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S.W. v. Warren

November 6, 2007

S.W., BY HER PARENT AND NATURAL GUARDIAN; J.W., INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; A.W., BY HER PARENT AND NATURAL GUARDIAN; A.W., INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; B.F., BY HIS PARENT AND NATURAL GUARDIAN; P.F., ECF CASE INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; J.F. AND P.F., BY THEIR PARENT AND NATURAL GUARDIAN; A.F., INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; L.T., BY HER PARENT AND NATURAL GUARDIAN; AND R.T., INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
SHEILA WARREN, SUED INDIVIDUALLY, AND AS DIRECTOR OF EARLY INTERVENTION SERVICES FOR ORANGE COUNTY; ORANGE COUNTY DEPARTMENT OF HEALTH; AND COUNTY OF ORANGE, DEFENDANTS.



The opinion of the court was delivered by: Conner, Senior D.J.

OPINION AND ORDER

Plaintiffs, S.W., A.W., B.F., J.F., P.F. and L.T., by their parents and natural guardians, bring this action against Sheila Warren ("Warren"), Orange County Department of Health (the "Department of Health") and County of Orange (the "County") alleging violations of rights under the Individuals with Disabilities Education Act ("IDEA") 20 U.S.C. §§ 1400, et seq., 42 U.S.C. § 1983, Section 504 of the Rehabilitation Act of 1973 ("Section 504") 29 U.S.C. § 794, Article 25 of the New York Public Health Law §§ 2540, et seq. and Article 89 of the New York Education Law §§ 4410, et seq. Defendants move to dismiss all plaintiffs claims pursuant to FED. R. CIV. P. 12(b)(6) on various grounds. We address each of these reasons in turn and grant defendants' motion to dismiss in part and deny defendants' motion in part.

BACKGROUND

The following facts are not findings of fact by the Court, but are taken from the Complaint and assumed to be true and construed in the light most favorable to the non-moving plaintiffs for purposes of deciding this motion.

I. Facts

S.W. is a 4-year-old girl with autism. She began Early Intervention in January 2005. According to plaintiffs, initial evaluations indicated S.W. exhibited symptoms of autism, but defendants did not inform her parents or recommend an evaluation by a neurologist or specialist. S.W. was not diagnosed until November 2005 when her parents took her for a private evaluation.

S.W.'s neurologist prescribed 30 hours of Applied Behavior Analysis ("ABA") per week, however from November 2005 through August 2006 S.W. did not receive ABA. S.W. received speech therapy during Early Intervention because she was non-verbal. In February 2006 the Early Intervention team agreed to increase therapy to three times a week and amended S.W.'s Individualized Education Program ("IEP"). However, S.W. did not receive any speech therapy between February 2006 and August 2006. In September 2006 plaintiff requested the County provide compensatory services but it refused, noting, in part, a shortage of providers. (Complt. ¶¶ 6, 37-43.)

A.W. is a 4-year-old girl with a primary diagnosis of autism, among other diagnoses. A.W. began attending Fred S. Keller Preschool in Rockland County in September 2006 because there were no appropriate placements for him in Orange County. The school is approximately 55 miles from A.W.'s home and A.W. spends approximately 4 hours a day commuting to and from it. A.W.'s mother contacted the bus company and defendants on numerous occasions requesting they use a shorter available route, but the County stated they had no control over the bus route. (Id. ¶¶ 7, 45-53.)

B.F. is a 4-year-old boy. In April 2004, B.F. began speech and occupational therapies through Early Intervention. B.F. began exhibiting symptoms of autism but defendants did not recommend or arrange evaluation by a specialist, and B.F. was not diagnosed until June 2005 when his parents took him to a developmental pediatrician. Thereafter, B.F. began ABA therapy. In April 2004 defendants took B.F.'s insurance information, assuring his mother it would not be billing the insurance company for services; however, in July 2006 his mother determined that the County had been billing for the services and B.F. had therefore "capped out" of coverage. In June 2007 a meeting was held to determine B.F.'s summer services and it was agreed he required continued services through the summer; however his mother was told he could receive extended services only from July 2, 2007 to August 14, 2007. (Id. ¶¶ 8, 55-64.)

