W.G. ex rel. K.G. v. New York City Department of Education (801 F. Supp. 2d 142, 2011)

Opinion and Order

LAURA TAYLOR SWAIN, District Judge.

Plaintiffs W.G. and M.G. bring this action, individually and on behalf of their minor son, K.G. (collectively, “Plaintiffs”), against the New York City Department of Education (“Defendant” or “DOE”), pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. (“the IDEA”). Plaintiffs’ application for reimbursement for tuition paid for their unilateral out-of-state placement of K.G. at Cross Creek Academy, LLC, a residential therapeutic school in Utah (“Cross Creek”), was denied by their local Committee on Special Education (“CSE”). They sought due process review of that decision pursuant to the IDEA and New York State law; on October 27, 2009, the Impartial Hearing Officer (“IHO”) who conducted the “impartial due process hearing” found that K.G. was eligible for special education programs and services as a student with an emotional disturbance, and ordered the school district to reimburse Plaintiffs. The DOE petitioned for further administrative review of the IHO’s decision and, on January 21, 2010, the State Review Officer (“SRO”) reversed the IHO’s decision, finding that K.G. did not meet any of the criteria for eligibility as a student with an emotional disturbance under the IDEA, and was therefore ineligible to receive the special education programs and services provided for by the statute. Plaintiffs were thus denied reimbursement for their costs incurred in connection with the placement of K.G. at Cross Creek.

Plaintiffs’ complaint before this Court seeks review and reversal of the SRO determination. See 20 U.S.C.A. § 1415(i)(2)(A)-(C) (West 2010). Defendant moves for summary judgment, seeking dismissal of Plaintiffs’ complaint. Plaintiffs cross-move for summary judgment, seeking full reimbursement for the tuition costs they incurred, plus attorney’s fees and the costs incurred in bringing this action. The principal disputed issues are whether K.G. qualified as a student with an emotional disturbance under the IDEA, whether the Cross Creek program was an appropriate unilateral placement by Plaintiffs, and whether the equities favor reimbursement. The Court has jurisdiction of this action pursuant to 20 U.S.C. § 1415(i)(2) and 28 U.S.C. § 1331.

The Court has reviewed thoroughly all of the parties’ submissions, including the entire administrative record. For the reasons set forth below, Defendant’s motion for summary judgment is granted, and Plaintiffs’ motion is denied.

I. Statutory and Procedural Framework

The IDEA was enacted “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their needs ... [and] to ensure that the rights of children with disabilities and the parents of such children are protected.” 20 U.S.C.A. § 1400(d)(l)(A)-(B) (West 2010). “Under the IDEA, states receiving federal funds are required to provide ‘all children with disabilities’ a ‘free appropriate public education.’ ” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir.2007) (quoting IDEA, 20 U.S.C. § 1400(d)(1)(A)). Section 1401 of the statute defines “child with a disability” to mean

a child—

(i) with intellectual disabilities, hearing impairments ..., speech or language impairments, visual impairments ..., serious emotional disturbance (referred to in [the statute] as “emotional disturbance”), orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and

(ii) who, by reason thereof, needs special education and related services.

20 U.S.C.A. § 1401(3) (West 2010). Department of Education regulations (and substantially identical regulations adopted by the New York State Education Department in connection with the implementation of the federal statute) define “emotional disturbance” as

a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child’s educational performance:

(A) An inability to learn that cannot be explained by intellectual, sensory or health factors.

(B) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers.

(C) Inappropriate types of behavior or feelings under normal circumstances.

(D) A general pervasive mood of unhappiness or depression.

(E) A tendency to develop physical symptoms or fears associated with personal or school problems.

34 C.F.R. § 300.8(c)(4)(i) (2010). See also N.Y. Comp.Codes & Regs. tit. 8, § 200.1. The regulation goes on to provide that the term emotional disturbance “does not apply to children who are socially maladjusted, unless it is determined that they have an emotional disturbance under paragraph (c)(4)(i) of this section.” 34 C.F.R. § 300.8(c)(4)(ii) (2010).

The relevant state or local educational agency must conduct an individualized evaluation to determine whether a child is one with a disability, and develop an annual written “individualized education program” (“IEP”) for each child with a disability. 20 U.S.C.A. § 1414(d) (West 2010). The evaluation process can be initiated by the agency or the child’s parent, cannot be commenced without parental consent, and is subject to statutory temporal and procedural requirements. 20 U.S.C.A. § 1414(a)(1) (West 2010), In New York, IEPs are developed by local “Committees on Special Education” (“CSEs”) in conjunction with the disabled student’s parents. N.Y. Educ. L. § 4402(1)(b)(1).

The IDEA requires that parents be provided with an opportunity to present a complaint regarding the identification, evaluation, or placement of their child through the IEP process, 20 U.S.C.A. § 1415(b)(6)(A) (West 2010). Parents who are dissatisfied with a school district’s disability status determination, or IEP, may unilaterally place their child in a private school, at their own risk, and then seek a retroactive tuition reimbursement from the local school district. 20 U.S.C.A. § 1412(a)(10)(C) (West 2010).

If the parents believe that the school district has not responded appropriately to their complaints, the IDEA grants them the right to pursue their grievances through an “impartial due process hearing” before an IHO. 20 U.S.C.A. § 1415(f)(1)(A) (West 2010); N.Y. Educ. L. § 4404(1)(a). The IHO’s decision may be appealed by either party to an SRO, who independently reviews the findings and the decision rendered by the IHO. 20 U.S.C.A. § 1415(g) (West 2010); N.Y. Educ. L. § 4404(2). The SRO’s decision may in turn be challenged in federal district court, which is empowered to “receive the records of the administrative proceedings,” to “hear additional evidence,” and to “grant such relief as the court determines is appropriate” based on “the preponderance of evidence” before it. 20 U.S.C.A. § 1415(0(2)(C) (West 2010); N.Y. Educ. L. § 4404(3); see also Forest Grove School Dist. v. T.A., 557 U.S. 230, 129 S.Ct. 2484, 2492, 174 L.Edüd 168 (2009) (the IDEA “gives courts broad authority to grant ‘appropriate’ relief,” including reimbursing the parents when appropriate).

