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, during the 2002-2003, and 2003-2004 school years. 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 failing to evaluate K.O. and place him in the appropriate educational setting. Presently before the Court are the parties' motions for summary judgment.
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. Board of Educ. Newburgh Enlarged City Sch. Dist., 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 (citing School Comm. of the Town of Burlington v. Department of Educ., 471 U.S. 359, 370 (1985)).
K.O. was born on August 17, 1988. K.O. attended Hughes Elementary School in the New Hartford Central School District from kindergarten until sixth grade, where, generally, he did well. J. Ex. 8. Upon entering seventh grade at Ralph Perry Junior High School in New Hartford in the fall of 2000, K.O. became disorganized, and started to fail courses. T.1223-24. During that school year, school administrators and teachers disciplined K.O. thirty-seven times for, inter alia, insubordination, failure to do work, being disrespectful, not telling the truth, and using inappropriate language. K.O.'s mother stated that during that time, K.O. came home from school angry and became loud and verbally abusive. T. 1228-30.
According to K.O.'s mother, in October 2000, the District held a meeting regarding K.O.'s academic performance which plaintiffs, the guidance counselor, the dean of students, several of K.O.'s teachers, and K.O. attended. T. 1224. At the meeting, K.O.'s father explained that K.O. had congenital adrenal hyperplasia*fn1 and that it "was probably interfering with his behavior" because his endocrinologist had recently directed K.O. to stop the medication he had been taking for that condition. T. 1225. The District did not offer any services at that time. T. 1226.
In November or December of 2000, K.O.'s mother enrolled him in Sylvan Learning Center for academic assistance after school. T. 1227. K.O., however, became defiant, and it was difficult for plaintiffs to get him to attend. T. 1229.
K.O.'s mother testified that in November 2000, she met with Christine Porter, a District social worker, who informed her that K.O.'s "behavior was becoming awful in school". T. 1232-33. According to K.O's mother, Porter suggested that K.O. be seen by a psychiatrist or placed on medication for his behavior. T. 1232. At a later meeting with Porter, K.O.'s parents asked whether the District offered psychological evaluations. T. 1235. According to K.O.'s mother, Porter responded that it did not, but that the District referred people to Youth Empowerment. Id.
On March 15, 2001, Frantz Muse, M.D., MS, from the Youth Empowerment Project, conducted a psycho-social-medical assessment of K.O. J. Ex. 2. Dr. Muse diagnosed K.O. with oppositional defiant disorder ("ODD"), and recommended a treatment plan that included individual, parental, and family therapy. Id. Plaintiffs employed Youth Empowerment and followed through on the therapy recommendations. T. 1257-58.
On March 19, 2001, the District's instructional support team met to formulate an instructional support plan for K.O. P. Ex. 6, T. 798. The plan recognized K.O.'s insubordinate behavior with staff, refusal to comply with academic requests, failure of academic courses and frequent involvement in disciplinary actions as areas of concern. P. Ex. 6. The plan directed that a number of "modifications or adaptions" be implemented to "further support" K.O.'s "school achievement", including the maintenance of a behavior log by K.O.'s teachers documenting his behavior. Id. The plan also recommended that K.O. be referred for a psychological evaluation and to Persons In Need of Supervision Diversion ("PINS"). Id. An after school plan, restricted hallway passes, and weekly contact with a school counselor were also recommended. Id.
In a letter dated March 23, 2001, Porter referred K.O. to PINS and requested that K.O.'s case be accepted for review. P. Ex. 2. In an addendum to the referral, Porter stated that K.O.: has become increasing oppositional of authority both in school and at home. His behavior in school manifests itself in more passive aggressive forms of insubordination. He will not comply with academic requirements and, as a result, is failing all primary academic courses, despite his intellectual capability. At home, he defies parents' attempts to set limits, leaving the home whenever he chooses, and becoming physically aggressive when parents try to keep him to any parameters.
P. Ex. 3. The subsequent PINS evaluation recommendations included school-based counseling with a social worker, academic support, and psychiatric consultation. P. Ex. 8.
In letters dated April 9 and 26, 2001, K.O.'s father requested that the CSE evaluate K.O. to determine whether he had an educational disability that would make him eligible for services.
