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W.A. v. Hendrick Hudson Central School District

United States Court of Appeals, Second Circuit

June 14, 2019

W.A., M.S., Individually and on behalf of W.E., Plaintiffs-Counter-Defendants-Appellees-Cross-Appellants,
v.
Hendrick Hudson Central School District, Defendant-Counter-Claimant-Appellant-Cross-Appellee.[†]

          Argued: February 21, 2019

          Appeal from the United States District Court for the Southern District of New York (Karas, J.) No. 14-3067

         Appeal and cross-appeal from the September 13, 2017 judgment of the United States District Court for the Southern District of New York (Karas, J.) incorporating its November 23, 2016 opinion and order granting in part and denying in part the parties' cross-motions for summary judgment and its July 18, 2017 opinion and order granting Defendant's motion for summary judgment and denying Plaintiffs' cross-motion. We hold that the district court properly deferred to the decision of the New York State Review Officer ("SRO"), which concluded that student W.E. was not denied a free and appropriate public education for the eighth-grade school year and that Northwood School ("Northwood") was not an appropriate unilateral private school placement for the ninth-grade school year, and thus affirm the district court's November 23, 2016 opinion and order to the extent it granted summary judgment to Defendant. Because the district court failed to accord appropriate deference to the SRO's conclusion that Northwood did not provide W.E. specially designed instruction so as to constitute an appropriate private school placement for the tenth-grade school year, we reverse the portion of the district court's November 23, 2016 opinion and order granting summary judgment to Plaintiffs and vacate the award of tuition reimbursement to Plaintiffs for that school year. We also affirm the district court's July 18, 2017 opinion and order granting Defendant's motion for summary judgment and vacating the award of compensatory education for the eighth-grade school year.

         Affirmed in part, Reversed and Vacated in part.

          Daniel Petigrow, (David H. Strong, on the brief), Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, Hopewell Junction, NY, for Defendant-Counter-Claimant-Appellant-Cross- Appellee.

          William A. Walsh, New York, NY (Erica M. Fitzgerald, Littman Krooks LLP, White Plains, NY, on the brief), for Plaintiffs-Counter- Defendants-Appellees-Cross-Appellants.

          Catherine Merino Reisman, Ellen Saideman, Selene Almazan-Altobelli, Towson, MD, for Amicus Curiae Council of Parent Attorneys and Advocates, Inc.

          Before: Kearse, Jacobs, Hall, Circuit Judges.

          Hall, Circuit Judge.

         In the United States District Court for the Southern District of New York (Karas, J.), W.A. and M.S. ("the Parents"), individually and on behalf of their son, W.E., commenced two actions against the Hendrick Hudson Central School District ("the District") under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. W.E. attended public school in the District and began suffering from conventional and abdominal migraines during middle school, which caused him to miss over 100 days of eighth grade. The District eventually classified W.E. as suffering from a disability under the IDEA's "other health impairment" designation, but the Parents were not satisfied with the individualized education program the District prepared for W.E.'s upcoming ninth-grade school year. The Parents removed W.E. from the District and enrolled him at Northwood School ("Northwood"), a private school in the Adirondacks, for his ninth- and tenth-grade school years. While at Northwood W.E.'s absences from school diminished significantly, and he experienced notable improvement in his social and academic engagement.

         Following administrative hearings before a New York State Impartial Hearing Officer ("IHO") and cross-appeals before a State Review Officer ("SRO"), the Parents brought these two federal court complaints pursuant to Section 1415 of the IDEA, 20 U.S.C. § 1415(i)(2)(A). In Case One, the Parents alleged that the District violated W.E.'s right to a free and appropriate public education ("FAPE") for his eighth- and ninth-grade school years (2010-11 and 2011-12) and challenged the SRO's ruling of January 31, 2014, which held that Northwood was not an appropriate placement for ninth grade. In Case Two, the Parents challenged the March 18, 2014 decision of the SRO and asserted that the District violated W.E.'s right to a FAPE for his tenth-grade school year (2012-13); they again sought tuition reimbursement for their unilateral placement of W.E. at Northwood for tenth grade. The two actions were consolidated by the district court.

