The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM DECISION AND ORDER
Bahram Omidian and Ramona Omidian ("plaintiffs") bring this action on behalf of their child, K.O., a student with a disability. In their first cause of action, plaintiffs allege that defendant Board of Education of the New Hartford Central School District ("the District") violated K.O.'s substantive and procedural rights under the Individuals with Disabilities Education Act, ("IDEA"), 20 U.S.C. § 1401 et seq., and Article 89 of the New York State Education Law. Plaintiffs seek reimbursement from the District for the tuition and costs associated with their unilateral placement of K.O. at The Family Foundation, a private residential school in Hancock, New York, during the 2004-2005, and 2005-2006 school years when K.O. was in tenth, eleventh, and twelfth grades. In their second cause of action, plaintiffs allege that the District violated K.O.'s rights under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, by discriminating against him because of his disability. Presently before the Court are the parties' motions for summary judgment.
Plaintiffs previously filed a complaint against the District seeking reimbursement for tuition and costs arising from their placement of K.O. at the Family Foundation during the 2002-2003 and 2003-2004 school years. Omidian v. Board of Ed. of the New Hartford Cent. Sch. Dist., 6:05-cv-0398. ("Omidian I"). Like the instant case, plaintiffs filed Omidian I after failing to obtain relief in a New York State administrative proceeding ("Proceeding I"). In that case, the Court granted the District's motion for summary judgment and dismissed plaintiffs' IDEA claim on the basis that the Family Foundation was not an appropriate placement for K.O. The Court, however, denied the parties' motion for summary judgment on plaintiffs' Rehabilitation Act claim, finding a question of fact as to whether the District's actions constituted discrimination.
The purpose of IDEA is "to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs[.]" 20 U.S.C. § 1400(d)(1) (A). The IDEA "mandates federal grants to states to provide disabled children with a 'free appropriate public education' in the least restrictive appropriate environment." Polera v. Bd. of Educ., 288 F.3d 478, 481 (2d Cir. 2002) (citing 20 U.S.C. §§ 1400(d)(1)(A), 1401(8), 1411(a)(1) & 1412(a)(5)(A)). A school district administers its services through the development of an "individualized education program" ("IEP") for each disabled child. 20 U.S.C. § 1414(d). In New York State, local committees on special education ("CSE") are responsible for developing appropriate IEPs. Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 123 (2d Cir. 1998) (citing N.Y. Educ. Law § 4402(1)(b)(1) and Heldman v. Sobol, 962 F.2d 148, 152 (2d Cir. 1992)). Parents who believe that the state has failed to provide their child with a free appropriate public education "may, at their own financial risk, enroll the child in a private school and seek retroactive reimbursement for the cost of the private school from the state." Gagliardo v. Arlington Cent. Sch. Dist, 489 F.3d 105, 111 (2d Cir. 2007) (citing Sch. Comm. of the Town of Burlington v. Dep't of Educ., 471 U.S. 359, 370 (1985)).
The facts from which this case arise are contained in the Memorandum-Decision and Order entered March 31, 2009, see Omidian I, Dkt. no. 27, familiarity with which is assumed. The following facts are from the exhibits and testimony received during a proceeding before Impartial Hearing Officer Martin Kehoe regarding the 2004-2005 and 2005-2006 school years.*fn1
("Proceeding II"). K.O., who has been diagnosed with, inter alia, oppositional defiance disorder and mood disorder, was classified as emotionally disturbed at age twelve.*fn2 K.O., at plaintiffs' expense, attended and resided at the Family Foundation year round since plaintiffs placed him there on April 8, 2003, at age fourteen, and through the 2004-2005 and 2005-2006 school years. The District's CSE has met annually to review K.O.'s IEP, but the parties have disagreed as to the appropriate education for K.O. since the 2002-2003 school year when the District issued an IEP recommending that K.O. attend a Board of Cooperative Education Services ("BOCES") special education class with twelve students, one teacher, and one aid. Plaintiffs have maintained that K.O. has required residential placement as a result of his emotional disability since 2001.
In a letter dated May 21, 2004, Race advised plaintiffs that an annual review meeting to discuss an IEP for the 2004-2005 school year was scheduled for June 23, 2004, and requested that they sign and return a release of information form so the District could obtain updated information on K.O.'s "current levels of performance". Ex. 6. Race also requested a "copy of any counseling, social work, psychological, or psychiatric evaluations conducted since September 2003". Id.
In a letter dated June 9, 2004, to Robin Ducey of the Family Foundation, Race requested information regarding K.O.'s progress. Ex. 8. Race also requested that the Family Foundation make one of K.O.'s teachers as well as a social worker or counselor working with K.O. available by phone for the upcoming CSE meeting. Ex. 8.