On May 3 and 7, 2001, school psychologist Leo Smith conducted a psycho-educational evaluation. J. Ex. 8. K.O.'s scores on the Wechsler Intelligence Scale for Children, Third Edition indicated cognitive functioning in the average range. Id. K.O. displayed ability in the average range on the Wechsler Individual Achievement Test in reading, reading comprehension, mathematics, and writing, and low average range in listening comprehension. Id. According to Smith, projective testing indicated that K.O. had issues with body image and authority figures in the home. Id. Smith noted that K.O. had been diagnosed with ODD and that he had a high number of discipline incidents "that appeared to be based in emotional difficulties." Id.
Consequently, Smith recommended, inter alia, that K.O. be classified as emotionally disturbed, placed in a program with structure, and undergo a functional behavioral assessment, counseling, family therapy, and psychotherapy. Id.
In a letter to the District dated May 11, 2001, Toby Taylor, M.D., K.O.'s physician, wrote that K.O. was: being treated for anxiety with obsessive compulsive characteristics. He is also under evaluation for Attention Deficit disorder. I started him on Clonidine two weeks ago to help with behavior and attention. I have started a new treatment with Zoloft for anxiety and obsessive compulsive disorder.
This letter is intended to help explain his current difficulties with school and to help you in formulating a plan to help him comply with school regulations and attendance. I believe his current medical and psychological problems have been a great contributor to his current school problems.
In a "Social/Developmental History" dated May 11, 2001, that Porter prepared for the CSE review process, J. Ex. 9, T. 820, Porter reported that K.O. had become aggressive toward family members and was unmanageable "when he is refused something he wants to do." J. Ex. 9. Porter also reported that at school, K.O. was close to failing all classes, had been "insubordinate, has brought cigarettes to school, has come to school under the influence of marijuana, has been verbally defiant of authority, has lied on numerous occasions to school staff, has been truant, and has refused to do homework." Id.
On May 14, 2001, the CSE held a meeting to discuss K.O.'s placement. J. Ex. 12. CSE members recommended a classification of "emotionally disturbed". Id. In view of K.O.'s need for a "highly structured environment" and in order to "assist with his management needs", the CSE further recommended K.O.'s placement in an "adjustment B[oard] O[f] C[ooperative] E[ducation] S[ervices]" ("BOCES") class consisting of twelve students, one teacher, and one aide. Id. The CSE recommended thirty minutes of counseling each week and that K.O. take tests in a "location with minimal distractions". Id. The CSE developed an IEP incorporating the classification of emotionally disturbed and the above recommendations. J. Ex. 13.
According to K.O.'s mother, the District planned to place K.O. in the BOCES James Street Academy program. T.1275. K.O., however, refused to go because he did not want to leave Ralph Perry Junior High School where all his friends were. T. 1281. K.O.'s mother testified that, at home, K.O. became increasingly violent and talked about suicide. Id. K.O. barricaded himself in his room, smoked in his room, threw silverware and knives in the kitchen when he was angry, and became physically aggressive toward family members. T.1282-83.
On May 30, 2001, K.O. was admitted to Four Winds Hospital in Saratoga, New York, where he was hospitalized for nine days. T.1284, J. Ex. 17, P. Ex. 13. Hospital records indicate that K.O. was admitted because of sleep and appetite disturbance, mood irritability, threatening and aggressive behaviors, and destruction of property. P. Ex. 13. K.O. was prescribed Wellbutrin and discharged with the diagnoses of mood disorder and ODD. Id.
In a letter dated June 7, 2001, plaintiffs, through their attorney, informed Lynda Race, the CSE chairperson, that they disagreed with the District's IEP and rejected the CSE's proposed placement of K.O. at the BOCES James Street Academy program. J. Ex. 16.
On June 12 and 25, 2001, Douglas Lipp, Ph.D., conducted an independent psychological evaluation at plaintiffs' request. J. Ex. 21. Dr. Lipp diagnosed K.O. with mood disorder NOS with depressive, manic and intermittent psychotic features, attention deficit/hyperactivity disorder ("ADHD"), and ODD. Id. Dr. Lipp opined that K.O. was "functioning quite maladaptively across all domains of his life - academically, within his family, society and indeed within himself." Id. Dr. Lipp recommended that K.O. be placed in a residential treatment facility with a "highly supportive and structured living and learning environment" where he could receive a "sophisticated, multi-disciplinary diagnostic work-up and an integrated treatment program" suitable for a "complicated emotionally-disturbed youngster with emotional, behavioral, attentional and physiological needs and issues." Id. Dr. Lipp further recommended that ant treatment facility to which K.O. is referred should provide individual psychotherapy, family therapy, parental counseling to plaintiffs, and psychiatric evaluation and monitoring. Id.
