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P.K. v. Bedford Central School Dist.

August 1, 2008

P.K. AND P.K., ON BEHALF OF P.K., PLAINTIFFS,
v.
BEDFORD CENTRAL SCHOOL DISTRICT, DEFENDANT.



The opinion of the court was delivered by: Conner, Senior D.J.

ECF CASE

OPINION AND ORDER

Plaintiffs P.K. and P.K., on behalf of their minor child, P.K., bring this action against defendant Bedford Central School District (the "District") pursuant to the Individuals With Disabilities Education Act ("IDEA" or the "Act"), 20 U.S.C. §§ 1401, et seq. Plaintiffs appeal from the decision of a New York State Review Officer ("SRO") that affirmed the decision of an Independent Hearing Officer ("IHO") denying their request for tuition reimbursement for their unilateral placement of P.K. in a private, residential school during part of the 2005-06 school year, summer 2006 and the 2006-07 school year. Plaintiffs seek reimbursement for tuition and related expenses as well as a declaration that these placements were appropriate and that the District failed to offer P.K. a free appropriate public education ("FAPE") as required by the IDEA. The parties now cross-move for summary judgment. For the following reasons, the Court grants summary judgment in favor of defendant.

BACKGROUND

The administrative record reveals the following facts.*fn1 P.K. was enrolled in the District's school system in kindergarten. (Ex. 22 at 1.) In December 2002, during his eighth-grade year, P.K. was admitted to the Partial Hospitalization Program at Four Winds Hospital ("Four Winds") due to "increased depressive symptoms, academic decline, increased irritability, decreased concentration, appetite loss, and sleep difficulties." (Ex. 120 at 27.) After P.K. was released from Four Winds, plaintiffs referred him to the District's Committee on Special Education ("CSE" or the "Committee") for evaluation. (Ex. 41.) On March 26, 2003, the CSE classified P.K. as emotionally disturbed and declared him eligible for special education. (Ex. 16 at 1.) P.K.'s Individualized Education Program ("IEP") provided for five hours of resource room services and one session of individual counseling per week. (Id. at 4.)

P.K.'s behavioral and emotional difficulties then began to increase. In May 2003, he was admitted to Four Winds as an in-patient due to suicidal ideation and mood instability. (Hr'g Tr. 147-48; Ex. 120.) The discharge/referral summary from this admission describes P.K. as prone to "explosive episodes" and "physical and verbal altercations with peers." (Ex. 120.) The summary notes that P.K. had been hospitalized three times in the past year due to his "severe difficulty with peer relationships and his inability to exhibit self control." (Id.) According to the hospital records, P.K. acknowledged having "an active drug problem." (Id.)

After P.K. was admitted to Four Winds, plaintiffs requested an emergency CSE meeting, which took place on May 8, 2003. (Ex. 15 at 3.) The CSE decided to begin looking into residential placements for P.K., but postponed a final decision until such time as the Committee had more information about P.K.'s most recent hospitalization. (Id. at 4.) P.K. was discharged from the Four Winds in-patient program and referred to the Four Winds Partial Hospitalization Program on May 21, 2003. (Ex. 120.) He was again admitted to Four Winds on an in-patient basis on June 10, 2003 due to "significant depression." (Ex. 13 at 4; Ex. 120.) After being discharged, P.K. spent six weeks in the Summit Achievement Program, a wilderness program located in Maine. (Tr. 171-72.)

The CSE reconvened on July 21, 2003 for P.K.'s annual review. (Ex. 13.) At the meeting, the CSE heard input from plaintiffs and a District school psychologist regarding P.K.'s recent behavior at home and at school. (Id. at 3-4.) The Committee also reviewed the psychiatric evaluation and discharge summary from P.K.'s hospitalization at Four Winds.*fn2 (Id. at 4.) Based on this information, the CSE determined that P.K. needed a residential placement and recommended he enroll in the Devereux/Glenholme Residential Program ("Devereux") for the 2003-04 school year (P.K.'s ninth-grade year). (Id.) Plaintiffs agreed with this recommendation. (Id.)

