ANTKOWIAK BY ANTKOWIAK v. Ambach

• Decision Date: 11 July 1986
• Docket Number: No. CIV-85-532C.,CIV-85-532C.
• Citation: 638 F. Supp. 1564
• Parties: Lara ANTKOWIAK, by her parent and natural guardian, John M. ANTKOWIAK, Plaintiff, v. Gordon AMBACH, as Commissioner of the New York State Education Department, Defendant.
• Court: U.S. District Court — Western District of New York

638 F. Supp. 1564

Lara ANTKOWIAK, by her parent and natural guardian, John M. ANTKOWIAK, Plaintiff, v. Gordon AMBACH, as Commissioner of the New York State Education Department, Defendant.

No. CIV-85-532C.

United States District Court, W.D. New York.

July 11, 1986.

Bouvier, O'Connor, Cegielski & Levine (Bruce A. Goldstein, of counsel), Buffalo, N.Y., for plaintiff.

Robert Abrams, Atty. Gen. (Peter B. Sullivan, Asst. Atty. Gen., of counsel), Buffalo, N.Y., for defendant.

CURTIN, Chief Judge.

The issue in this case is whether the State of New York is required, pursuant to the Education for the Handicapped Act, 20 U.S.C. § 1400, et seq. EHA, or the Rehabilitation Act, 29 U.S.C. § 794, to pay for the placement of a 13-year-old girl at a private institution in Pennsylvania. The child, Lara Antkowiak, suffers from anorexia nervosa and a variety of emotional problems. In May of 1985, Lara's father, John M. Antkowiak, unilaterally placed his daughter at the Hedges Treatment Center of the Devereux Foundation in Malvern, Pennsylvania Hedges. Defendant, the Commissioner of the State Education Department the Commissioner maintains that the State has no obligation under law to fund Lara's stay.

Currently under consideration is plaintiff's motion for full or partial summary judgment. Plaintiff maintains that defendant had no authority, under federal law, to review part or all of an impartial hearing officer's decision which was fully favorable to plaintiff. The Commissioner's position is that he has the right to reconsider all issues addressed by the hearing officer. Oral argument was heard on the motion on May 2, 1986.

The procedural history of this case is complex and reflects the court's efforts to obtain the views of State educational authorities within the confines of the EHA. To summarize, in January of 1985, the Buffalo City School District Committee on the Handicapped COH determined that Lara was not educationally handicapped and would not need any special education services. On February 27, 1985, the COH changed its recommendation, finding that Lara suffered from an educational handicap. It prepared an Individualized Educational Program IEP designed to meet her needs (see Item 3, Exh. D). She was found to require residential placement.

Applications were made to six residential programs in New York State, but all six refused to accept Lara. In March of 1985, the COH sought the Commissioner's approval to contract with Hedges. On April 17, 1985, the State Education Department notified the COH that Lara's application could not be approved because Hedges had been removed from the Commissioner's approved list of residential out-of-state schools.

Plaintiff then filed this lawsuit, seeking an injunction ordering the Commissioner to place Lara at Hedges. At this time, the COH was investigating three alternative placements. I found that plaintiff had failed to pursue the matter to decision before the COH and, if necessary, to obtain a due process hearing. Plaintiff was ordered to exhaust his administrative remedies (Decision and order of November 5, 1980). At the court's request, plaintiff submitted an affidavit detailing his financial status as well as affidavits from officials at Hedges. There was no immediate danger that Lara would be released from Hedges for failure to pay.

Plaintiff then sought a due process hearing through the local Board of Education pursuant to New York State Education Law § 4404(1).¹ The hearing officer agreed with the conclusions of the COH and ordered Lara's placement at Hedges (Appendix 1).

It should be noted that Lara's parents and the school district stipulated that Lara should be classified as emotionally disturbed. The hearing officer heard testimony from two psychologists and, based upon this and the stipulation, concluded that Lara fit the definition of emotionally disturbed and was in need of educational assistance. Lara was found to be unable to succeed in a regular classroom (Appendix 1, p. 1576). Her parents and the school district also stipulated that Lara needed residential placement at Hedges. However, as the hearing officer herself noted:

Ordinarily, a hearing officer does not have authority to order the placement of a child at a residential educational program that is not currently on the State Education Department's list of approved residential placements.

(Appendix 1, p. 1578.)

In early 1986, the State Education Department informed the school district that Lara's placement at Hedges could not be approved. The district was told that Hedges was currently approved only for children aged 14 or older, and the day school was not approved. Plaintiff renewed his motion for an injunction before this court.