II. The Factual Record

The following section summarizes the pertinent aspects of the voluminous factual record, including relevant undisputed facts. K.G. was born on May 17, 1991. In the 2007-08 and 2008-09 academic years he was sixteen and seventeen years old and in the eleventh and twelfth grades. (Tr. at 465.)

A. Manifestations of Academic and Behavioral Problems

K.G. began having serious academic problems in the tenth grade while attending St. Edmund’s Preparatory School, a private school. (Id.; IHO Hr’g Ex. CC-1. ) K.G. worked just hard enough so that he could play on the sports team, and was suspended “a few times” for exhibiting disruptive behavior, until he eventually failed several classes and was expelled from the school. (SRO Dec. at 2; Tr. at 466-67.) K.G.’s parents enrolled him in James Madison High School (“Madison”), a New York City public high school, for the 2007 summer session, which he completed successfully, and he continued there as an eleventh-grader in the fall of 2007. (Tr. at 466-67.) According to K.G.’s mother, M.G., K.G. “cooperated” in the initial weeks of the fall semester but, when KG.’s class schedule was changed by Madison a few weeks into the fall 2007 session, his emotional state deteriorated, he did not want to attend school any longer, and he would escape through the school’s back door after M.G. drove him to school and watched him enter the building. (Id. 472-74.)

B. Private Therapeutic Intervention: Communications with DOE

Beginning in approximately October 2007, KG.’s parents had him evaluated by a psychiatrist and treated by a psychologist. Although there is no contemporaneous documentation of the initial consultation or diagnosis in the administrative record, the psychiatrist, Irene Gurvits M.D., represented in a letter written in March 2009 (after the CSE’s denial of disability status to K.G.), that she had diagnosed K.G. between October 2007 and March 2008 as “MDD 296.33 r/o Bipolar Disorder Depressed 296.53, GAD 300.02 PSA 304.80” and “ASPDO 301.70.” (IHO Hr’g Ex. S-1.) Her brief narrative description of him in that letter was as follows: “[K.G.] is a 10th grade HS drop out with h/o multiple arrests for assaults with bodily injury, Polysubstance abuse and dependence, neurovegitative Sx consistent with depression, anxiety and serious personality disorder. He has been unresponsive and defiant to multiple interventions and redirections by parents, family members, school counselors, therapist, this writer and law enforcement.... Due to serious Mood Disorder and Violent behavior and its implications, ... [K.G.] was heading for a parental bypass. Due to that the only option for [K.G.] was a Lock-down therapeutic school with continuous 24/7 observation to prevent harm to himself or others.” (Id.) An undated Social History apparently taken by Dr. Gurvits notes that K.G. was referred by “parents + lawyer” because of depression, anxiety, agitation, poor academic achievement, behavior problem, “refusal to attend school violent B/R, destroying property indictment by grand jury for 2 assault charges for inflicting bodily injury to another teenager.” (IHO Hr’g Ex. R-3.) The notes further indicate that K.G. had a history of outpatient treatment at 10-11 years of age because of “explosive B/R mood swings for lyr/wkly,” that he was treated with therapy with negative outcome, “then refused to attend.” A history of drinking in excess of 20 beers on weekends, with alcohol abuse since the age of 12 was also noted. (Id. at R-6.) Also indicated are a negative experience with school, and that he was an unhappy, poor student who “refuses to attend school, refuses home schooling.” (Id. at R-11.) He is further noted to get along “selectively” with others but not with his parents, and to socialize with friends and a “GF” of six months. According to the history, K.G. was in no program and “refuses adamantly to attend school, refuses home schooling, when not working just hangs out,” and “has very poor I/J and impulse control ... listens to music & smokes ... MJ; parents have no control over him.” (Id. at R-12.)

KG.’s mother indicated that she made a number of efforts to draw K.G.’s truancy-issues and major depression diagnosis to the attention of Madison guidance officials in the fall of 2007, including making specific requests to change his schedule, but she was rebuffed and told that it was her job to get him to school. (Tr. at 472-74.) According to M.G., K.G. dropped out of school in November 2007, “isolated himself’ from his family, discussed the “futility of life,” “self-medicated” with marijuana and “seemed not to care about himself or anyone else.” (Id. at 489-92.)

In the winter of 2007 to 2008, with the assistance of an advocate and the help of outside agencies including “Help Your Teen” and “Family in Crisis,” the parents investigated alternative placements for K.G., including a program for “Troubled Teens” at Cross Creek. (Id. at 496-97, 500-03.)

In a report of a March 19, 2008, evaluation, psychologist Robert Meyers reported the results of administration of a personal assessment inventory (PAI), a sentence completion test, a clinical interview and a review of records. (IHO Hr’g Ex. AA-1.) Dr. Meyers stated that KG. admitted “to multiple arrests, assaults, felonies and [that he has] dropped out of 11th grade. He has no job, and is involved in drug usage on a part time basis.” (Id.) Dr. Meyers’ written report presented the following conclusions:

[KG.’s] responses during the current evaluation indicate an adolescent who is experiencing a great deal of difficulty complying with the everyday demands of life. He tends to be negative and oppositional with regard to authority figures, and intrusive, manipulative and assaultive with regard to peers. However, with young or impaired children, he can be protective and caring. [K.G.] lacks adequate impulse control and is frequently careless and indifferent with regard to the consequences of his actions. [K.G.] tends to project the blame onto others, however, he will admit to inappropriate behavior, sometimes showing remorse.

[K.G.] seeks attention in a negative fashion. An underlying need for nurturance has become confused with hostility and a great deal of anger is near the surface, only to come out when impulses escape. He is very alert and sensitive to nuances interpersonally. In some ways, he is hyper alert and can utilize this defensively in meeting his own needs. At times, he can lose perspective and his emotions can easily overwhelm him.

Interpersonally, [KG.] has many serious emotional problems. His self-concept is regressed, infantile, dependent, passive, and ineffectual, with underlying impulsive and aggressive elements. He views his environment and those in it as unsatisfying and potentially dangerous and threatening. His ego defenses are unable to contain his impulses. His thinking deteriorates, judgment becomes poor, and he is unable to maintain impulse control. Generally, his thinking becomes bizarre under stress, but there is the potential for [K.G.] to become explosive. He clearly can be a threat to himself and others because of the amount of inner conflict, bizarre thought processes and poor impulse control.

