W.A. v. Hendrick Hudson Cent. Sch. Dist., Case Nos. 14–CV–3067

• Decision Date: 23 November 2016
• Docket Number: 14–CV–4285 (KMK),Case Nos. 14–CV–3067
• Citation: 219 F.Supp.3d 421
• Parties: W.A. and M.S., individually and on behalf of W.E., Plaintiffs, v. HENDRICK HUDSON CENTRAL SCHOOL DISTRICT, Defendant.
• Court: U.S. District Court — Southern District of New York

219 F.Supp.3d 421

W.A. and M.S., individually and on behalf of W.E., Plaintiffs,
v.
HENDRICK HUDSON CENTRAL SCHOOL DISTRICT, Defendant.

Case Nos. 14–CV–3067
14–CV–4285 (KMK)

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

Signed November 23, 2016

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

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

Daniel Petigrow, Esq., David Hannum Strong, Esq., Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, Hopewell Junction, NY, Counsel for Defendant.

OPINION & ORDER

KENNETH M. KARAS, District Judge:

Plaintiffs W.A. and M.S. (collectively, "Plaintiffs" or the "Parents") bring this action individually and on behalf of their son W.E. pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., seeking to set aside two decisions of the New York State Review Officer ("SRO") which found that the Hendrick Hudson Central School District ("Defendant" or the "District") did not violate its "child-find" obligations under the IDEA and that it need not reimburse Plaintiffs for their unilateral placement of W.E. at the Northwood School ("Northwood" or the "School") for the 2011–12 and 2012–13 school years. The Parties cross-move for summary judgment; Defendant moves to amend its Answer to add a counterclaim to seek reimbursement of certain monies it was ordered to pay Plaintiffs in connection with a subsequently reversed determination by one of the New York State Impartial Hearing Officers ("IHO") who considered certain of the claims in this case; and Plaintiffs in their notice of motion request an order that Defendant pay them the sums requested by Defendant in their proposed counterclaim. For the reasons to follow, Defendant's Motion is granted in part and denied in part, and Plaintiffs' Motion is granted in part and denied in part.

I. Background

A. Factual Background

The following facts are taken from the Parties' Local Rule 56.1 Statements and the documents contained in the record.

1. W.E.'s Experience in the District

At the time of the first hearing in this case, WE. was a fifteen-year-old ninth

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grade student attending a private residential school ("Northwood") in New York, although he had attended public school in the Hendrick Hudson Central School District through eighth grade (the 2010–11 school year). (See Case I Hr'g Tr. 1632; Case I Joint Ex. 54 (Aug. 30, 2011 Withdrawal Letter); see also Def.'s Rule 56.1 Statement ("Def.'s 56.1") ¶¶ 1–2 (Dkt. No. 34); Pls.' Resp. to Rule 56 Statement ("Pls.' 56.1") ¶¶ 1–2 (Dkt. No. 40); Pls.' Supporting Rule 56 Statement ("Pls.' Cross 56.1") ¶¶ 503–04 (Dkt. No. 41); Def.'s Resp. to Pls.' Rule 56.1 Statement ("Def.'s Cross 56.1") ¶¶ 503–04 (Dkt. No. 42).) W.E.'s early years in the District were generally successful: he performed well in elementary school, participated in a number of extracurricular programs, and began middle school engaged in academics, reading, art, music, and his friendships. (See Case I Hr'g Tr. 1633–36; Case I Pls.' Ex. M (2007–08 Report Card); see also Pls.' Cross 56.1 ¶¶ 11–17, 24; Def.'s Cross 56.1 ¶¶ 11–17, 24.) He began to encounter difficulties, however, in sixth grade, when he started to experience increasingly intense internal pain, which led to an emergency appendectomy. (See Case II Hr'g Tr. 816–17; see also Pls.' Cross 56.1 ¶ 25; Def.'s Cross 56.1 ¶ 25.) W.E.'s pain was diagnosed as abdominal migraines, and he missed at least 26 days of school. (See Case I Joint Ex. 65 (6th grade attendance summary); see also Pls.' Cross 56.1 ¶ 25; Def.'s Cross 56.1 ¶ 25.)

The difficulties caused by W.E.'s migraines continued into the seventh grade (the 2009–10 school year), and he also began to experience more conventional migraines, leading him to miss at least as many school days as the year before. (See Case I Joint Ex. 66 (7th grade attendance summary); see also Def.'s 56.1 ¶ 6; Pls.' 56.1 ¶ 6; Pls.' Cross 56.1 ¶ 26; Def.'s Cross 56.1 ¶ 26.) According to M.S., by September 2009, W.E. had been begun experiencing these headaches "almost daily." (See Case I Joint Ex. 1 (Apr. 23, 2010 email from M.S.); Pls.' Cross 56.1 ¶ 77; Def.'s Cross 56.1 ¶ 77.) Although W.E.'s parents had initially thought they were related to temporomandibular joint dysfunction ("TMJ"), (see Case II Hr'g Tr. 817–18), abdominal migraines can evolve to become more classical migraine headaches, (see Case I Hr'g Tr. 889), consistent with W.E.'s experience. According to Dr. Michael Lasser ("Dr. Lasser"), W.E.'s pediatrician, W.E.'s migraines were chronic, "[p]rofoundly severe," and, "[i]n [his] opinion[,] ... impacted every aspect of [W.E.]." (Case I Hr'g Tr. 1495, 1509.) As M.S. explained, "whenever [W.E.] had a migraine, he was completely debilitated" and "couldn't really do anything." (Id. at 1660–61.)

