The opinion of the court was delivered by: Joanna Seybert, U.S.D.J.
Frazer & Feldman 1415 Kellum Place Garden City, NY 11530-1604 SEYBERT, District Judge:
Pending before the Court are a motion for summary judgment filed by Oceanside Union Free School District ("Oceanside" or "Defendant") seeking dismissal of every claim contained within the Complaint filed by P.C. and M.C. on behalf of K.C. ("Plaintiffs") (Docket Entry 25) and a cross motion for summary judgment filed by Plaintiffs (Docket Entry 26). Plaintiffs brought this action against Oceanside requesting a de novo review of the refusal of a New York State Review Officer ("SRO") to classify K.C. with an emotional disturbance pursuant to the Individuals with Disabilities Education Improvement Act ("IDEA"), 20 U.S.C. § 1400(d)(1)(A). The Complaint also includes a claim pursuant to Section 504 of the Rehabilitation Act of 1973, 20 U.S.C. §§ 701-796(1) ("Section 504"). For the reasons discussed below, Defendant's motion is GRANTED, Plaintiffs' motion DENIED.
Defendant Oceanside receives federal financial assistance and is therefore required by law to provide Free Appropriate Public Education ("FAPE") to disabled students residing in its district. Plaintiffs' Local Rule 56.1 Statement ("Pls. Stmt.") ¶ 88.
Beginning in the 7th grade (2004-2005), and continuing through the 8th grade, K.C., a pupil in the Oceanside School District, started receiving failing grades in his classes. Defendant's Local Rule 56.1 Statement ("Def. Stmt.") ¶ 6; Pls. Stmt. ¶ 6. Coinciding with his declining academic performance, in the 7th grade K.C. also began smoking marijuana in the amount of three grams per day (sometimes laced with cocaine), as well as abusing alcohol and prescription medications. Def. Stmt. ¶ 3; Pls. Stmt. ¶ 3. By the time he had reached the 8th grade, he was reportedly smoking one half to three-quarters of an ounce of marijuana daily. Def. Stmt. ¶ 4; Pls. Stmt. ¶ 4.
Concerned about K.C.'s alarming deterioration, his parents requested on December 9, 2004 that Oceanside conduct a psychological evaluation of their child. Def. Stmt. ¶ 7; Pls. Stmt. ¶ 7. Oceanside obliged, evaluating K.C.'s social and psychological history, observing him in class, and soliciting information regarding his academic performance from his teachers. Id. Among other things, this effort revealed that K.C.'s overall cognitive functioning was average; his processing skills were in the borderline range; his decoding, math, spelling, and listening comprehension skills were average; and his oral expression skills were in the superior range. Def. Stmt. ¶¶ 8-10; Pls. Stmt. ¶¶ 8-10. Armed with these results, and with the knowledge that K.C. was absent from and failing a number of classes, on March 1, 2005, the Committee on Special Education ("CSE") for the district determined that although K.C. was not eligible for special education, he would be afforded more liberal testing accommodations, pursuant to Section 504. Def. Stmt. ¶ 11; Pls. Stmt. ¶ 11. The Plaintiffs never challenged the March 1 meeting in any respect. Def. Stmt. ¶ 12; Pls. Stmt. ¶ 12.
On August 22, 2005, K.C.'s parents placed him in a drug treatment program at Glen Cove Community House ("GCCH"), where his admission diagnoses included abuse of alcohol, cannabis, opiates, and amphetamines; attention deficit hyperactivity disorder; and "parent-child relational problem." Def. Stmt. ¶ 13; Pls. Stmt. ¶13. During his stay at GCCH, K.C. underwent weekly individual therapy, bi-weekly family therapy, and daily group and therapeutic and psychiatric services; Oceanside covered K.C.'s education in this period, which comprised ten hours of instruction per week. Def. Stmt. ¶ 15; Pls. Stmt. ¶ 15. For all of his therapy, however, K.C. continually tested positive for marijuana use, refused to be tested on other occasions, and through his own research he learned how to foil the drug tests. Def. Stmt. ¶ 16; Pls. Stmt. ¶ 16. For this reason and others, GCCH's coordinator wrote to Defendant's Assistant Superintendent for Special Education and Pupil Services to explain why K.C. was being expelled from GCCH. Def. Stmt. ¶ 20; Pls. Stmt. ¶ 20. "K.C.", he wrote, "is presently smoking marijuana, disobeying house and program rules and taking off for hours at a time." Def. Stmt. ¶ 19.
On March 17, 2006, and in response to his ongoing drug use and increasingly violent behavior, K.C.'s parents unilaterally placed him in a private residential preparatory school sited in Hancock, New York, called Family Foundation, which has never been approved by the New York State Commissioner of Education as a school with which school districts may contract to instruct students with disabilities. Def. Stmt. ¶¶ 21, 23; Pls. Stmt. ¶¶ 21, 23. The guiding philosophy of Family Foundation is centered on a so-called Twelve-Step program which requires students to follow a twelve-step "process of self-examination in dealing with whatever issues he or she presents." Pls. Stmt ¶ 117. This procedure strongly resembles that of Alcoholics Anonymous and incorporates religious elements. Def. Stmt. ¶ 117.