Current meds: Zoloft

Buspare

Axis I Oppositional Defiant Disorder

[KG.’s] recurrent pattern of negativistic, defiant, disobedient, and hostile behavior toward peers and authority figures falls within the scope of Oppositional/Defiant Disorder. His frequent loss of temper, arguments and assaults, defiance, blame on others, resentfulness and spitefulness typically causes clinical [sic] significant impairment in his social, academic and occupational functioning.

(IHO Hr’g Ex. AA-2 to AA-3.) The report makes no reference to any diagnosis of depression.

C. Unilateral Cross Creek Placement; Request for Services Under IDEA

According to Plaintiffs, after consulting with KG.’s private therapist and psychologist, they determined that he required a residential placement and chose Cross Creek, a “residential treatment center” with a “therapeutic component,” (SRO Dec. at 3; Tr. at 395.) They then sent two letters to school and DOE personnel, each dated March 20, 2008. In a letter to “Cheryl Knobel, or current chairperson” they stated: “Our son [K.G.], born May 17,1991 attended James Madison High School and is not attending school. [KG.’s] student ID is [omitted]. I am requesting that CSA provide a Free Appropriate Public Education for my son. I believe my son requires special education services.” (IHO Hr’g Ex. 1.) In a letter of the same date addressed to “Ms. Selter, Guidance,” the parents wrote: “We believe [K.G.] needs Special Education with residential placement, for his disability. We know that process can take time so we are placing him in Cross Creek School for Boys until the Department Of Education can find appropriate placement.” (IHO Hr’g Ex. FI.) A DOE “Notice of Referral” treating the parents’ letter as a referral for a determination regarding KG.’s educational needs and special educational services, and containing information about the determination process and the need for parental consent, was prepared, dated March 28, 2008. (IHO Hr’g Ex. G-1.) On April 3, 2008, through private arrangements made by the Plaintiff parents, K.G. was “forcibly taken” by two retired police officers to Cross Creek. (Tr. at 475-77.) At the time K.G. was taken to Cross Creek, an appearance in court in connection with an assault charge was looming. (Id. at 508-15.)

The IHO hearing record and the parties’ subsequent submissions reflect that, between April 7 and May 29, 2008, the school district staff and the parents attempted to contact each other to discuss the status of the KG.’s evaluation. The DOE’s file on KG.’s evaluation request was apparently closed and then reopened during this time period after M.G. followed up on the March 20th request.

An April 26, 2008, intake evaluation report by Cross Creek therapist Ludmil Manov, M.D., a psychiatrist, reported that [K.G.] had previously been diagnosed with depression and had been on the medications Sertraline and Busprion “since August.” According to the report, [K.G.] said that “he has chosen to come to the program in order not to go to jail where he had been detained 3 times for 24 hours.” History information provided by K.G. and M.G. indicated that K.G. had been doing well until the 10th grade, when he had a conflict with his hockey coach and became “depressed, irritable and isolative.” K.G. related that he had used marijuana (“pot”) daily for the preceding two years and drank excessively on weekends, and that he was experiencing anxiety about separation from his girlfriend. As to “social history,” Dr. Manov related that “[K.G] has always done well in school .. [,] has multiple friends and denies any gang involvement.” He is reported to have “quit going to school as he was very anxious and irritable about his legal charges.” Dr. Manov characterized K.G. as “a friendly and cooperative young man with good eye contact ... [who] described his mood as I’m doing well but I don’t like it here ... His insight and judgment is good as he is willing to change however this is discrepant with the report from his therapist who describes him as manipulative and dishonest.” Summing up, Dr. Manov described K.G. as having

[S]uffered with mild to moderate depressive symptoms due to conflict with his hockey coach and quitting his involvement in hockey. This culminated in legal charges filed and also giving up on his school however he has never been suicidal and has been able to enjoy social activities. [K.G.] reported that he has calmed down and is feeling much better after coming to the program. He has-been on Zoloft and Busprion since August 2007 with good response. It is of note that he doesn’t express remorse for charges of assault and fights where he hurt people however he wants to change and quite these behaviors.

(IHO Hr’g Ex. T-3.)

Dr. Manov diagnosed K.G. as follows: “Diagnosis AXIS I: Major Depressive Disorder, single episode and currently in full remission. Anxiety disorder, NOS, Conduct Disorder Adolescent Onset. AXIS II: Deferred. AXIS III: No diagnosis. AXIS IV: Dropped out of school and legal charges for assault currently out on probation, AXIS V: Global assessment functioning is currently 65.” The medication was continued, with an increase in the anti-anxiety medication, and work “with his therapist on his contract behavior,” as well as a three-month follow up, was also directed. (I'd) On May 16, 2008, Plaintiffs sent Dr. Meyers’ March 2008 evaluation report to the CSE chairperson, and the school district sent a letter to the parents on May 20, 2008, informing them of a June 10, 2008, appointment for the completion of consent documentation, a social history and psychological and educational evaluations of K.G. (Tr. at 66-68; IHO Hr’g Ex. 4.) By letter dated June 2, 2008, Plaintiffs responded that K.G. could not be brought from Cross Creek because he was a “flight risk,” and that, according to KG.’s psychologist and psychiatrist, bringing him back would “interfere [with] and disrupt” his Cross Creek program and schooling, (IHO Hr’g Ex. 3.) Plaintiffs did not appear on June 10, 2008, for the scheduled meeting and, by letter dated July 8, 2008, Defendant informed KG.’s parents that a new meeting had been scheduled for July 15, 2008, to complete KG.’s social history. (IHO Hr’g Ex. 5.) Plaintiffs participated in the July 15, 2008, meeting, but the district social worker determined that Dr. Meyer’s March 2008 report was incomplete because it did not include cognitive or academic achievement testing. (SRO Dec. at 5; Tr. at 87-88, 182-83.) Recognizing that K.G. could not easily be brought back from Cross Creek, Defendant authorized Plaintiffs to obtain an independent evaluation of K.G. in Utah at the district’s expense. (SRO Dec. at 5.)

