Antkowiak By Antkowiak v. Ambach, CIV-85-532C

• Decision Date: 18 February 1987
• Docket Number: No. CIV-85-532C,CIV-85-532C
• Citation: 653 F. Supp. 1405
• Parties: Lara ANTKOWIAK, by her parent and natural guardian, John ANTKOWIAK, Plaintiff, v. Gordon M. AMBACH, as Commissioner of the New York Education Department, Defendant.
• Court: U.S. District Court — Western District of New York

653 F. Supp. 1405

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

No. CIV-85-532C

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

February 18, 1987.

Bouvier, O'Connor, Cegielski & Levine, Neighborhood Legal Services, State University of New York at Buffalo, Legal Assistance Program (Bruce A. Goldstein, James R. Sheldon, and Ronald M. Hager, of counsel), for plaintiff.

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

CURTIN, Chief Judge.

Plaintiff Lara Antkowiak is a 14-year-old girl with profound emotional disturbance and a severe eating disorder, anorexia nervosa. Lara's illness first surfaced when she was only ten years old, and since that time, she has been hospitalized on several occasions, once for nearly one year. The issue in this case is whether the New York State Education Department SED must pay for Lara's placement at a private residential and educational facility in Pennsylvania.

Plaintiff John Antkowiak, on behalf of his daughter, seeks relief under the Education for the Handicapped Act EHA, 20 U.S.C. § 1401, et seq.; the Rehabilitation Act, 29 U.S.C. § 794; and the Fourteenth Amendment of the United States Constitution by way of 42 U.S.C. § 1983. A nonjury trial was held in October of 1986, and summations were heard on December 19, 1986. For the reasons below, I find that plaintiff is entitled, pursuant to the EHA, to have his daughter placed at the Hedges Treatment Center at defendant's expense.

Many of the matters discussed in this decision have been fully addressed in prior decisions. See Orders of November 5, 1985 (Item 31), 621 F.Supp. 975; February 3, 1986 (Item 45); February 27, 1986 (Item 52); and July 11, 1986 (Item 63), 638 F.Supp. 1564.

In May of 1976, when Lara was three years old, her mother, Kathleen, became seriously ill with a connective tissue disorder. She became increasingly disabled and was unable to care for Lara. Kathleen Antkowiak died in June of 1977. Lara's father, John Antkowiak, M.D., remarried in 1978. At trial, he testified that Lara's adjustment to her mother's death was apparently quite good. She did not show any indication of emotional difficulties, and was progressing very well, both academically and socially. In fact, Lara has been described by teachers and psychologists as a very intelligent child, and has scored well on intelligence tests.

In the spring of 1983, however, when Lara was 10 years old, she became anxious and upset about her schoolwork. Dr. Antkowiak testified that at that time, Lara became increasingly withdrawn from her family and friends and began spending all her play time doing homework. He testified that Lara would review her assignments five or six times. In June of 1983, Lara's doctor noticed that she had not gained any weight since her last physical examination in the summer of 1982. Despite encouragement from her family, Lara would not eat and began to exercise compulsively. From October through December of 1983, Lara was hospitalized at Strong Memorial Hospital in Rochester, New York. During that time, the elementary school Lara attended sent packets of school work to the hospital; Lara completed only some of these.

Dr. Antkowiak testified that Lara returned to school for a short time in January of 1984, but went downhill and was readmitted to the hospital in February. She remained there until late March or early April. Her attention to her schoolwork declined during this second hospitalization.

In the early summer of 1984, Lara was hospitalized for a third time. She was admitted to the psychiatric unit at Strong Memorial. Throughout the fall of 1984, Lara derived no benefit from any educational program. According to Dr. Antkowiak, she deteriorated even further in the psychiatric unit and was transferred to a medical ward at Strong Memorial, where she remained until May 15, 1985.

From January through May of 1985, Lara was tutored by Ann Quivey, a special education teacher at Strong Memorial Hospital. Lara worked with Ms. Quivey on a one-to-one basis in a small classroom in the hospital. Ms. Quivey testified that Lara was initially cooperative and responsive to questions. They would usually meet for one hour each day. As time went by, however, Lara regressed. Ms. Quivey testified that as of mid-April, Lara regularly refused to come to class. Ms. Quivey would find Lara curled into a fetal position in her bed with the lights out. When Ms. Quivey did manage to persuade Lara to come to class, she would stare out the window and not respond to questions, occasionally becoming hostile.