On June 26, 2001, the CSE convened to discuss K.O., determined that he should be in a "small class environment with structure", and recommended placement in Pinefield Day Treatment at the Mohawk Psychiatric Center in a special education classroom with eight students, one teacher, and one aide. J. Ex. 23, T. 86-87. Accordingly, the CSE issued a new IEP for the 2001-2002 school year incorporating this recommendation and providing for an extended (twelve month) school year. J. Ex. 24. Plaintiffs agreed to the IEP and K.O.'s placement at Pinefield. J. Ex. 25 K.O. began attending Pinefield in the summer of 2001. T.1312-13. Plaintiffs were responsible for driving K.O. to Pinefield daily, but encountered difficulty when K.O. would refuse to go to school. T.1316. At one point, a Pinefield case manager and teacher went to K.O.'s home to try to get K.O. to go to school. Id. Plaintiffs encountered difficulty at the end of the school day as well because K.O. would leave Pinefield before they arrived to walk into New Hartford. T. 1319.
K.O.'s mother testified that while he was at Pinefield, things became "very bad" at home.
T. 1320. K.O. would sneak out of the house at night and became violent. Id. K.O.'s mother began to research therapeutic residential schools. T.1319. In the latter part of the summer, plaintiffs received a letter from the Devereux Foundation in Brandywine, Pennsylvania, regarding a residential program for ODD. T. 1323.
On July 20, 2001, K.O. was admitted to the Devereux Foundation. T. 1328. In a letter dated July 20, 2001, plaintiffs, through their attorney, informed the District that the Pinefield Day Treatment program was not appropriate and that they had placed K.O. at Devereux. J. Ex. 28. Plaintiffs requested that the CSE reconvene and adopt K.O.'s placement at Devereux. Id.
K.O., however, stayed at Devereux for less than two weeks because plaintiffs observed "no education going on". T.1324. On August 9, 2001, plaintiffs placed K.O. in the residential program at KidsPeace. T. 1327, J. Ex. 32. KidsPeace is approved by the State of New York for special education and "provides a variety of mental health, psychiatric treatment, ranging from community services through inpatient hospitalization" to individuals under 21 years of age. T. 652, 587.
Upon admission, K.O. underwent a psychiatric evaluation by Nirmala Yarra Karnam, M.D. J. Ex. 32. Dr. Karnam diagnosed K.O. with Intermittent Explosive Disorder, ODD, and a Depressive Disorder. Id. Dr. Karnam recommended "[r]esidential treatment with individualized educational programming to prevent acute hospitalization because [K.O.] was unable to benefit from outpatient treatment, and was aggressive to people." J. Ex. 32. Dr. Karnam further recommended individual, group, recreational, and family therapy as well as consultation with a dietitian and physician regarding K.O.'s diet and weight. Id.
On August 20, 2001, the CSE reconvened to review K.O.'s IEP for the 2001-2002 school year. J. Ex. 33. The CSE considered the KidsPeace recommendation that K.O. be placed in a residential program where he would receive comprehensive academic and social emotional treatment. T.110. The CSE revised K.O.'s IEP to include residential placement at KidsPeace for twelve months. J. Ex. 34.
At KidsPeace, K.O. was supervised 24 hours per day and all of his time was structured. T. 705, 707. K.O. received individual therapy on a weekly basis, and more frequently when necessary, from Gordon Wells, a KidsPeace employee and "mental health professional" with bachelor and doctoral degrees in psychology. T. 587-88, 603. Wells also provided weekly family therapy to K.O. and plaintiffs. T. 603-04. K.O. received recreational therapy from a certified therapist at KidsPeace regarding social situations, working in groups, and using leisure, as well as training in anger management and coping. T. 711, 612.
K.O. continued seventh grade at KidsPeace. T. 592-93. K.O. was in a classroom with twelve students, one teacher, and one aide. T. 651. Alicia Aston, supervisor of education at KidsPeace, testified that the class was "[s]elf-contained", meaning that the students did not switch classes and had the same teacher all day except for art, music, physical education, and computer classes. T. 651-52. According to Aston, K.O. made friends, and responded to the small class size ratio. T. 666-67.