Because Kenneth Seely, the independent psychologist Plaintiffs chose to conduct the evaluation, had a waiting list, K.G. was not evaluated until October 8, 2008. (SRO Dec. at 5.) Dr. Seely’s 17-page report of his October 8, 2008, evaluation of K.G., which Plaintiffs claim they provided to the district in November 2008 and Defendant acknowledges receiving in December 2008, details findings based upon the administration of numerous assessment tools, written information from a teacher and from KG.’s mother, and an interview. The stated purpose of the valuation was “to assess [KG.’s] current level of psychological and intellectual functioning and to address any treatment and/or placement recommendations.” (IHO Hr’g Ex. Z-1) Seely’s report summary indicates that KG. “appeared open and honest during the interview, often elaborating on questions and offering other information that helped to illustrate what he felt were his problems. Overall, it appeared that he gave a good effort and testing is a good representation of his current functioning.” (Id. Z-2.) In the interview, K.G. acknowledged alcohol abuse from the sixth grade and use of marijuana from the ninth grade, as well as fighting, and said the “the courts let him plea to completion at a program to have all of his charges dropped.” (Id. Z-3 to Z-4.) K.G. “denied any problems with peers, but had conflicts with teachers because he felt they had favorite students.” (Id. Z-4.)

On the basis of testing, Dr. Seely found that KG.’s general cognitive ability is in the average range of intellectual functioning. (Id. Z-6.) The “Depression Inventory" assessment “indicated a non-clinical level of depressive symptoms.” (Id. Z-10.) Dr. Seely’s “Conclusions and Recommendations” included the following:

The evaluation suggests that [K.G.] is a 17-year-old male who is currently functioning in the “average” range of intellectual functioning.... [His difficulties with particular intellectual skills as indicated by the testing] are not at the level of a learning disorder, but are likely to contribute to more difficulties in school and frustration in the learning process. This may contribute to testing findings that he has developed a negative attitude toward academic achievement, and is prone to significant behavioral/academic problems in the school setting. This is further supported by [KG.’s] statements that he enjoys the classes he does well in. [KG.’s] attitude about school appears to be a primary detractor to him being able to perform at expected levels in school because he “hates” school, and doesn’t feel he does well; even though he sees himself as an average to above average student. [K.G.] appears to have blamed many of his problems in school on teachers and the authoritative system of school, which included his mother hearing about his exploits and feeling that teachers favored students other than himself.... Although many of these difficulties may be a result of his struggles with academic material, [K.G.] is capable of average levels of work if he provides a concerted and concentrated effort in school. This level of motivation and participation does not appear likely due to his oppositional and behavioral difficulties that were reported from an early age. Therefore his academic difficulties are compounded by his behavioral difficulties .... He continues to have oppositional difficulties that will interfere with his level of motivation, although a consistent environment of behavior structure is reported to have helped him in applying himself in school. This environment will be necessary until he can work through other behavioral difficulties and can take more personal responsibility for himself and his schoolwork. ...

[KG.’s] testing indicated that his difficulties are focused on behavioral acting out and oppositional attitudes and chemical abuse, with some developing personality traits. Mother implied that past difficulties with depressive difficulties were a major component of his need for treatment, but these were not seen as prevalent in his current testing.... Testing indicated that his main difficulties are a disregard for social standards and problems in acting-out and impulsivity. Testing further stated that he is more likely to have difficulties with defiance, disobedience and truancy, and is likely to have a history of legal violations and court actions.... [KG.’s mother] also endorsed many oppositional behaviors at home, and [K.G.] admitted that he often yelled and screamed at his parents, particularly when school related topics came up. He felt that his parents “needed control” and testing indicated that he is more likely to be resentful of authority figures and have attitudes and behaviors related to conduct disorder .... These difficulties meet criteria for a Conduct Disorder, and he will require a restrictive behavioral environment to challenge his ideals and beliefs about his behaviors.... [K.G.] currently worries about being placed in prison and consequences that could result from this, but he will need to get beyond a mere fear of punishment and see how prosocial behaviors will help him and his life. Testing suggested that he continues to have hostile and aggressive impulses, and behavioral interventions can help to show him how his oppositional behaviors and ideals create problems. However, individual and group therapy will need to challenge his continued thoughts and acceptance of his aggressive lifestyle ....

(Id. Z14-Z-15.)

[K.G.] has been in treatment for several months, but he appears to still maintain many of his previous thoughts and ideals. This may be partly due to the formation of a personality style that includes a self-absorbed concern for strength and power. Testing indicated that he will tend to be egocentric, narcissistic, selfish and self-indulgent, and has strong needs for affiliation, social status and recognition.... These symptoms suggest the development of Narcissistic Personality traits, which are likely to further his oppositional ideals and acceptance of his acting out behaviors.... These narcissistic attitudes are likely to be counterproductive to his behavioral interventions, and will need to be addressed in his individual therapy.

(Id. Z-15.)

[KG.’s] other difficulty is his reported use and abuse of chemicals.... Drug and alcohol abuse is common with his behavioral profile .... He is given the diagnoses of Cannabis Dependence and Alcohol Abuse. He will require substance abuse interventions and involvement in 12 step programs to learn more about his addictions.

(Id. Z-16.)

Dr. Seely recommended that the then-current “interventions in the form of a residential treatment can help [K.G.] change his use of acting out as his means of coping with his life problems ... [but] it appears that these interventions are complied with but are not helping him to change his attitudes and ideals regarding his oppositional and antisocial behaviors.” (Id.) Individual, group and family therapy are recommended to, among other things “gain an understanding of his acceptance of oppositional and conduct disordered behaviors and his Narcissistic personality traits,” to “work more on his relationship with his parents,” and “to work on understanding how others feel, and understanding that his behaviors are not normal or expected.” (Id.) Dr. Seely further observed that “[K.G.] will need to be engaged in a significant regime of substance abuse interventions and attendance at 12-step meetings for his addiction.” (Id. Z-16 to Z-17.)

Dr. Seely’s “Diagnostic Impression-DSM IV” findings were as follows:

Axis I: ... Conduct Disorder, Childhood Onset, Moderate Cannabis Dependence Alcohol Abuse

Axis II: Narcissistic Personality traits

Axis III: Deferred

Axis IV: Problems related to drug abuse, social environment, familial, and relational problems

Axis V: Current GAF 55.

(Id. Z-17.)