During the winter, M.S. requested a "team meeting," (see Case I Hr'g Tr. 1641), and, additionally, in the third quarter when W.E. missed a number of days of school, the District held an "Instructional Support Team" ("IST") meeting in the spring of 2010 to discuss W.E.'s absences and "incomplete" grades, after which W.E. was allowed to make up his missing work, have his incompletes removed, and receive grades in the A or B range, (see Case I Hr'g Tr. 1198–200; see also Def.'s 56.1 ¶ 7; Pls.' Cross 56.1 ¶ 7). By April 2010, when his headaches were "getting worse and worse," M.S. referred W.E. to the Section 504 committee and sent a note to the guidance counselor requesting home instruction. (Case I Hr'g Tr. 1641.)¹ According to Brooke Bolen ("Bolen"), a counselor

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and Section 504 case manager at Blue Mountain Middle School, (see id. at 1174–75), that tutoring was approved, (see id. at 1202–03), rendering W.E. eligible for four hours of tutoring in May 2010, (see Case I Def.'s Ex. 33 (Home Instruction Tutoring Form); see also Def.'s 56.1 ¶ 32; Pls.' 56.1 ¶ 32). W.E. went on to receive scores on his state assessments that demonstrated mastery or proficiency in the subjects of English Language Arts and Math. (See Case I Def.'s Ex. 32 (Student Test Scores Detail); Def.'s 56.1 ¶ 13; Pls.' 56.1 ¶ 13.)

On May 25, 2010, as part of W.E.'s referral to the Section 504 committee, Dr. Richard Brodsky ("Dr. Brodsky"), the school psychologist, conducted a psycho-educational evaluation of W.E. (See Case I Hr'g Tr. 464–65; 698–99; Case I Joint Ex. 4 ("Brodsky Report"); see also Def.'s 56.1 ¶¶ 14–16; Pls.' 56.1 ¶¶ 14–16.) In his report, Dr. Brodsky noted that his "[c]urrent impressions [of W.E.'s conditions] include a history of TMJ and a mixed headache disorder," and described W.E. as "a soft-spoken 13–5 [sic] year old boy" who rarely smiled or engaged in casual conversation other than moments initiated by the examiner. (Brodsky Report 1–2.) As part of that evaluation, Dr. Brodsky performed the Woodcock–Johnson–III Tests of Cognitive Abilities ("WJ–III COG"), the Woodcock–Johnson–III Tests of Academic Achievement ("WJ–III ACH"), and the Behavior Assessment System for Children–Second Edition ("BASC–2"), in addition to interviewing teachers and reviewing pertinent records. (Id. at 1.) The WJ–III COG comprises seven subtests that measure a variety of cognitive skills, each with median scores of 100 and an average range of 80–120. (Id. at 2.) W.E. received a "General Intellectual Ability" standard score of 121, which equated to the 92nd percentile, placing him above the average range when compared to same-age peers. (Id. ) The WJ–III ACH similarly involves a variety of subtests, for each of which W.E. received scores in the average to advanced range, except for math fluency, where his score fell in the "low average" range. (See id. at 3–4.) The BASC–2 test was completed by W.E. and two teachers. (Id. at 4.) The test produces "T scores" for a variety of areas, with a mean of 50 and an average range of 40 to 60, with scores outside that range being considered "At–Risk" (which "may identify a significant problem that may not be severe enough to require formal treatment or may identify the potential of developing a problem that needs careful monitoring") or "Clinically Significant" (which "suggest[s] a high level of maladjustment"). (Id. ) W.E. received two at-risk scores in (1) "Relations to Parents," which Dr. Brodsky indicated was "reflective of the difficult communication patterns that often exist between parents and young teenagers," and (2) "Attitude Towards School," which "was marked by responses related to feeling bored with school and disliking school." (Id. ) The clinically significant score came from just one of the teachers and was in the area of "Somatization," (id. ), which Dr. Brodsky testified was "[p]hysical complaints, complaints of being ill," (Case I Hr'g Tr. 716).² In his report, Dr. Brodsky said that this clinically significant score "seems to [have] be[en] directly related to moments where [W.E.] complain[ed] of not feeling well and ask[ed] to see the nurse." (Brodsky Report 4.) In summary, Dr. Brodsky concluded

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that W.E. was a "pleasant 13–5 year old boy in the seventh...