Frank Alabiso, a licensed psychologist who has worked with children and their families for 17 years, examined Lara at the Antkowiaks' request in April of 1985. He testified that Lara was emotionally guarded, socially withdrawn, and extremely obsessive:

All in all, I found her to be one of the most disturbed children I had seen in my practice.... I thought she was completely incapacitated in terms of benefiting in any standard educational program.... She really needed an educational program in a residential milieu.... It needed to be a program that would incorporate both the child's educational needs and all the emotional, psychological, social and residential services in order to allow her to be able, or any child to be able, to function educationally.

Item 68, Vol. 2, pp. 8-9.

Dr. Antkowiak testified that throughout Lara's last hospitalization at Strong Memorial, he was advised to look for a program which could tend to Lara's emotional, educational, and social needs, in addition to her physical problems. He spoke with various facilities throughout the country during the late summer and fall of 1984; none would accept Lara. At that time, Dr. Antkowiak also contacted the Devereaux Foundation in Eastern Pennsylvania and sent the admissions officer information about Lara. In December of 1984, Dr. Antkowiak contacted the Buffalo School District at the suggestion of the staff at Strong Memorial.

Pursuant to the federal Education for the Handicapped Act EHA, 20 U.S.C. § 1401, et seq., a state, such as New York, which receives financial assistance from the federal government pursuant to the Act must comply with certain requirements. The state must develop a plan to ensure that all children in need of special education and related services are identified, evaluated, and given a "free appropriate public education." To receive a "free appropriate public education," a handicapped child must have access to a program which is sufficient to confer some educational benefit to the child. Hendrick Hudson Board of Education v. Rowley, 458 U.S. 176, 200, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982).

Under the EHA, it is the responsibility of the local educational agency to determine whether a child is handicapped and, if so, to develop a special program (Individualized Educational Program or IEP)¹ to meet that child's needs. 20 U.S.C. § 1401(a)(19), 1412(4), and 1414(a)(5). New York State has chosen to place the responsibility for determining whether a child is handicapped and designing an IEP with the Committee on the Handicapped COH of each local school district in the State. NY Educ.Law § 4402.1; Riley v. Ambach, 668 F.2d 635, 637 (2d Cir.1981). (See Decision and Order of February 3, 1986 (Item 45).)

The Buffalo School District's Committee on the Handicapped met on January 16, 1985, and determined, based on the limited information before it, that Lara was not handicapped so as to need special education. After the meeting in January, the COH obtained more information on Lara's condition.

Dr. Lew Conti, a school psychologist and member of the Buffalo COH, testified that he attended a meeting at Strong Memorial Hospital. After speaking with Ms. Quivey and others, Dr. Conti concluded that Lara's educational program was suffering immeasurably (Item 68, Vol. 1, p. 107). In light of the new information received, the COH met again on February 27, 1985. The COH concluded that Lara could not function in a regular classroom, and recommended that she be placed in an educational residential facility.

Following this recommendation, application was made to several residential educational programs in New York State. Rosalie Wiggle, coordinator of the Buffalo COH, testified that she called nine schools located within the State, and then sent applications to six of those schools which sounded as if they might be appropriate for Lara. All six rejected Lara's application.² At that point, Ms. Wiggle sent an application to the Devereaux Foundation, which provides, among other things, an educational residential placement for emotionally disturbed children. Lara was accepted (Item 68, Vol. 1, pp. 68-70).

Since the Devereaux Foundation is an out-of-state private school, the COH could not, under New York law, effectuate Lara's placement without the approval of the Commissioner of the New York State Education Department. NY Educ.Law § 4401(2) and 4402(2)(b)(2) and (3). (See Decision of February 27, 1986 (Item 52).) Ms. Wiggle testified that she sent the acceptance letter from Devereaux, along with the six letters of rejection from New York State schools, to the State Education Department SED, and requested that Devereaux be approved as a placement for Lara.

According to Ms. Wiggle, in the ordinary course, the State Education Department returns a copy of the application and acceptance letter from a school with a stamp of approval from the State Educational Department's regional associate. She testified that in her experience, there had never been a rejection by the regional associate. Ms. Wiggle has been the coordinator for the Buffalo COH for seven years. In Lara's case, however, the regional associate called Ms. Wiggle on April 16, 1985, to advise her that Lara's placement at...