D. CSE Evaluation and Determination

After further communication between K.G.’s parents and the school district, the CSE convened a meeting to evaluate K.G. on February 10, 2009. Attendees included a bilingual school psychologist who also participated as a district representative, a district social worker, a district special education teacher, an additional parent member, KG.’s parents, the parents’ advocate; and by telephone, Cross Creek’s academic director, KG.’s Cross Creek therapist, and another teacher from Cross Creek who worked as a regular education teacher for K.G. (SRO Dec. at 8.) Following a review of KG.’s records, and after hearing from the participants, the CSE determined that K.G. was not entitled to special educational services, and recommended that he return to the general education program, (Id.; see also IHO Hr’g Exs. 11,12-1 to 12-3.) The CSE’s handwritten “Contact Sheet” notes of its February 10, 2009, meeting summarized its determination as follows:

Eligibility for special services discussed to determine whether he fits disability criteria — reviewed 13 classifications. Recent psychol. testing indicated no evidence of learning Disability. Therefore the only remaining classif that could possibly be considered is E.D., however he did not meet the DOE criteria for E.D. [KG.’s] problems stem from his history of substance abuse and maladjusted behavior and the classific. does not apply to students who are socially maladjusted. Parents brought up that [K.G.] had a Dx of depression. The team noted that the depression coincided with his substance abuse and that the depression may be secondary to the substance abuse. Prior to the substance abuse, [K.G.] was doing well in school, had friends, good relationship with teachers and peers and there was no indication of depression. The psychol. report indicated a non-clinical level of depressive symptoms. Therefore he is not eligible for spec. educ. services. Other DOE-affiliated acad. progs for students with substance abuse were discussed.

(IHO Hr’g Ex. 12-3 to 12-2.)

E. IHO Request and Hearing

By letter dated February 10, 2009, KG.’s parents informed the school district of their disagreement with the CSE’s conclusions, that they believed K.G. should have been classified as IDEA-eligible and that they believed he required residential treatment, and informed the district that they would maintain his placement at Cross creek and “seek reimbursement for this residential program at the public’s expense.” (IHO Hr’g Ex. 13.) On February 26, 2009, Plaintiffs initiated a formal request for an Impartial Hearing, asserting that K.G. should have been classified as a child with emotional disturbance and that he required a “structured, therapeutic residential program in order to meet his unique special education needs and receive meaningful education benefit,” and seeking findings of various procedural and substantive flaws in the CSE proceeding, and reimbursement for Cross Creek tuition costs for the period from April 3, 2008 to June 30, 2009, as well as costs and fees. (IHO Hr’g Ex. A-1 to A-5.) Evidentiary hearings were held before the IHO on May 17, 2009, June 24, 2009, and July 7, 2009. K.G. graduated from Cross Creek with a high school diploma in April of 2009.

At the IHO hearing, Plaintiffs argued that K.G. was emotionally disturbed because he exhibited three of the characteristics of emotional disturbance that are identified in 34 C.F.R. § 300.8(c)(4) (2010) and N.Y. Comp. Codes & Regs. tit. 8, § 200.1, specifically an inability to build or maintain satisfactory interrelationships with peers and teachers; inappropriate types of behavior or feelings under normal circumstances; and a generally pervasive mood of unhappiness or depression.

The DOE presented testimony from Helene Potash, a Special Education Evaluation Program Placement Officer who had previously served for many years as a social worker in schools, and Katina Alterna, a bilingual Department of Education school psychologist. (Tr. at 59-60, 128-30.) Ms. Potash identified herself as the person responsible for the day to day management of the CSE function, including “managing and supervising the clinical and clerical staff,” reviewed CSE’s records concerning the timing of pertinent events in the K.G. matter, and testified concerning certain of the CSE and IEP-related procedures. (Id. at 60-104.)

Ms. Alterna testified that she is school psychologist for the CSE, and in that capacity performs psycho-educational evaluations, classroom observations and consultations with parents. She chairs CSE reviews, also acts as District Representative in connection with such reviews, and develops IEPs, among other duties. She testified that she is qualified to interpret the results of cognitive and achievement testing, as well as psycho-social evaluations. (Id. at 130-31.) She explained that a “District Representative is someone that chairs the CSE review, that has a knowledge of the disability classifications under the IDEA, and is aware of resources or — that the District has to offer these students who have a disability classification.” (Id. at 132.) She participated in KG.’s review as District Representative and as the school psychologist. (Id. at 133-34.) Ms. Alterna explained the basis of the CSE’s classification of K.G. as non-disabled and its recommendation of a general education program for him as follows:

After reviewing his records, consulting with his parents, as well as school personnel at the review, it was felt that [K.G.] did not fit into one of the disability classifications. We had the psych educational evaluation that indicated that [K.G.] had average intellectual ability, and that if he applied himself he would present grade appropriate work. We had the transcript that demonstrated that he had A’s and B’s and that he was actually nearing completion of graduating high school.... The classroom teacher indicated that he was doing well in school academically and socially.

We had an extensive psycho educational evaluation that was done on the outside, that indicated that [KG.’s] level of depression was not clinical, that it was not relevant at the time. [K.G.] denied having feelings of depression. [K.G.] did not feel that medication was actually helpful. The psychologist mentioned that [K.G.’s] behavior problems seemed to stem from his disregard for social standards and with his use of chemical abuse, his being impulsive, and under the IDEA students who are socially maladjusted or have a history of substance abuse, that does not qualify for the disability classification of emotional disturbance.

(Id. at 138-39.) In response to a request to define “social maladjustment,” Ms. Alterna testified:

Social maladjustment is a condition where one would violate the social norms and the social norms that are established. So they are students who experience difficulty — they have difficulties with truancy, substance abuse, they can be frustrated, manipulative, and they defy authority.

... And usually students who are — have a diagnosis of oppositional defiant disorder or conduct disorder usually have some type of social maladjustment.

(Id. at 140.) With respect to the rationale for the finding of non-disability, she added:

One of the therapist’s notes had indicated that — that [K.G.’s] major depressive — this depression was actually before admission [to Cross Creek], that his episode of depression was actually just one single episode and that it was mild and that it was in remission, that he did not — -his feelings of depression were not prevalent at the time. Actually his mood was actually stabilized. He was well behaved. And in the therapist’s notes, it mentioned that [K.G.] — was going to be considered to be — off medication, psychotropic medication. And at the time of the CSE review, it was noted that [K.G.] was off medication for actually two months and he was actually doing pretty well academically and socially without the meds. So it was very successful.

(Id. at 141.)

