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M.H. and S.R., Individually, and On Behalf of H.H., A Minor v. the New York City Department of and Order Education

February 16, 2011


The opinion of the court was delivered by: Richard J. Holwell, District Judge


Plaintiffs commenced this action on February 9, 2010, appealing from a determination from a State Review Officer ("SRO") that defendant New York City Department of Education ("DOE") had offered a free and appropriate public education ("FAPE") and that therefore plaintiffs were not entitled to reimbursement of tuition for the private school in which H.H. was enrolled. Now before the Court are plaintiffs' and defendant's motions for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons that follow, defendant's motion for summary judgment is GRANTED, and plaintiffs' is DENIED.


I.H.H.'s Educational Background Prior To Requesting a FAPE H.H. is a 17-year-old high-school student who was enrolled at the Robert Louis Stevenson School ("RLS") at the time this action was filed. Her parents, M.H. and S.R. (the "Parents"), filed this action seeking reimbursement of H.H.'s tuition at RLS, in which H.H. enrolled after anxiety and emotional issues prompted her withdrawal from her previous school, Columbia Grammar and Prep ("Columbia").

H.H. attended Columbia, a private school, from kindergarten until January 2009, when she was in the tenth grade. (Parents Ex. F at 2.) H.H.'s history at Columbia had always been one of good grades, and especially from fifth until the middle of eighth grade, H.H. functioned well at home and in school. (See id. at 3.) In her last couple of years at Columbia, however, H.H. encountered more difficulty coping with school. When H.H. was in the eighth or ninth grade, she unexpectedly told her mother that although she knew she had a test that day, that she was not going to go to school. (See Parents Ex. F at 3; Transcript of Impartial Hearing ("Tr.") at 143.*fn1 ) Because this incident was unusual, H.H.'s mother allowed her to stay home that day, but required her to take the test the next day. (Parents Ex. F at 3; Tr. at 143.)

H.H. was sick "several times" "off and on" during the 2007-08 school year, when she was in ninth grade, but had one especially bad episode of stomach flu about halfway through the year that resulted in her missing school for three weeks. (Tr. at 143; see Parents Ex. F at 3.) Although H.H. could have returned to school after two weeks, she stayed out an extra week because "the anxiety for catching up [in school] was tremendous." (Tr. at 143; see Parents Ex. F at 3.) For the rest of that school year, although H.H. was able to make up the work that she had missed and still received good grades, she showed several signs of stress during that time. For example, H.H. would cry often, both in school and at home. (Parents Ex. F at 4.) H.H. would also, on occasion, scratch herself until her skin was raw. (Id.) In addition, although H.H. did make up her work, she refused to take two of her final exams at the end of the ninth-grade year.

(Tr. at 147; Parents Ex. F at 4.) Columbia, at that point, gave H.H. two incompletes and told her to take the finals after the summer. (Tr. at 147; Parents Ex. F at 4.)

H.H. had a "no stress summer," after which she returned to Columbia in the fall of 2008 in good spirits. (Tr. at 147; Parents Ex. F at 4.) Columbia granted H.H.'s request not to take the two finals she had missed so that she could "start fresh this year and not think about bad memories." (Parents Ex. F at 4.) H.H.'s happy return to school, however, was short-lived. Two or three weeks into the school year, H.H. became overwhelmed by school again, "felt like she was going to the park and crying in between classes," and cried every night at home. (Tr. at 145, 147; Parents Ex. F at 4.) On two occasions, H.H. stood in front of Columbia for two hours with her mother and refused to enter, saying she was afraid that she would lose control and embarrass herself in front of others. (Parents Ex. F at 5.) In November 2008, H.H. stopped going to school altogether. (Tr. at 147.) Columbia then decided to put H.H. on a medical leave of absence until January 2009, after which H.H. would be eligible to return. (Tr. at 148.) H.H. did not return to Columbia.

II.Psychiatric Evaluations and Entering RLS

During H.H.'s last few weeks at Columbia, her parents took her to Dr. Elizabeth Auricchio, a clinical psychologist and assistant clinical professor of medical psychology at Columbia University, for a psychoeducational evaluation. Dr. Auricchio evaluated H.H. on September 30 and October 1, 2008, conducting a number of tests. (Parents Ex. K at 1-3.) Dr. Auricchio's evaluation characterized H.H. as "a young lady with intellectual potential in the superior range." (Id. at 8.) But Dr. Auricchio also diagnosed H.H. with "a Learning Disorder Not Otherwise Specified." (Id.) Specifically, Dr. Auricchio noted that although H.H.'s "reading comprehension is good, [her] word attack skills are poor." (Id.) The evaluation also remarked that H.H. "exhibits an Anxiety Disorder Not Otherwise Specified." (Id.) Specifically, the evaluation mentioned that H.H. experienced "intense" anxieties on a daily basis "when she feels overwhelmed with the academic tasks facing her" and that these feelings are "intensified when she is faced with being 'judged' in a testing situation." (Id.) Dr. Auricchio's evaluation made several suggestions. First, it suggested extended time for lengthy classroom and standardized tests to allay H.H.'s anxieties. (Id. at 9.) Second, it suggested that H.H. work with a learning disabilities specialist in preparing for lengthy tests to give her coping strategies. (Id.) Third, it suggested that H.H. do her writing on a computer so that she could check spelling and punctuation; and finally, it suggested that H.H. continue in a "psychotherapeutic relationship in order to better understand and learn to deal with her anxiety and depression." (Id.)