K.O. completed seventh grade in December 2001 and eighth grade in June 2002. T. 652-53. K.O.'s final report card for eighth grade at KidsPeace indicates that K.O. received an A or a B in every class. J. Ex. 51.
In April or May 2002, plaintiffs began discussions with KidsPeace about K.O.'s discharge.*fn2 T. 1336. On May 15, 2002, Aston sent a facsimile to Lynda Race at the District with "suggested goals and objectives and updated test scores for upcoming IEP" for the 2002-2003 school year. J. Ex. 46. These included recommendations in English, writing, math, world cultures or global history or global studies, earth science, art, music, computer science, health, physical education, and in the area of behavior. Id. The behavioral goals suggested that K.O. "improve his short-term memory skills", "accept responsibilities in the classroom", "follow directives from teacher and school personnel", "respond appropriately to redirection from in academic and social situations", "will make appropriate comments to other students and school personnel", "will communicate with others in an acceptable manner in the classroom", and "respond appropriately when given constructive criticism." Id.
Aston sent a second recommendation to the District on May 20, 2002, stating that K.O. "will benefit from the following accommodations": a small classroom size; low student-teacher ratio; extended time for assignments and for assessments; availability of a calculator; subject matter that is broken down into small or "chunked" segments to better facilitate learning; and a grammar, spelling, and punctuation checklist for all written work. J. Ex. 47. Aston testified that she felt that if the IEP incorporated the suggested goals and objectives set forth in the report she sent to Race, K.O. could have returned to the District and been successful. T. 691-92.
Wells testified that the recommendation at the end of the 2001-2002 school year was that K.O. could function at home with support services. T. 630. According to Wells, K.O. had progressed in treatment and a less restrictive program would best meet his therapeutic needs. T. 632. Wells stated that K.O. did not need twenty-four hour supervision because he had demonstrated "over a significant period of time he could maintain himself". Id. Wells testified that K.O. had developed social skills to allow him to interact in all social settings. T. 633.
On June 12, 2002, the CSE convened to discuss K.O.'s placement in ninth grade for the 2002-2003 school year. J. Ex. 49. Race testified that Aston and Wells had informed her that K.O. would be discharged and recommended that K.O. be placed in a small structured classroom and that he receive counseling services. T. 118. At the meeting, CSE members recommended that K.O. return to Ralph Perry Junior High School and be placed in a classroom with twelve students, one teacher, and one aide, and that he receive counseling twice per week, access to a calculator and word processor with spell and grammar check, and extended time to complete tests. J. Ex. 49. Additionally, the District accepted responsibility for K.O. to remain at KidsPeace through the summer to prepare for him for the transition back to the District. T. 1342.
The IEP for the 2002-2003 school year incorporated these recommendations and identified K.O.'s need for: "extended time to complete his assignments"; "information to be broken down into smaller segments"; "a structured classroom with mainstreaming opportunities"; "counseling to address strategies for anger management and problem solving"; the development of a "more positive self-image due to weight issues"; and participation "in physical activity." J. Ex. 50.
The parties dispute whether J. Ex. 50 or P. Ex. 27 is the final IEP for the 2002-2003 school year. P. Ex. 27 contains greater detail and additional goals for K.O. with regard to improving his short-term memory skills, appropriate behavior in the school setting, and key concepts in Math 1. P. Ex. 27. Race testified that P. Ex. 27, which included the additional goals not contained in J. Ex. 50, was the final IEP for 2002-2003. K.O.'s mother disputed Race's assertion during her testimony before the IHO, and stated that she never received P. Ex. 27. The SRO relied on J. Ex. 50 as the 2002-2003 IEP.
In a letter dated August 22, 2002, plaintiffs, through their attorney, advised the District that they rejected the proposed IEP for the 2002-2003 school year, and that they were placing him at The Storm King, a private boarding school, in Cornwall-on-Hudson, New York. J. Ex. 53.
K.O.'s mother testified that she believed he was not prepared to return to the District because he had not received homework training and she felt "emotionally it would be very traumatic for him". T. 1348.
