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W.A. v. Hendrick Hudson Central School District

United States District Court, S.D. New York

July 18, 2017

W.A., M.S., individually on behalf of W.E., Plaintiffs,

          William A. Walsh, Esq. Weitz & Luxenberg New York, NY Counsel for Plaintiffs

          Erica M. Fitzgerald, Esq. Littman Krooks LLP White Plains, NY Counsel for Plaintiffs

          Daniel Petigrow, Esq. David H. Strong, Esq. Thomas, Drohan, Waxman, Petigrow & Mayle, LLP Counsel for Defendant

          OPINION & ORDER


         Plaintiffs W.A. and M.S. (“Plaintiffs”) brought this suit on behalf of their son, W.E., alleging claims under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415(i)(2) et seq., Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 et seq., Article 89 of the New York Education Law, N.Y. Educ. Law § 4401 et seq., and the implementing regulations thereunder. (See Compl. (Dkt. No. 2).) The dispute arises out of the decisions of the Independent Hearing Officers (“IHO”) and the State Review Officers (“SRO”) who adjudicated Plaintiffs' administrative claims for relief arising out of Defendant's alleged failure to provide W.E. a free and appropriate public education (“FAPE”) during the 2010-2011, 2011-2012, and 2012-2013 school years.[1] On November 23, 2016, the Court issued an Opinion & Order adjudicating Plaintiffs' claims, deciding partly in favor of Plaintiffs and partly in favor of Defendant. (See Op. & Order (Dkt. No. 51).) As part of that Opinion & Order, the Court granted Defendant leave to amend its Answer to include a counterclaim that the SRO erred in holding that Defendant had not appealed the portion of the IHO's opinion that awarded compensation for counseling services for W.E. (See Id. at 102.) Defendant has now amended its Answer, and the Parties have cross-moved for summary judgment on Defendant's counterclaim. (See Dkt. Nos. 60, 70.) For the reasons to follow, Defendant's Motion is granted and Plaintiffs' Cross-Motion is denied.

         I. Background

         A. Factual Background

         The facts relevant to the pending Motions are undisputed and consist largely of the IHO and SRO decisions and the Parties' submissions in the administrative proceeding. Although the Parties submitted statements of undisputed material fact pursuant to Local Rule 56.1, (see Dkt. Nos. 62, 65), the Court finds it more efficient and useful to cite directly to the administrative documents that comprise the record in this case.

         On November 18, 2011, Plaintiffs filed a Due Process Complaint requesting an impartial hearing to determine whether W.E. was denied a FAPE during the 2010-2011 and 2011-2012 school years under the IDEA. (See IHO Decision 1.)[2] As relief, Plaintiffs requested reimbursement for W.E.'s enrollment at a private school and for “any further relief the impartial hearing officer finds just and necessary.” (See id.) On January 25, 2012, Plaintiffs filed an Amended Due Process Complaint. (See Att'y Aff'n Ex. A (“ADPC”) (Dkt. No. 68).) There, Plaintiffs laid out the factual allegations relating to their claim, detailing W.E.'s struggles in public school and his eventual placement by his parents in a private school. (See id.) Pertinent to this case, Plaintiffs explained the academic and social difficulties experienced by W.E. in the 2010-2011 school year, while he was still enrolled in public school in the eighth grade. (See Id. ¶¶ 16-32.) Plaintiffs described that as part of their efforts to combat W.E.'s continued struggles and as part of their preparation for the 2011-2012 school year, W.E. engaged in private counseling with Dr. Drew Robins and Dr. Daniel Williams. (See Id. ¶¶ 30, 40, 69, 78, 87, 90- 93.) In letters dated August 11, 2011 and August 19, 2011, respectively, Dr. Williams and Dr. Robins opined about W.E.'s prospect for success in the current curriculum and about W.E.'s educational needs. (See Id. ¶¶ 92-93.) These letters were generated after a number of counseling sessions and were provided to Defendant as evidence of W.E.'s need for intervention. (See Id. ¶ 90.)