On December 10, 2008, H.H. was evaluated by Dr. Aleta Angelosante, a clinical psychologist with the Child Study Center at New York University ("NYU"). (Parents Ex. P.)

Dr. Angelosante found that H.H. met diagnostic criteria for "Major Depressive Disorder, Single Episode, Moderate," for "Generalized Anxiety Disorder," and was "beginning to display traits associated with Cluster B personality disorders." (Id. at 5-6.) Dr. Angelosante recommended weekly individual dialectical behavior therapy ("DBT") sessions to address H.H.'s emotional issues, a weekly DBT skills group, joint DBT sessions with the Parents to work on family issues, and separate sessions with the Parents, if necessary, to discuss parenting strategies. (Id. at 7.)

Dr. Angelosante also gave H.H. a Global Assessment of Functioning score of 50, which indicates "between serious and moderate symptoms of dysfunction." (Id. at 6; see Tr. at 120.)

Also in December of 2008, H.H. began seeing Dr. Nami Stilman, a Board Certified Child and Adolescent and Adult Psychiatrist and Internist, as her private psychiatrist. (Tr. at 115-16.) Dr. Stilman referred H.H. to a day treatment program at Four Winds Hospital ("Four Winds") because H.H. "was basically completely non-functional at home." (Tr. at 116-17.) H.H. was admitted to Four Winds on February 5, 2009, where she was diagnosed with Bipolar II Disorder. (Parents Ex. M at 5.) Four Winds discharged H.H. on February 26, 2009, and her discharge plan included attendance at RLS, psychotherapy follow-up with Dr. Stilman, and DBT sessions twice a week at NYU. (Parents Ex. M at 9.) Dr. Stilman recommended that H.H. enroll at RLS upon discharge from Four Winds because "she was still fragile emotionally" and "if she were in the correct . . . nurturing and therapeutic and consistent environment, such as [RLS], that they might be able to keep her in school." (Tr. at 119.) H.H.'s mother signed a registration contract with RLS the day of H.H.'s discharge. (Parents Ex. I.)

III.Development of the Individualized Education Plan

By letter dated February 27, 2009, H.H.'s mother requested that the Committee on Special Education ("CSE") provide a FAPE for H.H. (Parents Ex. S.) The DOE then sent an Appointment Letter and Initial Notice of Referral, both dated March 18, 2009, indicating that the CSE had received a referral from H.H.'s mother and that the CSE needed to evaluate H.H. to asser her educational needs. (Parents Ex. H.) The DOE also sent a Consent for Initial Evaluation form dated March 18, 2009, which H.H.'s mother returned with a signature dated April 3, 2009. (DOE Ex. 2.)

On May 29, 2009, the CSE convened to formulate an Individualized Education Plan ("IEP") for H.H. (Parents Ex. C.) Present at the CSE conference were the Parents; Patricia Carrico, a school psychologist acting as the district representative; a general education teacher; a special education teacher; a parent member of the CSE; the parents' advocate from Susan Luger Associates; and Bud Henrichsen, the director of RLS. (Id. at 2.) The CSE reviewed the evaluations of Drs. Auricchio and Angelosante, a social history interview with H.H.'s mother, a vocational interview with H.H. and her mother, a classroom observation of H.H. at RLS, teacher reports from Columbia and RLS, and Henrichsen's "detailed" description of H.H. (Tr. at 13-15,32.)

The IEP classified H.H. as "Other Health Impaired." (Parents Ex. C at 1.) It recommended a plan of "general education with related services only." (Id.) Although the IEP itself did not specify what the "related services" would be, meeting minutes from the CSE conference indicate that the services were to be one-on-one counseling twice a week for forty minutes per session. (DOE Ex. 4 at 1.) The IEP characterized H.H.'s cognitive and academic achievement as average to high average, and therefore did not find that H.H. had any academic management needs. (Id. at 3, 7.) Instead, the IEP found that her "high average verbal and perceptual abilities are best served in a general eduation classroom with the support of counseling." (Id. at 8.) It did, however, identify H.H.'s social/emotional management needs as "help [H.H.] guard against her unrealistic perfectionism; emphasize her need to appreciate her very real cognitive and emotional giftedness." (Id. at 4.) In identifying these needs, the IEP noted that H.H. was "emerging from a long period of school withdrawal, depression and anxiety over ...

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