Brian Morgan, dean of students, testified that Storm King has approximately 100 students and 30 faculty members, offers a high school curriculum, and is "focused on helping young men and women succeed." T. 1071, 1075, 1072. Morgan testified that Storm King does not provide special education services and that it is "not equipped or structured for the needs associated with special education children." T. 1076. Morgan stated that although there was a psychologist on staff, he worked as an admissions director. T. 1077.
According to his mother, K.O. did "okay" at Storm King during the first month. T. 1351. Over time, however, K.O.'s grades and behavior deteriorated. T. 1355-56. K.O.'s mother testified that K.O. stopped going to class, was not doing homework, got into arguments with other students, and started to gain weight. T. 1351, 1352. Additionally, K.O. did not take care of his room or himself. T. 1357.
In January 2003, K.O. began treatment with Mellen Lovrin, a nurse practitioner in psychiatry and began meeting with psychologist Lesley Pearl, Ph.D, on a weekly basis.*fn3 J. Ex. 58. Lovrin met with K.O. five times. Id. Lovrin stated that K.O. "presented with a depressed mood and reported having difficulty with concentrating and impulsivity." Id.
In a letter dated February 8, 2003, Morgan informed plaintiffs that K.O.'s readmission to Storm King for the 2003-2004 academic year was "in jeopardy" because of his "non-compliance to school/community rules". Id. Morgan testified that K.O. "had a smoking issue", involvement in a physical altercation with a student, had removed a knife from a faculty department and lied about it, and struggled to "exercise really proper judgment". T. 1088.
In a letter dated March 17, 2003, Roger Richard, associate head of Storm King wrote to plaintiffs to inform them that K.O. had been placed on academic probation because his winter trimester grade point average fell below 2.0. J. Ex. 58. A Storm King report card dated January 29, 2003, indicated that K.O. had received four Ds and three Cs, and had a cumulative grade point average of 1.24. J. Ex. 60.
In a letter dated April 3, 2003, Lovrin indicated that K.O.'s mood had improved, but there was no: change in impulsivity based on self-reports as well as reports from his home and school. The plan is to assess for changes in mood, including symptoms of hypomania and mania; to add a mood stabilizer to help control K[.O.]'s behaviors; to continue to monitor his overall mental status; to continue to monitor efficacy and side effects of medication; to encourage family therapy; and to work as part of a team with a psychologist as well as the staff of the school.
In a letter dated April 4, 2003, Dr. Pearl stated that some of K.O.'s "recent behaviors lend themselves to a fresh psychiatric evaluation". Id. Dr. Pearl felt it would be helpful for K.O. "[t]o be given weekly behavioral goals for him to meet in order to keep him focused on task and less likely to be distracted." Id. Dr. Pearl stated that it "would be important to K[.O.] to have a 'mentor' on the school campus who can review with him on a weekly basis the results of his academic, social, and emotional functioning." Id. Finally, Dr. Pearl opined that K.O. "needs more specific structure in his environment . . . in order to help him to achieve success." Id.
K.O.'s mother testified that in April 2003, after a disciplinary hearing regarding K.O.'s use of a knife to cut a hole in a mattress to hide cigarettes, K.O. was required to leave Storm King. T. 1362. Morgan testified that he spoke with plaintiffs about K.O. "needing perhaps more structure in terms of supervision that we could not offer." T. 1099. After a discussion with Morgan and a psychologist, plaintiffs decided to place K.O. at the Family Foundation School, a private boarding school with a "therapeutic component" in Hancock, New York. T. 1362, 1364, 988.
On April 8, 2003, plaintiff enrolled in the Family Foundation.*fn4 According to its brochure, The Family Foundation "is a fully accredited college preparatory [school for] teens at risk." P. Ex. 39. The Family Foundation is registered with the New York State Board of Regents and is accredited by the Middle States Association of Schools and Colleges. Id. The Family Foundation describes itself as a long term program for students aged twelve to nineteen with a minimum stay of "three semesters (18 months) and an average successful stay of 2 year[s]." T. 992, P. Ex. 39.
According to Renee Gotthardt, a certified social worker at the Family Foundation, the Family Foundation utilizes the twelve-step program used by Alcoholics Anonymous and that "no matter what the difficulty, we treat it with the twelve steps." T. 991. Gotthardt explained that this program involves "identifying a problem, admitting that there is a problem, ...