         Eventually, Plaintiffs made the decision to place W.E. in a private therapeutic school. (See Id. ¶ 101.) The administrative process was initiated, at least in part, for the purpose of seeking reimbursement for W.E.'s tuition during the 2011-2012 school year (a subsequent administrative proceeding was initiated to recover tuition for the 2012-2013 school year). Plaintiffs made no explicit demand in the Amended Due Process Complaint for compensation for the counseling services provided by Dr. Robins and Dr. Williams, though they did request that Defendant “provide compensatory educational and counseling services for the 2010-2011 school year, to compensate for [Defendant's] failure to provide appropriate services for W.E.[] for an extended period of time.” (Id. at 26.) In their post-hearing briefing, Plaintiffs again requested “compensatory education” for Defendant's “failure to provide appropriate tutoring and counseling services for an extended period of time, ” (IHO Ex. XVIII, at 59-60), and, in a footnote, sought compensation for W.E.'s sessions with Dr. Robins and Dr. Williams, (id. at 59 n.43). Both of these requests were made under the heading, “POINT II: THE DISTRICT VIOLATED THE IDE[]A BY FAILING TO IDENTIFY [W.E.] AS A STUDENT WITH A DISBILITY DURING THE 2010-2011 SCHOOL YEAR.” (Id. at 53.)

         After a hearing, the IHO rendered a “Second Corrected Findings of Fact and Decision” on May 30, 2012, with a corrected version issued on June 21, 2012. (See IHO Decision 38.) The IHO determined that Defendant had breached its child find obligations, that is, its obligation to identify students who may be in need of special education, and thereby failed to provide W.E. a FAPE for at least a portion of the 2010-2011 school year. (See Id. at 21.) More specifically, the IHO found that by January 2011, the information available to Defendant indicated that W.E. was in need of more aggressive intervention and more appropriate placement. (See Id. at 24.) The IHO then considered what remedy was appropriate, saying, “Having found that the District deprived the student of a FAPE for a portion of the 2010-2011 school year, a determination must be made as to whether there is an appropriate remedy.” (Id.) In the section entitled “Parents' Request for Relief for the 2010-2011 School Year, ” the IHO held that Defendant would reimburse Plaintiffs for the cost of the counseling sessions with Dr. Robins and Dr. Williams, and for 15 hours of prospective counseling, but held that Plaintiffs were not entitled to compensation for the 200 hours of home instruction to which Plaintiffs claim W.E. was entitled. (Id. at 24-25.)

         With respect to the 2011-2012 school year, the IHO again found that Defendant had not provided W.E. a FAPE. (See Id. at 26.) The IHO next considered whether Plaintiffs had met their burden in establishing that they were entitled to tuition reimbursement for W.E.'s placement in a private school during the 2011-2012 school year. (See Id. at 29.) The IHO concluded that they had not and therefore declined to award tuition reimbursement for the private placement. (See Id. at 36.) There was no other discussion of remedies in the section pertaining to the 2011-2012 school year. Finally, the IHO determined that the evidence did not support Plaintiffs' claim that W.E.'s rights under the Rehabilitation Act had been violated. (See Id. at 37.)

         At the end of its decision, the IHO offered the following conclusion:

         For all of the above reasons, it is hereby ordered that:

1. The Hendrick Hudson School District denied the student a FAPE for a portion of the 2010-2011 school year;
2. The parents are entitled to reimbursement for Dr. Williams's psychiatric sessions with the student from May 18, 2011 up until the date of his report, August 11, 2011, upon presentation of proof of those services and of payment;
3. The parents are entitled to reimbursement for the five sessions documented in Dr. Robins [sic] letter dated August 19, 2011, upon presentation of proof of those services and of payment;
4. The student is entitled to fifteen hours of counseling at District expense;
5. The Hendrick Hudson School District denied the student a FAPE for the 2011-2012 school year;
6. The parents' request for tuition reimbursement is denied; and
7. The parents' Section 504 claim for the 2010-2011 school year is dismissed.

(Id. at 37-38.)

         Plaintiffs thereafter appealed the IHO's decision to the SRO. (See Att'y Aff'n Ex. B.) Specifically, Plaintiffs appealed the denial of compensation for the 200 hours of home instruction, as well as the denial of tuition reimbursement for the 2011-2012 school year. (See id. ¶ 4.) Defendant filed a Verified Answer and Cross-Appeal. (See Att'y Decl. Ex. 1 (Dkt. No. 61).) Defendant generally denied the allegations made in Plaintiffs' appeal. (See id.) Defendant also specifically pointed out, in one of its responses to the allegations made by Plaintiffs,

that Petitioners did not seek in their Due Process Complaint Notice dated November 18, 2011 or their Amended Due Process Complaint Notice dated January 25, 2012, reimbursement for psychiatric sessions with Dr. Williams or sessions with Dr. Robins, or offered [sic] any oral testimony or documentary ...

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