Ms. Alterna testified that the CSE considered all thirteen possible disability classifications with the parents, and that “the two that we felt might have been appropriate for [K.G.] were, one, learning disability, and the second would be emotional disturbance.” (Id. at 142.) The psychologist’s evaluation did not indicate that K.G. fit the learning disability criteria. (Id. at 142-43.) Ms. Alterna summarized the five criteria for emotional disturbance as follows:

One is an inability to learn that cannot be explained by intellectual, sensory, or health factors. Another would be inability to maintain satisfactory interpersonal relationships with peers or adults. A third one would be having a general mood of unhappiness or depression. A fourth one would be inappropriate types of behaviors under normal circumstances. And the fifth one is develop— physical symptoms or fears relating to school or personal problems.

They just need to have one of the criteria, and it just had — but it has to be there for a marked degree of time and for a long period of time, and it has to also adversely impact upon their overall educational performance.

(Id. at 144.) She testified that K.G. failed to meet the first criterion

Because he demonstrated average intellectual potential. He was actually performing well in school. That wasn’t an area of concern. The teacher reported good academic performance. The transcripts indicated A’s and B’s, and he was near completion of his high school credits. So that did not fit.

(Id. at 145.) The second criterion was considered inapplicable because

Basically, the school report and notes that we had — the school indicated that [K.G.] was actually performing well in school, that he actually was able to listen in class. He was able to follow the class rules and the routines. He was actually considered to be a mentor. He was involved in peer mentoring. He was part of the leadership team. And they — his level of progress was considered to be at the upper level. So, and I believe that is one of the highest levels that the school has for kids in that program. So he was actually performing very well. He related well with his peers and adults. So he didn’t fit this criteria at all.

{Id. at 146.) As to the third criterion,

The team felt that — the CSE team felt that [K.G.] did not meet this criteria. Mom felt that because he had a past history of depression, he should qualify for this criteria. But at the time of the review it was felt that he didn’t fit the criteria for having depression, or a pervasive mood of unhappiness. We had the pyscho educational evaluation that indicated that [K.G.’s] level of depression was actually non-clinical. It wasn’t prevalent at the time of testing. [K.G.] indicated to the psychologist that he didn’t have depression in the past, that he — that medication was actually [sic] helpful. The psychologist mentioned that [KG.’s] behaviors actually stemmed from his use of chemical-substance abuse. And actually stemmed from his disregard for social standards.

And according to the IDEA, students who are socially maladjusted, or have a history of depression, cannot be considered for the ED classification. In addition, we had the therapist’s notes that indicated that his major depressive disorder was actually a single episode. It was mild and it was in full remission. He was considered to be well behaved. There was a contingent plan to weed [sic] him off psychotropic medication. And by the time of the CSE review meeting, he was actually two months successfully off medication and he was doing well academically and socially. So this is why we felt that he did not fit the criteria for having a marked degree or period of time for depression.

(Id. at 146-47.) With respect to the fourth (inappropriate behaviors) criterion, the CSE concluded that “[t]here was nothing in his history or in his current functioning that indicated that he had inappropriate types of behaviors under normal circumstances .... That did not seem relevant to him.” (Id. at 148.) Finally, there was no history of fears or physical symptoms indicative of qualification for the fifth criterion. (Id.) The CSE examined the depression criterion most extensively of the five. (Id. at 149.) Commenting on the diagnosis of oppositional defiant disorder in Dr. Meyers’ March 19, 2008, report, Ms. Alterna explained that “[o]ppositional defiant disorder is a disorder in which one has a tendency to react in a negative, in a hostile and defiant way.” (Id. at 150-52.) The CSE considered the diagnosis in connection with the educational classification issue:

We looked into it. But it was felt that whether or not his condition adversely impacted his education, and that was not considered the case. And as I mentioned before, students who have a diagnosis of oppositional defiant disorder often have social maladjustment. So we did not feel that it was — that he fit the criteria of emotional disturbance.

(Id. at 152-53.) Ms. Alterna explained her understanding of the diagnostic conclusions in Dr. Manov’s April 26, 2008, report as follows:

So basically axis one ... was the clinical disorder that the therapist provided for [K.G.]. The major depressive disorder, it indicated that it — his feelings of depression, based on what the therapist indicated, it was a single episode and it was mild, and he mentioned that it was in full remission, meaning that it was not currently active — his feelings of depression. He put anxiety disorder, not otherwise specified, which is usually for students who have some type of anxieties of — or underlying feelings of anxiety.

Not otherwise specified — meaning some type of model stage. Conduct disorder adolescent onset, is students that have some type of behavior problems where they often violate the rights of others, or they violate the rules as presented or the societal norms. And that was an onset; he mentioned that it was an adolescent stage.

(Id. at 157-58.) This information was considered in making the classification determination. According to Ms. Alterna,

This validates our recommendation that [K.G.’s] level of depression was nonclinical, since it was in full remission. The conduct problems, as I mentioned before, can be with a lot of kids who have-are socially maladjusted will have this type of diagnosis.

So at the time, it did not seem that he fit the criteria for emotional disturbance classification. In addition, even though — may have a DSM diagnosis, it if doesn’t adversely impact upon their overall education or performance, you still cannot consider that to be appropriate for them to get the classification of emotional disturbance. And at the time, [K.G.] was functioning age appropriately in school.

(Id. at 159.) A social history report dated July 15, 2008, (IHO Hr’g Ex. W) had also been considered and, according to Ms. Alterna, “Basically, what I remembered, [K.G.] was behaving age appropriately— went into high school. And so that was a major factor in addition to the behavior problems stemmed from when he started the substance abuse and the truancy in school.” (Tr. at 162.)

Ms. Alterna made clear that the CSE’s conclusion of non-disability was based on KG.’s overall level of functioning as of the time of the meeting (i.e., February 2009) and that the CSE attributed the “behavior problems” to truancy, substance abuse and social maladjustment, conditions that Ms. Alterna appeared to believe disqualified K.G. for disabled-student classification in any event. (See id. at 169-70, 171, 175, 205, 231, 246.) She also testified that, as noted in the document summarizing the CSE review session, the CSE concluded that KG.’s depression disorder was secondary to his substance abuse. Ms. Alterna attributed this conclusion to what the CSE perceived as simultaneous onset of drug use, behavioral problems, and depression, and the reports of depression remission and non-clinical significance after KG.’s placement at Cross Creek:

Because his behavior problems started when he started the substance abuse. Prior to — prior to him using the substance abuse he was fine. He was doing well in school. There was no behavior or academic problems at all. It is when the substance abuse started was when all the behavior problems were manifesting.

