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A.G. v. Frieden

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


March 25, 2009

A.G. AND L.G., ON BEHALF OF N.G., PLAINTIFFS,
v.
THOMAS R. FRIEDEN, NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE, DEFENDANT.

The opinion of the court was delivered by: Lewis A. Kaplan, District Judge

MEMORANDUM OPINION

Plaintiffs, the parents of the infant N.G., commenced this action pursuant to the Individuals with Disabilities Education Act ("IDEA"), as amended by the Individuals with Disabilities Education Improvement Act,*fn1 seeking review of a decision by Administrative Law Judge Kimberly A. O'Brien of the New York State Department of Health, which denied their application for reimbursement of the expenses they incurred in providing early intervention therapies for N.G.

Plaintiffs and defendant both have moved for summary judgment. For the reasons set forth below, defendant's motion for summary judgment dismissing the complaint is granted, and plaintiffs' motion is denied.

Facts

Statutory Background

n order to put the facts in context, it is helpful to outline the statutory program that gives rise to this action.

The IDEA has been described as "the most recent Congressional enactment in 'an ambitious federal effort to promote the education of handicapped children.'"*fn2 Under the IDEA, states receiving federal education funds are required to provide "all children with disabilities" a "free appropriate public education."*fn3

This action arises out of Subchapter III of the IDEA,*fn4 which addresses the educational needs of disabled children in the first three years of their lives. Sections 1433 and 1434 make funds available to states that adopt a policy providing "appropriate early intervention services . . . to all infants and toddlers with disabilities in the State and their families . . ." and comply with certain statutory requirements concerning the administration of such programs.*fn5

New York State has adopted an Early Intervention Program and participates in the program outlined in Subchapter III of the IDEA.*fn6 The program is available to infants and toddlers with a disability.*fn7 The parents of a child who seek benefits under the program first must have their child evaluated.*fn8 A meeting then is held among the interested parties to formulate an Individualized Family Service Plan ("IFSP") for the child. The meeting is to be attended by a parent, an "early intervention official," the evaluator, if available,*fn9 the initial service coordinator and such other persons as the parents may invite.*fn10 The IFSP formulated at the meeting must be in writing and must contain at least the following:

"(1) a statement of the infant's or toddler's present levels of physical development, cognitive development, communication development, social or emotional development, and adaptive development, based on objective criteria; "(2) a statement of the family's resources, priorities, and concerns relating to enhancing the development of the family's infant or toddler with a disability; "(3) a statement of the measurable results or outcomes expected to be achieved for the infant or toddler and the family, including pre-literacy and language skills, as developmentally appropriate for the child, and the criteria, procedures, and timeliness used to determine the degree to which progress toward achieving the results or outcomes is being made and whether modifications or revisions of the results or outcomes or services are necessary; "(4) a statement of specific early intervention services based on peer-reviewed research, to the extent practicable, necessary to meet the unique needs of the infant or toddler and the family, including the frequency, intensity, and method of delivering services; "(5) a statement of the natural environments in which early intervention services will appropriately be provided, including a justification of the extent, if any, to which the services will not be provided in a natural environment; "(6) the projected dates for initiation of services and the anticipated length, duration, and frequency of the services; "(7) the identification of the service coordinator from the profession most immediately relevant to the infant's or toddler's or family's needs (or who is otherwise qualified to carry out all applicable responsibilities under this subchapter) who will be responsible for the implementation of the plan and coordination with other agencies and persons, including transition services; and "(8) the steps to be taken to support the transition of the toddler with a disability to preschool or other appropriate services."*fn11

Other requirements of the IFSP are discussed in Section III(A) below. IFSPs must be reviewed at least every six moths to determine if modifications are appropriate.*fn12

Within the City of New York, the Early Intervention Program is administered by the New York City Department of Health and Mental Hygiene.*fn13 If a parent is dissatisfied with the IFSP formulated for his or her child, the parent may seek mediation or an impartial hearing before an administrative law judge.*fn14 A parent dissatisfied with the results of these state proceedings can bring an action for review in federal court.*fn15 A parent who rejects an IFSP and implements his or her own treatment program may be reimbursed for the cost of such program if the parent establishes that the IFSP is inadequate, the parents' treatment program is adequate, and reimbursement would not be inequitable.*fn16