P.K.'s year at Devereux went well; according to Mrs. K., he was "very successful scholastically and socially." (Hr'g Tr. 180.) The Devereux staff concluded that P.K. was generally making progress towards his behavioral goals. (Ex. 80.) The staff also determined that P.K. remained reliant on the structured nature of the program and would benefit from additional time there. (Id.) When the CSE convened on June 3, 2004 for P.K.'s annual review, representatives from Devereux recommended that P.K. remain in their program. (Hr'g Tr. 188.) District staff, however, recommended that P.K. enroll in the District's Keys to Emotional Awareness ("KEA") program, a therapeutic support program located at the District's Fox Lane High School ("Fox Lane"). (Ex. 7 at 5.)

KEA is designed to provide academic and emotional support in a closely supervised, therapeutic setting. (Hr'g Tr. 1386, 1514-17.) The program features two resource-room periods, which give students a "home base" in which they can find a safe environment, relax and seek academic support when necessary. (Id. 1460, 1515-16.) KEA serves students who suffer from anxiety, a lack of self-confidence regarding academics, depression and suicidal ideation, as well as students who have undergone psychiatric hospitalizations and are returning from out-of-District placements. (Id. 1459.) During the 2004-05 school year, the program featured two special classes, two special educators, several teaching assistants and a full-time psychologist. (Id. 1515.)

Plaintiffs agreed with the District's recommendation, and P.K. enrolled in KEA during the 2004-05 school year. (Id. 1514.) Plaintiffs were eager to have P.K. return home, and they were encouraged by the fact that Dr. Christine Nichols, the KEA psychologist, had previously worked with P.K. at Four Winds. (Hr'g Tr. 183-84.)

P.K. began the 2004-05 year well. According to Mrs. K., he was "a model student," and plaintiffs were "thrilled" with his performance. (Hr'g Tr. 201.) Suzanne Hanna, a private therapist working with P.K., testified at the IHO hearing that from September 2004 through January 2005 P.K. did "very, very well." (Id. 844.) There is some indication, however, that P.K. began to engage in inappropriate behavior in November 2004. Sometime in that month Mrs. K. was called into school because P.K. had threatened to throw a potted plant at another person. (Id. 205.) Mrs. K. felt that P.K. had started to exhibit "old behaviors" again and was "agitated and acting out." (Id.) Plaintiffs informed the KEA team that P.K. would be resuming private psychiatric treatment and mood-stabilizing medication. (Id. 205-06.) The KEA team supported these decisions. (Id. 206.) On March 10, 2005 P.K. was suspended for one day for threatening another student. (Ex. 85.)

The CSE met for P.K.'s annual review on March 22, 2005. (Ex. 5.) Despite the incidents mentioned above, the Committee's outlook was positive. The general education and special education teachers present both reported that P.K. was doing well academically and making progress in KEA. (Id. at 4.) The psychologist reported that P.K. "has had a great year." (Id.) P.K. felt he was having "a good year," and plaintiffs said that they were "pleased with [P.K.'s] performance." (Id. at 5.) P.K. said that the KEA support services were working for him. (Id.) Based on these observations, the CSE recommended, with plaintiffs' agreement, that P.K. continue in KEA during the 2005-06 school year. (Id. at 1.) The IEP called for P.K. to attend KEA Special Classes three times per day, individual counseling once per week and counseling in an integrated setting once per week. (Id.) The IEP also provided for certain testing accommodations, including flexible scheduling, flexible seating and use of a word processor for extended writing tasks. (Id. at 2.)

In March or April 2005, P.K.'s problems with drugs and alcohol resurfaced. (Hr'g Tr. 227, 850-51.) On April 29, P.K. received a one-day suspension from school for "[t]hreatening and antagonizing another student to fight." (Ex. 86.) According to Mrs. K., it was in May that P.K. "started to have trouble and it really escalated." (Hr'g Tr. 214.) Around this time, Mrs. K. spoke with Hanna and Dr. Nichols about P.K.'s substance abuse and behavioral problems. (Id. 210, 224.) Hanna and Dr. Nichols also spoke with each other about how to get P.K. through the end of the school year and the summer; they both agreed that a strong, structured intervention would be necessary. (Id. 852-53.) According to Mrs. K., both Hanna and Dr. Nichols expressed concern that "maybe KEA . . . was not working for P.K. any more." (Id. 210.)

Hanna believes that around the end of the school year and during the summer, P.K.'s substance abuse and problematic behavior "really escalated." (Id. 853.) Mrs. K. testified that during the summer "P.K. pretty much just started to fall apart." (Id. 487.) Plaintiffs found they could not control P.K., and his depression and mood instability increased. (Id. 227.) P.K. did not receive extended year services during the summer. (Ex. 5 at 1.)