P.F. and J.F. are 2-year-old boys. Early Intervention services started when defendants evaluated P.F. and J.F. in August 2006 and determined they needed speech therapy. In October 2006, pursuant to a team meeting, one extra session of therapy was allowed each week but P.F. and J.F. had to share it due to a shortage of providers. From October 2006 through January 2007 neither received any additional therapy. In a January 2007 meeting it was agreed P.F. and J.F. needed an additional session but the County again stated there was a shortage of providers. (Id. ¶¶ 9-10, 66-72.)

L.T. is 2-year-old girl. L.T. began speech therapy in September 2006 after an August 2006 evaluation. Although her initial evaluation indicated behaviors consistent with autism, defendant did not inform L.T.'s parents. L.T. was unable to participate in speech therapy due to "sensory issues" and occupational therapy was recommended. The occupational therapist noted L.T. demonstrated "social/emotional" difficulties and L.T. was then approved for "parent/child" group sessions and a social worker. Defendants did not recommend or arrange for evaluation by a neurologist or specialist, although she exhibited symptoms of autism. In December 2006, upon recommendation from a parent of another disabled child, L.T.'s parents arranged for an evaluation, and in January 2007 she was diagnosed with autism. The specialist recommended speech therapy 3 times a week, toddler development class 3 times a week and 20 hours of ABA starting promptly to increase her chances of becoming mainstreamed. The Individualized Family Service Plan ("IFSP") team agreed to increase L.T.'s speech therapy but only approved 10 hours of ABA per week. L.T. actually received only 6 hours of ABA per week, and when her parents questioned why they were told there were no providers available. (Id. ¶¶ 11, 74-96.)

II. Allegations

Plaintiffs allege defendants implemented policies which have: caused a shortage of service providers, including providers of speech, occupational and physical therapy, and ABA therapists, resulting in a lack of provision of necessary services to preschool children; limited the number of hours of ABA services for children diagnosed with autism in Early Intervention and preschool programs; limited the amount, duration and availability of extended year services to preschool children; billed plaintiffs' insurance carriers for provision of services, likely reducing plaintiffs' benefits and future coverage; failed to properly and timely evaluate or identify children in need of Early Intervention; failed to develop "sufficient and appropriate" programs to meet the needs of preschoolers with autism, so that plaintiffs were required to travel each day over 100 miles for up to 4 hours, substantially in excess of the travel time for non-disabled or other-disabled peers. (Id. ¶ 1.)

Orange County is required to provide Early Intervention services to developmentally disabled children in the county through its Department of Health. See N.Y. PUB. HEALTH LAW §§ 2540, et seq. (Complt. ¶¶ 12-13.) Sheila Warren is the Director of the Division of Intervention Services, responsible for the policies and administration of the Early Intervention Program and Preschool Related Services Program. See N.Y. EDUC. LAW § 4410(9)(c). Plaintiffs sue her individually and in her official capacity. (Complt. ¶¶ 14-16.) School boards are required to establish committees to develop, review and revise the IEP for each preschool child with a disability. N.Y. EDUC. LAW § 4410(3).