         On November 26, 2016, the district court affirmed the SRO's ruling in Case One in all respects but declined to defer to the SRO in Case Two, holding instead that Northwood was an appropriate placement during tenth grade and ordering that the District reimburse the Parents for W.E.'s tuition at Northwood for that year. See W.A. v. Hendrick Hudson Cent. Sch. Dist., 219 F.Supp.3d 421 (S.D.N.Y. 2016). It also granted the District's motion to amend to add a counterclaim regarding costs awarded by the IHO in Case One. Id. at 484. On July 18, 2017, the district court granted summary judgment to the District on the counterclaim, vacating the award of compensatory education in the form of counseling reimbursement for the eighth-grade year based on its affirmance of the SRO's ruling that W.E. was not denied a FAPE for that academic year.[1] See W.A. v. Hendrick Hudson Cent. Sch. Dist., No. 14-CV-3067 (KMK), 2017 WL 3066888 (S.D.N.Y. July 18, 2017).

         The District appeals the portion of the district court's November 23, 2016 decision and order awarding summary judgment to the Parents and ordering reimbursement of W.E.'s tuition for his private education at Northwood during W.E.'s tenth-grade year. The Parents cross-appeal the portion of the district court's November 23, 2016 opinion and order awarding summary judgment to the District and holding that the District did not violate its "Child Find" obligation under the IDEA[2] and thus did not deny W.E. a FAPE for the eighth-grade year in accord with its statutory obligations, and further holding that Northwood was not an appropriate placement for W.E.'s ninth-grade school year so as to entitle the Parents to tuition reimbursement for W.E.'s private education during ninth grade. The Parents also cross-appeal the district court's July 18, 2017 opinion and order awarding summary judgment to the District and vacating the award of compensatory education for the eighth-grade school year.

         Because we hold that the district court properly deferred to the SRO's conclusions regarding the timeframe during which the District's Child Find obligation was triggered and its ruling that Northwood failed to provide meaningful counseling or specially designed instruction for W.E.'s ninth-grade academic year, we affirm the district court's November 23, 2016 opinion and order as to Case One. However, because the district court did not defer to the similarly well-reasoned opinion of the SRO which held that Northwood failed to provide specially designed instruction for the tenth-grade academic year in spite of W.E.'s progress in the private school placement, we reverse the district court's November 23, 2016 opinion and order with respect to Case Two and vacate the award of tuition reimbursement for the tenth-grade academic year. We affirm the district court's July 18, 2017 opinion and order granting the District's motion for summary judgment and vacating the award of compensatory education for the eighth-grade school year.

         BACKGROUND

         I. Statutory Framework

         This case arises under the IDEA, 20 U.S.C. § 1400 et seq. The IDEA was designed, inter alia, to protect the rights of children with disabilities as well as the rights of their parents and "to ensure that all children with disabilities have available to them a free appropriate public education ["FAPE"] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living." Id. § 1400(d)(1)(A). The IDEA enforces a "Child Find" obligation which "requires each State to have policies and procedures to ensure that all children with disabilities are identified and evaluated for special education and related services." Mr. P v. W. Hartford Bd. of Educ., 885 F.3d 735, 749 (2d Cir.), cert. denied, 139 S.Ct. 322 (2018). A school district must conduct an evaluation of a child suspected of suffering a disability "within a reasonable time" after it receives "notice of a likely disability." Id. at 750.

         The IDEA also requires that school districts create an individualized education program ("IEP") for each qualifying child. See R.E. v. N.Y.C. Dep't of Educ., 694 F.3d 167, 175 (2d Cir. 2012) (citing 20 U.S.C. § 1414(d)). "The IEP is the centerpiece of the IDEA's education delivery system for disabled children" and serves as the means by which the State delivers a disabled child's FAPE. Mr. P, 885 F.3d at 741 (internal quotation marks and brackets omitted). It constitutes "a written statement that sets out the child's present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives." R.E., 694 F.3d at 175 (quoting D.D. ex rel. V.D. v. N.Y.C. Bd. of Educ., 465 F.3d 503, 507-08 (2d Cir. 2006)). In New York, local Committees on Special Education ("CSEs") are responsible for developing IEPs and are tasked with identifying an educational program tailored to the student's particular needs and achievement levels. See id.

         Parents who believe a child has been denied a FAPE may enroll the child in a private school at their own financial risk and seek retroactive reimbursement from the school district for the cost of the private school. A.C. ex rel. M.C. v. Bd. of Educ. of The Chappaqua Cent. Sch. Dist., 553 F.3d 165, 171 (2d Cir. 2009). In New York, such claims are first adjudicated before an IHO and may then be appealed to the SRO. See R.E., 694 F.3d at 175 (citing N.Y. Educ. Law §§ 4404(1)-(2)). The IDEA provides for judicial review of the SRO's decision by a federal district court. Id. (citing 20 U.S.C. § 1415(i)(2)(A)).