P.K. began to struggle shortly after returning to school in September 2005. (Hr'g Tr. 231-32.) According to Hanna, P.K. began the year with "a very poor attitude" and did not do well behaviorally or academically. (Id. 806.) Denise Taylor, the new KEA psychologist, believed that P.K.'s substance abuse was causing his difficulties at school during this time. (Id. 1849.) In September, P.K. was hospitalized again, this time at his request. (Id. 232.) According to Mrs. K., P.K. was "self-medicating again." (Id. 233.) Plaintiffs sent P.K. to Silver Hill Hospital ("Silver Hill"), which they selected for its drug-treatment program. (Id.) After P.K. had been at Silver Hill for a week, the staff there referred him to the Partial Hospitalization Program at Four Winds for treatment of his emotional and psychiatric problems. (Id. at 233-34.) Mrs. K. was in "constant contact" with Taylor throughout this time period. (Id. at 234.) Taylor provided Mrs. K. with the contact information for a substance-abuse counselor who worked at Fox Lane. (Id. 1852-53.)

P.K. was discharged from Four Winds on October 21. (Ex. 120.) He did not return to school immediately, however, although he was attending Alcoholics Anonymous ("AA") meetings. (Hr'g Tr. 1707.) Around this time, P.K. began to display increasingly aggressive behavior at home. He would yell and curse at his parents, push Mr. K., break things and throw objects around the house. (Id. 855-56.)

On November 1, plaintiffs met with the KEA team*fn3 to develop a plan for P.K.'s transition back to school. (Id. 1532-33.) P.K. would have a delayed start time so that he did not have to ride the school bus with all the other students (some of whom were considered bad influences), as well as an early dismissal time so that he could continue attending AA meetings. (Id. 1535.) The plan also called for increased adult supervision and support to help P.K. manage his drug and alcohol cravings. (Id. 1536.) The parties discussed ways in which P.K. could make up the schoolwork he missed while he was out of school. (Id. 1535-36.) On November 17, the CSE met and formalized the plan in P.K.'s IEP. (Ex. 3.)

P.K. returned to school on November 3. (Hr'g Tr. 1888.) At first, he showed a "very serious and directed focus" towards succeeding academically and behaviorally. (Id. 1864-65.) P.K. was doing some of his schoolwork, but also struggling with drug and alcohol cravings. (Id. 1864.) He had trouble concentrating and was often so tired in school that he put his head down to rest. (Id.; id. 2101.) According to O'Gorman, by December P.K. was "not producing" academically. (Id. 2103.) P.K. "had started to sleep a lot. He was not alert and much of his day was spent really just not engaging in school." (Id. 2101-02.) P.K.'s grades for the first quarter of the 2005-06 year consisted of two incomplete's, two F's and a 50. (Ex. 32.)

The extent to which P.K. was using drugs and alcohol in November and December of 2005 is unclear. According to Mrs. K., P.K. was attending AA meetings during this time and remained sober continuously for fifty days following the month of September. (Hr'g Tr. 240-41.) Plaintiffs were in regular contact with P.K.'s AA sponsor and drug-tested P.K. at home. (Id. 241.) Taylor testified that P.K. was not, to her knowledge, using drugs or alcohol during November and December. (Id. 1871.) But Hanna, P.K.'s private therapist, testified that P.K. was probably never sober for more than two or three days at a time, except when he was in the hospital. (Id. 842.) According to Hanna, P.K. was still drinking and using drugs, albeit less frequently, during the period of time that he was attending AA meetings. (Id. 841.)

It is undisputed that P.K. had relapsed into substance abuse by January 1, 2006. (Ex. 126 at 5.) A series of behavioral incidents followed, and after winter break ended P.K. attended school for only a few days before plaintiffs sent him back to Four Winds. (Id.) Sometime in early January, P.K. was arrested (outside of school) for his involvement in a knife fight, resulting in a felony charge. (Hr'g Tr. 252, 551-53.) On January 9, Monchinski called plaintiffs and asked them to pick P.K. up at school because he was "totally out of control." (Id. 250-51.) P.K. had been "antagonizing and threatening another student." (Id. 250.) While being driven home by Mr. K., P.K. tried to jump out of the moving car. (Id. 251.) This incident occurred two days after P.K. told Mrs. K. that he had thought about strangling himself with a vacuum-cleaner cord. (Id. ...


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