(Id. at 237.)

Because at the time the parent mentioned that he had depression, he was also, he had an issue about the substance abuse. And so we didn’t feel that depression was the primary problem. The primary problem seems to be the substance abuse.

(Id. at 246.)

As I mentioned, we had the therapist’s report that mentioned that his depression was in remission. We had the psychological evaluation that indicates — the second psychological evaluation from Dr. Seely, that mentions that this level of depression was non-clinical ...

[T]hey didn’t say it was secondary. But they did mention that he had a history of substance abuse. And that was the contributing factor to his behavior problems, and not the depression ...

(Id. at 247.)

Based on Dr. Seely’s report, he mentioned that depression was not a significant factor, and that it was actually his substance abuse that was a factor to his behavior problems. And so we felt that the depression was secondary to his substance abuse.

(Id. at 248.) She stated that Dr. Meyer’s March 2008 conclusion that K.G.’s “frequent loss of temper, arguments and assaults, defiance, blame on others, resentfulness and spitefulness typically causes clinical [sic] significant impairment in his social, academic and occupational functioning” (IHO Hr’g Ex. AA-3) did not change her conclusion that K.G. was not disabled

[b]ecause this timeframe that he was exhibiting these type of behaviors, it seemed to coincide with his substance abuse and with his social maladjustment. And so I didn’t feel that it would — I don’t feel that it would change my recommendation, no.

(Id. at 250.)

On cross-examination, Ms. Alterna conceded that, notwithstanding her earlier testimony indicating that a student engaged in substance abuse or whose evaluation indicated social maladjustment would not qualify for the emotional disturbance classification, indicators falling within the emotional disturbance criteria could suffice for eligibility:

MR. WEINBERG: Is it your position that if a child is socially maladjusted that he or she is never emotionally disturbed?

MS. ALTEMA: As I mentioned before, if they — if it adversely impacts upon their emotional functioning, excuse me, academic functioning, then it can be possible that they can have an emotional disturbance. But it has to have also adversely and significantly impact [sic] upon their overall educational performance .... A student who is socially maladjusted can be considered ... emotionally disturbed, if their overall academic performance is adversely impacted.

MR. WEINBERG: So the issue is whether academic — if their academic functioning is impacted — is a more important issue than whether the child is socially maladjusted?

MS. ALTEMA: In order — in order for them to be considered for special education services, under the IDEA, to be considered to have a disability classification, it has to adversely impact upon their overall educational performance.

MR. WEINBERG: So, if social maladjustment adversely affects a child’s educational performance, then the child is emotionally disturbed under the IDEA?

MS. ALTEMA: You could be classified, yes.

MR. WEINBERG: My second question is about substance abuse. Is a child— can a child who uses alcohol or drugs be classified as emotionally disturbed?

MS. ALTEMA: Under the IDEA, no.

MR. WEINBERG: So any child who ever — who uses drugs or alcohol can never be classified as emotionally disturbed?

MS. ALTEMA: I wouldn’t say never. There might be also other criteria that would be considered them [sic] for the emotional disturbance classification.

MR. WEINBERG: So, just to clarify, social maladjustment or substance abuse on their own could not classify a child as emotionally disturbed, but they don’t preclude a child from being classified as emotionally disturbed?

MS. ALTEMA: Depending on whether or not the behavior is adversely impacting upon their overall educational performance.

(Id. at 176-80 (intermediate colloquies omitted).)

Ms. Alterna also appeared to acknowledge that truancy and dropping out are inappropriate behaviors that adversely affect academic performance, but considered social maladjustment and delinquency indicators to disqualify K.G. for the emotional disturbance classification:

MR. WEINBERG: [The October 2008 Seely report] says that — it says reasons for referral. It refers to drug use, dropping out of school, disrespect and getting into trouble with the law. Would you consider those inappropriate types of behavior or feelings under normal circumstances?

MS. ALTEMA: Those could be considered social maladjustment.

(Id. at 226.)

MR. WEINBERG: And so the question is, is dropping out of school, being disrespectful and getting into trouble — in trouble with the law, inappropriate types of behaviors or feelings under normal circumstances? Is that—

MS. ALTEMA: They are inappropriate types of behaviors.

(Id. at 229 (intermediate colloquy omitted).)

MR. WEINBERG: Did [KG.’s] dropping out of school, adversely affect his educational performance?

MS. ALTEMA: Well, if it is truancy, not being in school, obviously that would affect him in performance. But then again it is more of an issue of social maladjustment and delinquency as opposed to emotional disturbance.

(Id. at 231.) Ms. Alterna proffered no further explanation of her understanding of the relationship between social maladjustment or delinquency and emotional disturbance.

Jean Jepson, a “family representative” from Cross Creek who was neither a therapist nor an educator, testified that, upon arrival at Cross Creek, K.G. “did not love himself at all ... He wasn’t nice to talk to ... He was basically, I think, very angry and did not like himself.” (Id. at 112, 115-16.) She further testified that his affect “created some issues” and that he learned that he had to be nice and respectful at Cross Creek. (Id.) She acknowledged that KG.’s anger problem presented some learning process issues, but stated that “he learned real fast that we didn’t tolerate the anger, you know, we didn’t tolerate the outlashing stuff ... So he learned fast to do what he needed to do to that he could concentrate and things like that.” (Id. at 113.) By the time he left Cross Creek, K.G. “was very ... powerful and loved himself. He was not the angry child that he was before he learned all about being respectful.” (Id. at 114.)

Dr. Manov, the psychiatrist who had prepared the April 26, 2008, Cross Creek intake report (IHO Hr’g Ex. T), testified for Plaintiffs that K.G. suffered from depression and anxiety that affected his educational performance:

[Y]ou know, he needed, kind of, an adjustment and, you know, to improve his mood, and also to improve his functioning in the context of his mood disturbance. And so, you know, there was improvement in all areas of functioning, including the educational functioning. You can have social, educational, and also, kind of, biological functioning; the way he feels, his energy, his body, and how he eats, sleeps. But fortunately, he improved with the treatment.