The defendant again urged that plaintiff had failed to exhaust, since plaintiff had not sought a review by the Commissioner. The EHA provides that aggrieved parties to a hearing must be permitted to appeal; if there is no such appeal, the decision of a hearing officer is final. 20 U.S.C. § 1415(c) and (e)(1). In light of these provisions, I found that the plaintiff had exhausted his remedies as required by the EHA (Decision and order of February 3, 1986).

However, defendant was given an opportunity to explain his position regarding New York Education Law §§ 310² and 4404(2),³ which the Commissioner maintained would permit him to institute an appeal on his own motion, citing Sidney v. Ambach, No. 4322-85 (N.Y.S.Sup.Ct., Albany County, January 21, 1986). In Sidney K., the court discussed sections 310 and 4404(2), noting that it permits the Commissioner to take his own administrative appeal when he disagrees with the local school district. There, the court implied that, under state law, the Commissioner may review all issues. In view of this case, the Commissioner was given an opportunity to explain his position under section 310; his response was to issue an order to show cause why the decision of the hearing officer should not be annulled.

Although plaintiff had exhausted the procedures required under the EHA, I declined to take any further action pending the Commissioner's review (Decision and order of February 27, 1986). In reaching that decision, I noted that, pursuant to New York State law, the State Education Department must approve any out-of-state private placements. N.Y.Educ.Law §§ 4401(2)⁴ and 4402(2)(B)(2) and (3).⁵ I also noted that Lara's placement had been declined based on the limited approval given by the State of New York to the Hedges facility. For these reasons, some review by the Commissioner seemed appropriate. Furthermore, pursuant to 20 U.S.C. § 1413(a)(4)(B), the educational agency of a state receiving funds under the EHA has the duty to ensure that private facilities met state educational standards. At that time, I did not discuss which issues the Commissioner could review consistent with federal law.

Plaintiff takes the position that the Commissioner's decision, issued March 14, 1986, should be annulled. The Commissioner determined that Lara had no "educationally handicapping condition." He also found that there was "an absence of any meaningful description of the proposed educational program the student would receive while placed at the Hedges Treatment Center...." In light of these findings, the Commissioner ordered the Board of Education for the City of Buffalo to reconvene the COH for further proceedings in accordance with his decision (Appendix 2).

The court notes that plaintiff initially urged that no review by the Commissioner was proper. Plaintiff now, without retreating from that position, urges that even if some review was proper, the scope of review undertaken by the Commissioner is proscribed by the EHA. Defendant maintains that the Commissioner has the authority to undertake a complete review of all aspects of the case.

Plaintiff's key point is that the findings of the COH and the hearing officer are final as to whether Lara has an educational handicap and as to the Individualized Educational Plan developed by the COH to meet Lara's needs. Plaintiff urges that this finality is assured by federal law, citing 20 U.S.C. § 1415(e)(1) and 34 C.F.R. § 300.511. Of course, as plaintiff notes, in the event of a conflict between State and federal law, federal law is supreme.

The EHA contemplates a cooperative effort among parents, teachers, and local boards of education. Together, they have the task of developing an IEP which is designed to enable the handicapped child to obtain the "free appropriate public education" guaranteed by the EHA. 20 U.S.C. § 1401(19); Hendrick Hudson Board of Education v. Rowley, 458 U.S. 176 at 181-182, 102 S.Ct. 3034 at 3037-38, 73 L.Ed.2d 690 (1982). In New York State, the local Board of Education establishes a committee on the handicapped composed of at least a school psychologist, a teacher or administrator of special education, a school physician, and a parent. The committee must invite the appropriate professionals most familiar with the child's handicap to attend any meeting concerning that child's IEP. N.Y.Educ.Law § 4402(1)(b)(1).

Under the EHA, a state must provide parents with an opportunity to present complaints and, ultimately, an opportunity for a due process hearing. Parents who are dissatisfied with any aspect of their child's classification or placement must first resort to these procedures. 20 U.S.C. § 1415(b)(1) and (2). The hearing may be conducted by the state educational agency or by a local educational agency; the choice is left to the state. 20 U.S.C. § 1415(b)(2).⁶

The State of New York has chosen to offer parents a due process hearing at the local level. N.Y.Educ.Law § 4404(1). Pursuant to the EHA, the decision of the hearing officer is final unless an aggrieved party to the hearing chooses to appeal. 20 U.S.C. § 1415(c)⁷ and (e)(1).⁸

After oral argument was heard, the court telephoned counsel for each of the parties requesting any further information they could provide as to...