In a therapy note dated June 9, 2004, Jeffrey Brain, a consulting psychologist*fn3 at the Family Foundation, Transcript ("T."), p. 369, stated:
In his first two semesters here, he reports having a lax attitude and a tendency to give up. This most recent semester, he feels he has improved and is passing all of his classes. Spanish and Math are the classes he feels he is liking and doing best in. He is about 6 months behind; he is in 10th grade math, but in 9th/10th grade English. Behaviorally, he is doing well in school. He is not on any school related sanctions. He is hoping to be able to graduate with a regents diploma and is considering becoming a priest, having "found" God while here at the school.
In a letter dated June 11, 2004, "To Whom it May Concern", Renee Gotthardt stated: [K.O.] was enrolled at The Family Foundation School on April 3, 2003. His history of problems includes: disobeying rules and orders, verbal and physical aggression, substance use, academic underachievement, disordered eating habits, and psychological problems (treatment of problems included the use of Lexapro).
The Family Foundation School, a residential facility for high-risk adolescents, can provide [K.O.] with an environment where troubled adolescents have the opportunity to develop coping and social skills through counseling and group therapy. He received weekly group therapy and individual therapy is provided when required. The school provides psychological, moral, and academic training to educate students and help them to mature into healthy individuals. [K.O.] is beginning to make changes in his lifestyle and is incorporating the twelve steps into his life to deal with daily issues. He has discontinued the use of psychotropic medicine under the supervision of a psychiatrist, is now associating with a positive peer group, and is beginning to display appropriate behavior. I believe that he would be best served within this structured environment. It is likely that his functioning would continue to improve by remaining in this setting.
While [K.O.] has made significant improvement during his stay at The Family Foundation School, he still presents a series of emotional and functioning problems. He is socially immature, tells lies, and has difficulty in the classroom both in academic achievement and motivation. In a normal school setting, I believe that [K.O.] would revert to adverse behavior. He is still attracted to a deviant lifestyle, wishes to belong to a "cool" crowd, and has not developed a sufficient internal sense of self to be able to resist the influence of a negative peer group. He is easily distracted and his grades would suffer without a structured classroom environment. He still has a difficult time determining appropriate behavior and holding himself accountable for his actions.
In a "Teacher's Summary" dated June 11, 2004, "Mary - Global II" wrote that K.O. had missed five days and been late seven times since January 2, 2004. Ex. 23. K.O.'s teacher further indicated that he failed two homework assignments and had to redo two others, that he "hardly ever participates", but was "generally respectful". Id. K.O.'s teacher noted that K.O.'s interactions with peers appeared appropriate, and that his grades had improved, but that he "still fails too many quizzes tests". Id. K.O.'s teacher also commented that he "tends to get angry over little things; takes self too seriously at times; needs to develop a sense of humor." Id.
In a summary dated June 11, 2004, K.O.'s math teacher wrote that K.O.'s homework was "[a]lways completed", his class participation was "[a] little below what I would expect from him", that he was sensitive and "likes to joke with others" but "gets hurt feelings when they do the same to him". Id.
In a summary dated June 11, 2004, K.O.'s earth science teacher stated that he was sometimes late for class, completed all homework assignments on time, and participated in class discussions. Id. The teacher noted that K.O. "can act immature with staff, especially when he does not get his way", but he "gets along well with peers." Id.
In a summary dated June 11, 2004, K.O.'s English 10 teacher stated that his attendance and homework completion were good, but that he did not participate "as much as he could" in class discussions. Id. Additionally, K.O.'s teacher commented that he "is a likeable young man -his major problem in English is his lack of control when it comes to talking w[ith] his friends". Id.
Gotthardt stated that in June 2004, K.O. was "having some ups and downs":
but his grades were really dependent on his emotional stability at the time. If he was feeling good . . . then his grades reflected that . . . and if he were falling back into the sullenness and the depressive kind of quality about [K.O.], then his grades reflected that as well. He was having some difficulty relating appropriately socially to other students, was lying a great deal, was having trouble communicating with the other students in a way that . . . was honest and sort of heartfelt. Everything was very shallow and surfacey at the time. Really . . . was keeping people at an arms length away, didn't have any real close friendships at the time and that had changed.
Gotthardt explained that when K.O. first enrolled:
He was very sullen, very angry, really had a difficult time making and keeping friends and over the course of that year, in this sort of roller coaster pattern of ups and downs, there were months and weeks when he really was doing well socializing, finding some friends and then would sort of dismiss them all, somehow find a way to back them all off, and so there was change in behavior in that he was learning how to communicate with others. He wasn't so sullen and depressed but of course that depended on the moment, on whether or not he was being honest and that really was the key issue. When he got caught in a lie, he turned back onto the angry and sullen self.
K.O.'s mother testified that in June 2004, K.O. "still was very oppositional defiant . . . .
He still had difficulty being motivated to do his work, his homework at times, but it was improving. He was still having issues with the negative emotions, his anger, controlling his anger." T. 561.