         II. Factual Background

         W.E. attended public school in the District through the eighth grade. He performed well and was engaged in several extracurricular programs until the sixth grade, when he developed severe internal pain that led to an emergency appendectomy and caused him to miss at least 26 days of school. W.E. was diagnosed with abdominal migraines which persisted throughout seventh grade and which were increasingly compounded by conventional migraines, causing him to miss at least as many school days as he had the prior year. His headaches continued to worsen through the spring of seventh grade when W.E.'s mother, M.S., referred W.E. to the District's Section 504 Committee [3] and requested tutoring, which the District approved.

         As part of the Section 504 process, Dr. Richard Brodsky, the school psychologist, performed a psycho-educational evaluation of W.E. That evaluation yielded above-average scores on a cognitive test measuring W.E.'s "General Intellectual Ability." W.A., 219 F.Supp.3d at 430. Except for math fluency, in which W.E. fell into the "low average" range, the evaluation also yielded average to advanced scores on a number of subtests targeted to measure academic achievement. Id. Dr. Brodsky also administered the Behavior Assessment System for Children-Second Edition ("BASC-2") to W.E. and to two of his teachers on W.E.'s behalf. That assessment generated "at-risk" scores in the areas designated "Relations to Parents" and "Attitudes Towards School." Id. One of W.E.'s teachers also produced a "clinically significant score" reflecting "a high level of maladjustment" as a result of W.E.'s somatization. Id. In June 2010, the District's Section 504 Committee met and found W.E. eligible for an accommodation based upon his migraine disability. The accommodation consisted of extra time to complete assignments, nursing services as needed, and access to class notes and home tutoring.

         W.E.'s eighth-grade year was increasingly fraught, with his migraines causing him to miss a total of more than 100 school days. Although he did well in some classes, he struggled in others, missed some state exams, and became more socially isolated. W.E. received some of the tutoring to which he was entitled under his Section 504 plan, but the Parents were not satisfied with the assigned tutor, and efforts to find a replacement interrupted the tutoring before it was recommenced. In December 2010, M.S. notified the District that she observed her son to be in "crisis" and requested certain interventions; she also contacted Dr. Brodsky, who recommended private relaxation counseling for W.E. Id. at 433. Per M.S.'s request, the District scheduled a meeting for January 5, 2011, to review W.E.'s Section 504 plan, but M.S. later emailed Caroline Almeida, the District's Assistant Director of Pupil Personnel, to suggest canceling the meeting in light of W.E.'s progress over the winter break and M.S.'s understanding that he "had all the program modifications in place." Id. at 434 (brackets omitted).

         In mid-January 2011, the Parents began the process of looking into a private school for W.E.'s upcoming ninth-grade year. M.S. and W.E. visited Northwood, a boarding school in the Adirondacks, in late February 2011. The school is a self- described small college preparatory school that strives to incorporate the values of integrity, compassion, responsibility, courage, and respect into its pedagogy and operations. During this initial visit W.E. grabbed M.S.'s coat and asked, "Can I go here?" Id. at 438. W.E. was admitted, and the Parents paid a deposit and signed an enrollment contract in March 2011. Later that spring M.S. and W.E. visited Northwood again with W.A. and confirmed W.E.'s intent to attend in the fall.

         Meanwhile, throughout the spring of W.E.'s eighth-grade year, discussions with the District continued. By April 2011 the Parents had referred W.E. to the local CSE to determine his eligibility for special education services under the IDEA's "other health impairment" ("OHI") classification; they also requested an emergency Section 504 meeting, which Ms. Almeida promptly scheduled. At that meeting of April 15, 2011, the Section 504 Committee recommended counseling. Dr. Brodsky suggested it should take place outdoors. The Section 504 Committee also recommended that a psychiatric evaluation be conducted in preparation for the upcoming CSE meeting. An evaluation was scheduled with a psychiatrist named Dr. Hahn. Dr. Hahn prepared a report based on his consultation with M.S. but was not able to evaluate W.E. due to his migraines and/or anxiety. His report recommended a holistic approach to helping W.E. learn how to cope with his stress, including bio-feedback and relaxation methods, mindfulness training, play therapy, and access to an outdoor adventure-based program.

         The CSE meeting was held on May 25, 2011, without a psychiatric evaluation. The Parents took issue with a number of aspects of that meeting, including the District's failure to include a parent on the CSE. In advance of a follow-up CSE meeting on August 26, 2011, the Parents submitted letters from three different clinicians who recommended a smaller school environment for W.E. or a non-mainstream placement. The CSE ultimately classified W.E. as a student with a disability under the OHI designation. A draft IEP recommended twice-weekly individual counseling, program accommodations consisting of access to class notes, nursing services, and extra time for completing assignments, and classes with a student-to-staff ratio of 8:1:1.