About one month later, on April 28, 2006, Defendant convoked another CSE meeting among whose participants were the CSE chairperson, a school psychologist, a special education teacher, a standard education teacher, K.C.'s father, Plaintiffs' attorney, and the Defendant's attorney. Def. Stmt. ¶ 27; Pls. Stmt. ¶ 27. In spite of the extensive psychological testing already conducted by the Defendant, the CSE determined that more data were needed to consider K.C.'s special education eligibility and that it would be wise to evaluate K.C. at the Family Foundation, where he was relatively drug free. Def. Stmt. ¶ 28; Pls. Stmt. ¶ 28. Because both K.C. and Defendant employed different experts to conduct psychoeducational evaluations and because the report of K.C.'s expert (Dr. Petrosky) was not shared with Defendant until June 6, 2006, Defendant's expert, Dr. Hans, was prevented from conducting a complete psychological evaluation in order to avoid the "practice effect" associated with duplicative testing. Pls. Stmt. ¶ 32. Dr. Petrosky concluded that K.C. suffered from an emotional disturbance; Dr. Hans concluded that he did not suffer from one. Def. Stmt. ¶¶ 33, 35; Pls. Stmt. ¶¶ 33, 35. Dr. Petrosky further found that the supports and services offered to K.C. at Family Foundation appropriately addressed his learning, emotional, and behavioral needs. Pls. Stmt. ¶ 135.
More specifically, Dr. Hans, the presenting school psychologist, performed classroom observation at the Family Foundation and analyzed questionnaires presented to K.C.'s teachers. See IHO Findings of Fact and Decision ("IHO"), p. 18.
During his single-day observation (June 13, 2006), Dr. Hans did not mark any signs of emotional disturbance; rather, K.C.'s science teacher informed him that K.C. received good grades, was amicable, and always appeared in a fine mood. Id., p. 19. Although many Family Foundation students experience a "rough" adjustment period, this was not true for K.C., according to this teacher. Id. Then, Dr. Hans presented the "Differential Test of Conduct and Emotional Problems" ("DT/CEP") to Family Foundation's secretary who in turn provided it to the school's "family leader," Mr. McCarthy. Id., pp. 19-20. A scientific, research-based test, the DT/CEP comprises sixty true/false questions to objectively measure a student's behavior and produce an emotional disturbance scale. Id., p. 20. Based on Mr. McCarthy's response, Dr. Hans found no signs of an emotional or behavioral disorder. Nor did the doctor find such signs of disorder in the five DT/CEP responses he received from K.C.'s teachers. On the contrary, K.C. was given such encomiums as: "he has the highest grade in math class"; "he's one of my better students"; and "made a quick adjustment to his studies." Id. On the other hand, Dr. Hans never reviewed K.C.'s file from Oceanside. Id., p. 21.
To review and deliberate upon the new data, the CSE reconvened on June 16, 2006, with virtually the same participants who attended the April 28 meeting. A school psychologist named Dr. Nina Weisenreder assessed both Dr. Petrosky's and Dr. Hans' studies and the so-called BASC-2 reports compiled by K.C. and his Family Foundation instructors. On the issue of what factor was most important in the declination of K.C.'s grades and motivation, Dr. Weisenreder opined that this issue was "clouded by the fact that he was using a great deal of drugs during this time." Pls. Stmt. ¶
38. She also commented that "it seems quite likely the increase in drug use could lead to a decrease in academic performance." Id. She also found that Dr. Petrofsky's report--which recommended classifications of learning disability, emotional disturbance and ADHD--to be confused because, based on IQ testing, "the best estimate of [K.C.'s] cognitive ability is in the high average range." Tr*fn1 . 828. Finally, after discussing in detail the definition of emotional disability, the CSE decided that even if K.C. were properly diagnosed with a mood disorder recognized in the DSM-IV, classification was not warranted in view of the likelihood that his poor academic performance was more attributable to drug abuse than emotional illness. Def. Stmt. ¶ 39; Pls. Stmt. ¶ 39*fn2.
Furthermore, the CSE noted that, while he was abstinent from substance abuse, his classroom performance was commensurate with his cognitive ability, which was average to high. Pls. Stmt. ¶ 41.
Unsatisfied with the CSE's classification decision, Plaintiffs' counsel sought and received an impartial hearing seeking a reversal of the unfavorable result. On June 28, 2008, an impartial hearing officer ("IHO"), relying on more than 3500 pages of hearing transcript, rendered a 158-page decision denying classification. The IHO heard testimony that although a student could have dual diagnoses of substance abuse and emotional disturbance, it would be necessary to differentiate the two. IHO, p. 21. Among other things, he found in pertinent part that:
* The April and June 2006 CSE meetings were properly composed.
* K.C. was not entitled to be classified as a child with a disability.
* Even if he were classifiable, his placement at the Family Foundation was not appropriate because the staff lacked the requisite credentials and did not provide appropriate therapeutic services for a student with an emotional disability.
* At the time of the 2006 CSE, K.C. did not suffer from emotional issues or inappropriate behaviors.
* K.C. excelled academically when he was no longer abusing drugs and when he learned, subsequent to arriving at the Family Foundation, that his parents would not divorce.
* Dr. Han's testimony was credible; Dr. Petrosky's incredible.
Def. Stmt. ¶¶ 48-54; Pls. Stmt. ¶¶ 48-54.
Based on these findings and others, the IHO denied Plaintiffs' tuition reimbursement claims for the 2005-06, 2006-07, and 2007-08 years.
Plaintiffs then appealed the IHO decision to the SRO, who, on November 24, 2008, affirmed the IHO's determinations and dismissed in its entirety K.C.'s appeal. Pls. Stmt. ¶ 59. More specifically, the SRO found that:
* The data before the CSE were proper to render an eligibility determination (and, anyway, this objection was not properly presented).
* The April and June 2006 CSE meetings were properly composed.
* In view of K.C.'s strong academic aptitude, any decline in grades was attributable to drug abuse.
* K.C. did not have an inability to build or maintain satisfactory interpersonal relationships ...