(Tr. at 264-65.) He opined that, because symptoms of depression and anxiety continued after K.G. “quit doing drugs and alcohol,” it is “more likely than not that factors other than substance abuse caused his anxiety and depression,” (Id. at 265-66.) Later during his Cross Creek stay, Manov took KG. off of his medications. (Id. at 267.) As to KG.’s IDEA eligibility, Dr. Manov responded to Plaintiffs’ counsel’s question as to whether Dr. Manov believed the K.G. “meets the definition of emotional disturbance under IDEA” as follows:

Yeah, because of the severity of his disorder, you know, it is major depression. You know, this is a severe disorder. And also, the duration for which he was having symptoms, which is several months. He meets criteria for that. And, you know, and he had, as I said before, multiple impairments in different areas of his functioning in educational, social.... in multiple areas, like, educational, social, legal.... You know, he wasn’t functioning well in any of these areas. You know, he was having problems.

(Id. at 281-82.) On cross-examination Dr. Manov elaborated on his understanding of the IDEA criteria for emotional disturbance:

The criteria for IDEA is, you know, to have a severe and persistent mental illness, which, you know, kind of leads to impairment of functioning. And so, like, — impaired functioning, but, you know, it doesn’t fall into this criteria in terms of, you know, there is a less severe impairment. And although, like, the kid may not succeed in school, it’s kind of proportional to his or her potential. You know, with IDEA, the kids have major impairment in more than one area. And so, and in that regard, he meets the criteria for emotionally disturbed under IDEA.

[DEFENDANT’S COUNSEL:] I’m sorry. In which capacity?

DR. MANOV: In the capacity, like, to perform his duties as a student, to function socially as an adolescent his age, to have appropriate relationships with his family, and also to stay out of trouble with the law. And so he, you know, he wasn’t functioning in any of these areas.

(Id. at 282-83.)

Brian Parker, a Cross Creek therapist who holds degrees in psychology and counseling, testified that he had provided approximately five hours of group therapy to K.G. on a weekly basis at Cross Creek. As to KG.’s initial mood at the beginning of his stay at Cross Creek, Parker testified that

[K.G.] presents as a very angry young man. In getting to know [K.G.], there was the irritability that was definitely there. And he presented as clinically depressed with irritability as one of the symptoms of that.

(Id. at 296.) Parker further opined:

I don’t think [K.G.’s] depression was caused by his substance abuse, I think it was exacerbated by his substance abuse. I think [K.G.] used substances in order to attempt to self-medicate some of the depression and feelings of general unhappiness that he exhibited.... I don’t think his substance abuse caused his depression. In fact, — you can better attribute the depression to the chemical dependency with the diagnosis of depression.

(Id. at 298.) In response to a question by Plaintiffs’ counsel, Parker testified that K.G. had depression to a marked degree that adversely affected his educational performance. He explained further:

[KG.’s] depression affected his academic performance in that he was not very motivated to participate in school. And that it also — poor self-esteem issues — to where he actually had convinced himself that he wasn’t capable of participating in school. Oftentimes, he would not go or he would refuse to do the schoolwork. And sort of quitting on his terms, so that he didn’t have to try and fail, and that he just wasn’t going to do it. And that way, he would be able to preserve some of his self-image, self-esteem, that he tried hard to portray.

(Id. at 300.) KG.’s depression improved at Cross Creek, according to Parker, in that K.G. was no longer taking medication for depression upon discharge, “[a]nd he also no longer qualified for a diagnosis of depression.” K.G. began to participate in school and earned a high school diploma. (Id. at 300-01.) K.G. ceased to qualify for a depression diagnosis after about eight months of the Cross Creek program. (Id. at 306.)

Cross Creek’s principal, Douglas Bishop, testified as to the academic program provided for K.G., and described the school as a “residential treatment center, 24-hour lockdown, with a strong high school program and therapy program for students.” (Id. at 371.)

Dr. Seely, who had performed the October 2008 assessment and clinical evaluation, testified as to his findings. In response to questions by Plaintiffs’ counsel as to how K.G. felt about school and whether those feelings were inappropriate, Dr. Seely testified:

[KG.’s] general feeling about school was summed up in he hated school, he didn’t want to be in school, he’d rather be anywhere with other people and often would fight with his parents about school whenever that subject came up. ... [The feelings] would go along with the diagnosis of the conduct disorder that he has against authority and any kind of authoritative structure, especially that that was in school with him having significant problems with his teachers.

(Id. at 397.) Asked whether K.G. had “those feelings over a long period of time,” Dr. Seely responded that “[h]e did. He reported that those started in the sixth grade and that even in the elementary school he seemed to usually have problems with his teachers.” (Id. at 397-98.) As to the effect of these matters on educational performance, Dr. Seely testified:

We see that his overall skills are in the average range of 84, with specific difficulties in his reading comprehension and his reading composite level skills, in his ability to perform rote math tasks. And in his written expression they’re an 85 as well.

Now, although they are not at a level that constitutes a learning disorder, these do point to him having more frustration and difficulty in school, which has primarily been affected by his difficulties with authority and his unwillingness to participate in the educational process.

(Id. at 400-01.) Asked about “the difference between narcissistic personality traits and narcissistic personality disorder,” Dr. Seely explained that

The difference between narcissistic personality traits and narcissistic personality disorder is that the disorder cannot be formally given to an individual until after they are 18 years old. But given that [K.G.] met all the criteria for a personality disorder other than being 18, then the direction of therapy needs to be pointed toward helping him treat these narcissistic personality traits that had he been 18 he would’ve probably had the diagnosis of narcissistic personality disorder.

These would be something that develop over a long period of time and that he was still developing as an adolescent. And that these narcissistic personality traits contribute to a lot of his justifications of his behaviors to his feelings that he was entitled to engage in the behaviors that he had done. And then also, to overlook many of the things that he had done as being something that was not relevant to him or not important to him.

(Id. at 402-03.) As to the effect on K.G. of the feelings of entitlement, Dr. Seely continued:

They contributed a great deal to his conduct disorder in which he engaged in many illegal activities to him participating in the beating of some kids at which he was charged by the courts, and his general demeanor with his teachers.

He had had problems with teachers for a long time and this is part of the development of these traits is the difficulties that he had and the entitlement that he felt. He often would blame his teachers for h