         Kathleen Coughlin, the District's director of Pupil Personnel Services, later testified that she discussed two programs at the August 2011 CSE meeting that might meet W.E.'s needs for his ninth-grade year: the BOCES (Board of Cooperative Educational Services) program in Southern Westchester and the one in Putnam Northern Westchester. According to Ms. Coughlin, she explained to W.E.'s Parents that neither option could be recommended as a final placement until the referral process was complete but that the CSE could offer interim home instruction pending completion of an expedited referral process. The Parents ultimately concluded that BOCES was not an appropriate placement for W.E. They formally withdrew W.E. from the District by letter dated August 30, 2011.[4]

         W.E. began private school at Northwood at the start of his ninth-grade school year. At Northwood the student-teacher ratio in W.E.'s classes was below 8:1 and W.E. was assigned a nurse as a faculty advisor; another nurse lived on his dormitory floor. Some classes were structured around a large oval table so as to require participation from all students, and the school incorporated organized study periods as well as outdoor activities into its educational structure. Northwood ensured that W.E.'s teachers were aware of his accommodation plan, which required that W.E. receive additional time for in-class assignments, preferential seating, graphic organizers or guided notes to facilitate verbal lectures, and regular sessions with the school counselor. W.E. earned passing grades in all of his ninth-grade classes and, more notably, missed only nine days of school due to his migraines. He also grew more socially adjusted, received positive feedback from teachers, and tapered off his mood-stabilizing medications. Dr. Williams later testified that Northwood "appeared to be highly appropriate for W.E. as reflected in his dramatic improvement in headache frequency that had persisted for the first time in previous years beyond the summer well into the fall term and its conclusion." Id. at 442 (brackets omitted). Some of W.E.'s teachers, however, indicated that he struggled with organization skills, preparing for class, and handing in assignments on time and that his grades were below his potential. One teacher cited W.E.'s poor behavior in an incident in which she needed to remove him from class due to rude remarks he made to another student. In February 2012, Northwood accepted W.E.'s re-enrollment for his tenth-grade year.

         In April 2012, the District began formulating a program recommendation for W.E.'s tenth-grade year despite W.E.'s attendance in private school. Reports provided by W.E.'s teachers at Northwood noted his lack of organization, missing class assignments, and stress-triggered migraines alongside his strong intellectual abilities. A February 2012 BASC-2 test showed significant improvement in W.E.'s attitude toward school, but the BASC-2 completed by one of W.E.'s teachers at Northwood rated W.E. "as clinically significant for somatization and at risk for social skills." Id. at 443. The CSE held W.E.'s annual review meeting on June 14, 2012. Dr. Williams sent a letter to the CSE in advance of that meeting describing W.E.'s "remarkable" progress, which he attributed in part to his placement at Northwood; Dr. Williams recommended that W.E. not undergo any change of placement for the upcoming year. Id. At the meeting the Parents also shared their view that W.E. was experiencing fewer migraines, earning average grades, and engaging in various outdoor activities at Northwood. The IEP that was finalized for W.E. recommended a student-teacher ratio of 8:1:1 and participation in Southern Westchester BOCES at Irvington High School's TSP (Therapeutic Support-Fragile Program). The Parents expressed concerns with this prospective placement to District officials during a subsequent CSE meeting in August 2012. They rejected the IEP by letter dated September 20, 2012.

         W.E.'s accommodation plan for his tenth-grade year at Northwood included the four previous accommodations from his ninth-grade year as well as three new accommodations: use of an iPad in class, a supervised study hall, and access to a school nurse. In addition to continuing what was essentially informal counseling from the prior year with Donald Mellor, an English teacher and Northwood counselor, Dr. Williams advocated for "a more systematic psychotherapy program," and in the spring of his tenth-grade year W.E. began meeting weekly with a private social worker. Id. at 446-47. Reports from W.E.'s teachers throughout his tenth-grade year were again inconsistent, containing a mixture of praise for his academic achievement and criticism of his lack of organization, uneven performance, intermittent lack of engagement, and occasionally inappropriate behavior. W.E. was also able to play soccer and participate in an outdoor program in Yellowstone and seemed to grow in his social comfort and confidence, though he experienced an especially severe migraine in May 2013. Several clinicians later testified that Northwood was appropriate for W.E.'s emotional and mental health needs.

         III. Administrative Proceedings

         A. Case One: The Eighth- and ...


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