Plaintiffs claim that defendants failed to perform their legally required duties, including determination of eligibility, identification, referral, evaluations and provision of appropriate services and that they failed to adopt and implement policies, practices and procedures to ensure the performance and completion of proper and timely services. They also allege that defendants have instituted policies and practices to limit the number of available providers, causing denial and delay of necessary services; specifically, Warren has instituted a policy in which providers of speech, occupational, physical and ABA therapy could not contract with the County to provide services to Early Intervention children unless the providers agreed to maintain an arbitrary number of cases established by Warren. This resulted in a loss of previously contracted providers. Defendants have also implemented a policy and practice limiting the number of ABA hours for autistic children; failed to notify parents of defendants' legal obligations; and billed insurance providers for Early Intervention services. Plaintiffs also allege defendants failed to train staff and personnel who develop and implement IFSPs and failed to prepare and implement IFSPs to provide services to address all identified needs. Defendants have also discriminated against plaintiffs by requiring one of them to travel 4 hours a day to receive necessary services. For relief plaintiffs request: a judgment that the policies and procedures deprive plaintiffs of statutory rights and are illegal and in contravention of defendants' statutory duty; a preliminary and permanent injunction requiring that defendants timely evaluate and identify disabled children, rescind policies that limit the available service providers and the hours of ABA therapy, rescind policies that bill insurance carriers for Early Intervention services, and submit a plan to the Court to remedy the violations; that the Court require that defendants identify those who have not been provided timely and adequate services and order immediate provision, provide compensatory Early Intervention services, reimburse plaintiffs whose insurance carriers were billed, transport A.W. and similar plaintiffs by the shortest available bus route, provide the appropriate extended year services and related services to plaintiffs to whom defendants limited the amount of services; and costs and attorneys' fees. (Complt., Prayer for Relief.)

Defendants move to dismiss pursuant to Rule 12(b)(6) on the grounds that plaintiffs: fail to state a claim under Section 504; failed to exhaust administrative remedies as required for claims under the IDEA, Section 504, Section 1983 and state law; fail to assert a cause of action under Section 1983; can not bring an individual claim under the IDEA, Section 504, or state law against Warren; failed to file notices of claim for the state law claims; are time barred from bringing state law claims that accrued more than a year and 90 days prior to filing the complaint; and can not assert a claim against the Department of Health. We address below each of these grounds.

DISCUSSION

I. Standard of Review

On a motion to dismiss pursuant to Rule 12(b)(6), a court must accept as true all of the well pleaded facts and consider those facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984); Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005); In re AES Corp. Sec. Litig., 825 F. Supp. 578, 583 (S.D.N.Y. 1993) (Conner, J.). Furthermore, in assessing the legal sufficiency of a claim, the court may consider only the facts alleged in the complaint, and any document attached as an exhibit to the complaint or incorporated in it by reference. See FED. R. CIV. P. 10(c); Dangler v. N.Y. City Off Track Betting Corp., 193 F.3d 130, 138 (2d Cir. 1999); De Jesus v. Sears, Roebuck & Co., 87 F.3d 65, 69 (2d Cir. 1996).

On a motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6), the issue is "not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of N.Y., 375 F.3d 168, 177 (2d Cir. 2004) (internal quotation marks and citation omitted). "The Supreme Court has recently held that [w]hile a complaint attacked by a Rule 12(b) (6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Ello v. Singh, 2007 WL 3084979, *3 (S.D.N.Y. Oct. 19, 2007) (internal quotation marks omitted; alterations in original) (quoting Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007); see Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d. Cir. 2007) (determining that the Court in Twombly "is not requiring a universal standard of heightened fact pleading, but is instead requiring a flexible 'plausibility standard' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible."). Generally, "[c]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." 2 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 12.34[1][b] (3d ed. 1997); see also Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1088 (2d Cir. 1995). Allegations that are so conclusory that they fail to give notice of the basic events and circumstances of which plaintiff describes, are insufficient as a matter of law. See Martin v. N.Y. State Dep't of Mental Hygiene, 588 F.2d 371, 372 (2d Cir. 1978).

II. Section 504 Claim

"The Rehabilitation Act protects disabled individuals from discrimination in public services." Andree ex rel. Andree v. County of Nassau, 311 F. Supp. 2d 325, 334 (E.D.N.Y. 2004) (citing Weixel v. Bd. of Educ. of N.Y., 287 F.3d 138, 146 (2d Cir. 2002)). Section 504, in pertinent part, provides that "[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. ยง 794(a). To prove a violation of the Rehabilitation Act, a plaintiff must show that: (1) he is an individual with a disability; (2) he is otherwise qualified for benefits under a federally funded program; and (3) he has been denied those benefits because of his disability. See ...


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