A CSE meeting was held on June 23, 2004 to discuss the IEP for the 2004-2005 school year. Ex. 10. Race, school psychologist Leo Smith, a special education teacher, a regular education teacher, a parent representative, principal of Oneida BOCES Ellen Mahanna, the District's attorney, and K.O.'s mother were all present. Id. Plaintiffs' attorney, and Family Foundation guidance counselor Vicky Kravetsky attended by conference call. Id. The minutes indicate that K.O. had a dramatic improvement in self-esteem, "difficulty with being corrected", "gets along well until someone expects him to do his job", "when confronted gets sulky/angry". Id. The minutes state that K.O. was attending weekly group counseling sessions with a staff member "working thru 12 steps", but that K.O. had received "no individual counseling". Id.
Ellen Mahanna, principal for the special education programs at Oneida BOCES attended the CSE meeting and explained the Westmoreland BOCES program that the District planned to recommended for K.O. T. 442, District Ex. F. Mahanna testified that at the meeting, she learned that K.O. was doing "very well" and "had improved in his areas of need in regards to behavioral needs" and that she believed K.O.'s needs could be met in "the 12:1:1 adjustment program" at Westmoreland BOCES. T. 443. At the meeting, Kravetsky stated that K.O. had not received special education instruction or accommodations. District Ex. F.
K.O.'s mother testified that when she heard that the CSE was recommending the BOCES program for the 2004-2005 school year she was "extremely upset" and "knew it wasn't the right place for K" because "he needed a residential placement." T. 561. K.O.'s mother further stated that it "would have been a real issue, considering he was defiant" getting him to Westmoreland every day, which was approximately 45 minutes from home. T. 561-62. According to the minutes, plaintiffs' attorney informed the CSE that plaintiffs' believed K.O. required residential placement and rejected the IEP. District Ex. F., T. 562.
On July 20, 2004, the CSE issued the 2004-2005 IEP. Ex. 11. The IEP recommended that K.O. be placed in a class with twelve students, one teacher, and one aide in the Westmoreland BOCES program. Ex. 11. The IEP stated that K.O.'s grades were within average range, and that he completed homework on time and in an acceptable manner "but needs to be monitored." Id.
Regarding K.O.'s social development, the IEP stated that his self-esteem had improved, and that he got along well with his peers, but that he was sensitive and his feelings were hurt when peers joked with him. Id. The IEP reflected K.O.'s ninety-five pound weight loss. Id. Regarding his management needs, the IEP stated that K.O. "needs monitoring of homework, and to continue to improve peer relationships [sic]. He continues to work on self-esteem issues and accepting constructive criticism in an appropriate manner." Id.
The IEP recommended that K.O. be placed in a special education program outside general education, and receive individual counseling twice and group counseling once a week. Id. The IEP contained testing accommodations and indicated that the CSE would review K.O.'s progress after ten weeks to determine whether mainstreaming was possible. Id. The IEP contained goals and objectives related to: demonstrating appropriate study skills; identifying positive personal attributes; identifying and demonstrating strategies for interacting with peers; exercising self-control when he is frustrated or stressed; appropriate classroom behavior; and completing homework. Id. The IEP specified that a Regents high school diploma was "sought" and that K.O. planned to attend college. Id.
As stated above, plaintiffs rejected the 2004-2005 IEP and K.O. spent the 2004-2005 school year at the Family Foundation.*fn4 K.O.'s mother testified that K.O. did "very well" at the Family Foundation during the 2004-2005 school year. T. 564. Specifically, K.O.'s grades improved, he was involved in sports and drama activities, he lost approximately 120 pounds, he was sponsoring a newer student, was involved in personal training and helping other children who are overweight, and was head of the wait staff for his family unit*fn5 at the Family Foundation. T. 564-65.
A student accident report form dated October 4, 2004, indicated that K.O. cut his right leg when he "deliberately kicked a window out of anger." Ex. 23. K.O.'s mother testified that this incident occurred after "family leader" Robin Ducey told K.O. and a girl in the "family" that they had to stop their relationship, and that one of them had to "be removed from that family to break up this attraction". T. 578. According to K.O.'s mother, Ducey suggested that K.O. be removed "and he was not happy about it . . . . [s]o he . . . left the room . . . walked down the hall and deliberately kicked out one of the windows in the hallway." T. 579. K.O.'s mother testified that although K.O. went through a difficult time when the girl left the school, once she was gone "he seemed to turn around." T. 593. K.O.'s mother stated that his grades "increased dramatically", he became a leader in his family, and was involved in sports and drama. Id.
In a report dated November 10, 2004, Dr. Ivan Fras, consulting psychiatrist for the Family Foundation, stated that K.O. was referred to him because K.O. "[h]as been violent. Kicked in a window and pushed another student". Ex. 23. Dr. Fras stated that K.O. "is trying to talk his way out of the consequences of his behavior. Not very responsible. He does not impress me that he is trying very hard." Id.
