Appendix 2).

 The court notes that plaintiff initially urged that no review by the Commissioner was proper. Plaintiff now, without retreating from that position, urges that even if some review was proper, the scope of review undertaken by the Commissioner is proscribed by the EHA. Defendant maintains that the Commissioner has the authority to undertake a complete review of all aspects of the case.

 Plaintiff's key point is that the findings of the COH and the hearing officer are final as to whether Lara has an educational handicap and as to the Individualized Educational Plan developed by the COH to meet Lara's needs. Plaintiff urges that this finality is assured by federal law, citing 20 U.S.C. § 1415(e)(1) and 34 C.F.R. § 300.511. Of course, as plaintiff notes, in the event of a conflict between State and federal law, federal law is supreme.

 The EHA contemplates a cooperative effort among parents, teachers, and local boards of education. Together, they have the task of developing an IEP which is designed to enable the handicapped child to obtain the "free appropriate public education" guaranteed by the EHA. 20 U.S.C. § 1401(19); Hendrick Hudson Board of Education v. Rowley, 458 U.S. 176 at 181-182, 73 L. Ed. 2d 690, 102 S. Ct. 3034 (1982). In New York State, the local Board of Education establishes a committee on the handicapped composed of at least a school psychologist, a teacher or administrator of special education, a school physician, and a parent. The committee must invite the appropriate professionals most familiar with the child's handicap to attend any meeting concerning that child's IEP. N.Y. Educ. Law § 4402(1)(b)(1).

 Under the EHA, a state must provide parents with an opportunity to present complaints and, ultimately, an opportunity for a due process hearing. Parents who are dissatisfied with any aspect of their child's classification or placement must first resort to these procedures. 20 U.S.C. § 1415(b)(1) and (2). The hearing may be conducted by the state educational agency or by a local educational agency; the choice is left to the state. 20 U.S.C. § 1415(b)(2). *fn6"

 The State of New York has chosen to offer parents a due process hearing at the local level. N.Y. Educ. Law § 4404(1). Pursuant to the EHA, the decision of the hearing officer is final unless an aggrieved party to the hearing chooses to appeal. 20 U.S.C. § 1415(c) *fn7" and (e)(1). *fn8"

 After oral argument was heard, the court telephoned counsel for each of the parties requesting any further information they could provide as to the legislative histories of the EHA and the pertinent sections of the New York State Education Law. It was hoped that further light could be shed upon N.Y.S. Educ. Law §§ 310 and 4401, et seq., particularly § 4404(2), and how these sections mesh with the requirements of the EHA. Nothing pertinent was submitted by the defendant, and the court's own search has not proved illuminating.

 Plaintiff cited a section of the legislative history of the EHA which lends some support to his position. The House bill would have provided for a report to be made at the local level and forwarded to the state educational agency. A hearing would have been available at the level of the state educational agency. It is not clear whether a hearing would have also been available at the local level. According to the House bill, the state educational agency was to be permitted to review any "action" by the local agency on its own motion:

The State educational agency, upon appeal by an aggrieved party or on its own motion shall review the action of the local agency and conduct an investigation of the factual circumstances relating to the complaint, attempt to resolve the matter (by informal methods), and, upon a finding (after reasonable notice and opportunity for a hearing) that a local educational agency has failed to comply with any provision of this part, shall take whatever steps necessary to correct such failure . . . .

 1975 U.S. Code Cong. and Ad. News, Vol. 2, pp. 1500-01. *fn9"

 No similar provision appeared in the Senate bill, and the conference substitute did not include any such provision. The conference substitute adopted the procedures eventually provided in the Act itself. Id. at 1502-03. The provisions in the House bill indicate that Congress considered permitting the educational agency of a state to review any local decision, but rejected this approach in favor of finality after a hearing at either the local or state level.

 Few cases have dealt with this issue. Those which have disapproved of state laws which interfere with the finality of administrative hearing decisions. In Monahan v. State of Nebraska, 491 F. Supp. 1074, 1093 (D. Neb. 1980), aff'd in part, vacated in part, 645 F.2d 592 (8th Cir. 1981), the court held that there were sufficiently serious questions as to the validity of a Nebraska statute to justify granting a preliminary injunction. There, the State statute gave the State Commissioner of Education the authority to modify a decision made by an impartial hearing officer regarding a program for a handicapped child. The State statute appeared to conflict with the federal requirement that the decision of the hearing officer be final. The issue was not decided, since a change in State law rendered it moot. Rose v. Nebraska, 530 F. Supp. 295, 298 (1981), aff'd in relevant part, 687 F.2d 1164 (8th Cir. 1982), cert. denied, 460 U.S. 1012, 103 S. Ct. 1252, 75 L. Ed. 2d 481 (1983), modified after remand, 748 F.2d 1258 (1984), cert. denied, 474 U.S. 817, 106 S. Ct. 61, 88 L. Ed. 2d 50 (1986). (See also Helms v. McDaniel, 657 F.2d 800, 805-06 (5th Cir. 1981), cert. denied, 455 U.S. 946, 71 L. Ed. 2d 658, 102 S. Ct. 1443 (1982).

 In light of all of the above, I find that the Commissioner lacked the authority, under federal law, to review the hearing officer's decision at least to the extent that the hearing officer 1) affirmed the COH's finding that Lara was handicapped under the EHA; and 2) accepted the COH's IEP as to services which are educational or related services (see 20 U.S.C. § 1401 (16-19)). The Commissioner did not, in his order, discuss the approval status of Hedges or its ability to meet Lara's needs, which may have been permissible under the EHA. Therefore, the Commissioner's decision will not be considered. *fn10"

 Plaintiff now seeks either 1) full summary judgment and an order directing the defendant to implement the decision of the hearing officer; or 2) partial summary judgment as to the issues of Lara's status as a handicapped individual and her need for residential placement. Under the second alternative, plaintiff urges that the trial would be limited to the issue of the approval status of Hedges.