In a letter dated November 10, 2004, "To Whom It May Concern", Gotthardt wrote:
[K.O.] was enrolled at The Family Foundation School on April 3, 2003, by his parents to provide an atmosphere of healing for him to work through academic issues, compulsive overeating, social limitations, and problem/destructive behavior. While he struggles daily with "doing the right thing," he has had success in repairing family relationships, has achieved a level of academic achievement commensurate with his potential, has learned to relate appropriately to peers and authority figures, and has learned coping skills to help control his problem behavior. [K.O.] is making efforts to amend any harm to others that may have occurred due to his prior impulsive behavior and anger-driven act outs. He is good physical condition, has lost quite a bit of weight, and has gained control over his compulsive eating habits.
However, [K.O.] still struggles with negative emotion on a daily basis. He often falls into resentment and self-pity, feeling licensed to break rules to make him feel like he is in control. Most recently, he was sanctioned heavily for having an inappropriate relationship with a female student. While the infraction seemed severe, we could see the progress that had been made in that [K.O.] was able to open up about the incident and take responsibility for his actions. He is learning, through trial and error, how to fall and pull himself back up again.
In a letter dated December 12, 2005, addressed to "Dear Sir/Madam" Dr. Fras wrote that K.O.: has made moderate progress since his enrollment in the Family Foundation School in April of 2003, however he continues to exhibit a great deal of negative behavior with occasional destructiveness.
I am convinced that outside of this highly structures therapeutic environment, this patient would not make progress, and would most likely relapse into severe behavioral difficulties.
My recommendation is for [K.O.] to remain at The Family Foundation School until he successfully completes the program.
In a letter dated December 13, 2004, K.O.'s father wrote to the Family Foundation to request that K.O. "have an updated Psychiatric evaluation from Dr. Fras." Ex. 37. In a letter to Dr. Fras dated December 17, 2004, K.O.'s father wrote:
I am requesting an updated Psychiatric evaluation for my son, K[.O.] who attends The Family Foundation School. The last evaluation you did was in August 2003. K[.O.] has been at the Family School for 20 months now and has made wonderful progress [i]n his academics. He just completed taking the PSAT and SAT, due to the guidance office recommending he take them. K[.O.] has lost over 100 lbs . . . . K[.O.] was able to participate in the golf program and is currently on the cheerleading squad for the School basketball team. The Counseling office advised us that K[.O.] was making great strides in group counseling and 12 step meetings. The Family School Social Worker has been available to K[.O.] on a as needed basis for individual counseling. In light of K[.O.]'s emotional difficulty in the past 2 months, I have asked the Family School to make arrangements for K[.O.] to receive weekly individual counseling by either Susan Runge MSW or Renee Gotthardt MSW. I would also like to have you follow him on a regular basis, perhaps monthly for Cog[nitive] and Behavioral Psychotherapy to address his negative emotions.
In a report dated December 12, 2004 Dr. Fras changed K.O.'s diagnosis from oppositional defiant disorder to oppositional defiant disorder, severe. Ex. 27.
Psychologist Brain began counseling K.O. in January 2005 after receiving a referral from K.O.'s family leader. T.373. According to Brain, K.O.: was having great difficulty managing his anger and managing his attitude toward his peers, towards schoolwork. He was underperforming, appeared to be very sullen, sulky and disconnected from what was important for his progress and movement forward. They had concern about the length of time that he had been here at the school and not made any appreciable progress with his program, which is his understemming of his issues and problems and pragmatic work towards resolving those.
Id. In a counseling noted dated January 10, 2005, Brain stated that K.O.: has no real strategies for dealing with his anger except to report that he "tries to let things go". His rationale for his behavior was that "I'm a baby if I don't get my way". Although there is opportunity to work with [K.O.], minimally on assisting with expanding and developing anger management skills, I didn't get the sense that he was willing or ready for this.
Ex. 39. After this counseling session, Brain testified that it was: clear to me that K was an individual who needed to do some work, some counseling, therapeutic work on that. What I was questioning, however, is K's commitment to work on that or his readiness really to do some serious work that had a foundation in the fact that he had represented himself that he had not been forthcoming with Dr. Fras.
In a letter dated February 5, 2005, to Dr. Charles Moss, a consulting psychologist for the Family Foundation, K.O.'s father wrote:
I am requesting that you re-evaluate my son . . . for your special group counseling sessions. Dr. Fras recently re-evaluated him only to find him still to be very defiant. Since K[.O.] continues after 22 months at Family School, to have negative emotions, I feel I need to advocate for him to get regular group counseling with either yourself, Susan Runge, or Renee Gotthardt. If he has been receiving such counseling from yourself or the Social ...