 For the same reasons that the Commissioner could not review certain aspects of the hearing officer's decision, neither will this court. Congress explicitly provided that parents, teachers, and local boards of education must develop a program to meet the needs of a handicapped child. By implication and practice, they also determine which children are educationally handicapped (See generally N.Y. Educ. Law § 4402(1)(a). When an impartial hearing officer reviews these determinations, Congress has determined that the hearing decision will be final unless appealed by an aggrieved party. 20 U.S.C. § 1415(e)(1). Here, plaintiff was not aggrieved by the hearing officer's decision.

 There is one vital distinction to be made, however. The local committee has the authority to design an IEP for the child. The IEP is a comprehensive statement of the educational needs of a handicapped child and the specifically designed instructional program and related serves designed to meet those needs. Burlington School Committee v. Dept. of Education, 471 U.S. 359, 105 S. Ct. 1996, 2002, 85 L. Ed. 2d 385 (1985). The definition provided in the Act itself clearly focuses upon educational services to be provided to the child:

The term "individualized education program" means a written statement for each handicapped child developed in any meeting by a representative of the local educational agency or an intermediate educational unit who shall be qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of handicapped children, the teacher, the parents or guardian of such child, and, whenever appropriate, such child, which statement shall include (A) a statement of the present levels of educational performance of such child, (B) a statement of annual goals, including short-term instructional objectives, (C) a statement of the specific educational services to be provided to such child, and the extent to which such child will be able to participate in regular educational programs, (D) the projected date for initiation and anticipated duration of such services, and (E) appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved.

 20 U.S.C. § 1401(19).

 Related services are also covered by the Act. A "related service" is a service which is required to assist a handicapped child to benefit from special education:

The term "related services" means transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, and medical and counseling services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a handicapped child to benefit from special education, and includes the early identification and assessment of handicapping conditions in children.

 20 U.S.C. § 1401(17).

 Both special education and related services are part of a "free appropriate public education" which will be provided at the public expense. 20 U.S.C. § 1401(18). Other services, however, such as certain medical services are not covered by the Act, and there is no obligation that they be publicly funded. 20 U.S.C. § 1401(17). Irving v. Tatro, 468 U.S. 883, 104 S. Ct. 3371, 82 L. Ed. 2d 664 (1984).

 One of the pivotal issues in this case is to what extent, if any, the State of New York must provide certain services for Lara. To do as plaintiff suggests and fully accept the IEP designed by the COH would serve only to bypass this crucial issue. Defendant cannot be required, even by a final decision of a hearing officer, to pay for services which are not covered by the Act. For instance, whether residential placement, as recommended by the IEP, is in response to educational needs or to medical, emotional, or social needs must be determined. McKenzie v. Smith, 248 U.S. App. D.C. 387, 771 F.2d 1527, 1534 (D.C. Cir. 1985).

 To the extent that the IEP developed by the parents and approved by the hearing officer provides for educational or related services as defined by the Act and in case law, it will be accepted by the court. However, at this point, it appears to the court that Lara has both medical and educational needs. Any decision as to defendant's financial responsibility can only be made after a trial on the merits. Both parties should be prepared to present evidence as to the nature of the services Lara Needs and those she is receiving. *fn11"

 Additionally, the New York State Education Department is responsible, under both state and federal laws discussed above, for approving out-of-state and/or private institutions. As the hearing officer herself noted, it is generally beyond the authority of a hearing officer to order placement in an institution such as Hedges. Since there is a dispute between the plaintiff and the Commissioner as to this point, issues at trial will also include the approval status of Hedges, its suitability to meet Lara's needs, and the possibility of any alternative placement. The parties must present evidence as to all these points.

 Plaintiff is granted partial summary judgment. The Commissioner's decision will not be considered by the court. The decisions of the COH and the hearing officer will be considered final as to whether Lara is handicapped under the Act and as to certain portions, with the limitations discussed above, of her IEP. The court will meet with counsel on July 18, 1986, at 9:30 a.m. to set a trial date and to take up any other matters which need to be addressed.

 So ordered.


Date of Hearing: December 9, 1985
Date of Decision: December 26, 1985

  Student's Name: Lara Antkowiak Date of Birth: Feb. 11, 1973 50 Saybrook Place Buffalo, NY 14209 Chronological Age: 12 years 10 mths.

 Current Designation of Handicapping Condition: Emotionally disturbed

Current Placement: Devereaux Foundation, Hedges Treatment Center

  Petitioner: Bruce Goldstein, atty. Respondent: Jerome Schad, atty Dr. & Mrs. John Antkowiak Buffalo City School 1200 Liberty Bank Bldg. District Buffalo, NY 14202 1800 One M&T Plaza Buffalo, NY 14203

Issue/Purpose of Hearing: Federal Judge John Curtin ordered the hearing in order to review the placement of the child.
Recommendations of Committee on the Handicapped: Classify as emotionally disturbed with residential placement.
Decision: Classify as emotionally disturbed with residential placement at the Devereaux Foundation. Hedges Treatment Center

  Hearing Officer: Rivona Ehrenreich 74 Mt. Vernon Road Snyder, NY 14226

Antkowiak v. Ambach
Civ. No. 85-532C

 Hearing Officer's Finding of Fact and ...

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