N.G. and His IFSP

N.G., a resident of New York County, was born on December 29, 2004.*fn17

Between his first and second birthday, N.G. and his mother participated in a number of "mommy-and-me" activities, and his mother began to notice that N.G. could not sit still or pay attention at these activities.*fn18 His mother observed also that N.G. failed to make regular eye contact.*fn19 In September 2006, N.G.'s pediatrician diagnosed N.G. as suffering from autism.*fn20

Shortly after this diagnosis, N.G.'s mother contacted New York City's Early Intervention Program which assigned Elizabeth Placido to N.G.'s case.*fn21 Placido visited N.G.'s residence, conferred with his mother, and arranged for N.G. to be evaluated by Theracare, a service provider that contracts with New York City to conduct such evaluations and to provide treatment for autistic children.*fn22 Between October 4 and 11, 2006, Theracare conducted four separate evaluations: (1) a psychological evaluation, by Ingrid I. Rose, Ph.D., (2) a developmental evaluation and parent interview by Barbara Shapiro, M.S., (3) a speech/language evaluation, conducted by Madeline Vargas, M.A. and (4) an occupational therapy evaluation by Francia Brito, M.S.*fn23 The resulting evaluation confirmed the diagnosis of N.G.'s pediatrician and recommended that N.G. be provided with applied behavioral analysis ("ABA"), speech and occupational therapy.*fn24 The Theracare evaluation did not recommend a specific number of hours for any of these three modes of therapy.

In October and November 2006, N.G.'s parents arranged for evaluations by two privately retained physicians. Christopher Lucas, M.D., M.P.H., of New York University's Child Study Center, evaluated N.G on October 12, 24 and 31, 2006. He diagnosed N.G. as suffering from "Autistic Disorder - severity yet unknown"*fn25 and recommended that N.G. receive thirty hours of ABA therapy per week, five 45-minute sessions of speech therapy per week, and five hours of occupational therapy per week.*fn26

Cecelia McCarton, M.D., and Christine A. Williams, M.S. evaluated N.G. on November 1 and 9, 2006. They confirmed the diagnosis of autism and recommended thirty hours of ABA therapy per week, five one-hour sessions of speech therapy per week and five one-hour sessions of occupational therapy per week.*fn27 They further recommended that the therapies be provided over a seven-day week, that there be weekly meetings among N.G.'s therapists, and that N.G.'s parents be provided with at least two hours of instruction per week concerning ABA therapy.*fn28

A meeting to discuss and formulate the IFSP to be provided to N.G. was scheduled for November 13, 2006.*fn29 On an unspecified date prior to the meeting, N.G.'s mother claimed to have had a telephone conversation with an official of the Early Intervention Program during which she was told how many hours of treatment would be provided to N.G. N.G.'s mother described the alleged conversation as follows:

"I had spoken with Miss Asaria*fn30 [sic], and she called to confirm the IFSP meeting. She told me at the time that she had, she had secured an agency that was available to provide all of the services that NG would have. And of course, you know, I asked her what the services would be. "She took me through the ABA, the speech and the OT. And I asked her how much we would be getting. And at the time she said we'd be getting about twenty hours of ABA and about five of speech and some OT; that it was a pretty standard package; that she already had secured an agency to provide, and she needed to make sure they sort of had the availability or capacity to provide what he would need."*fn31

Ms. Placido denied any recollection of such a conversation.*fn32 Ms. Arias was not asked about the conversation.

The IFSP meeting was held as scheduled on November 13. The meeting was attended by both of N.G.'s parents, Valerie Sans (Initial Service Coordinator from the Medical & Health Research Association), Cheryl Dombrowski (Service Coordinator from Theracare) and Evelyn Arias (Early Intervention Program representative) and lasted approximately one and one-half hours.*fn33 Scheduling conflicts prevented the Theracare evaluators from attending the meeting, but their report had been provided to the attendees.*fn34 In addition, Ms. Dombrowksi had discussed N.G.'s case with the evaluators.*fn35 Prior to the meeting, N.G.'s parents provided Ms. Arias with copies of the evaluations prepared by Drs. Lucas and McCarton.*fn36 Ms. Arias testified that she read and considered the evaluations of Drs. Lucas and McCarton, although she indicated that she was not permitted to consider the frequencies for the services because that was a matter determined in formulating the IFSP.*fn37 Their evaluations, however, were not discussed at length at the meeting.*fn38 N.G.'s parents were the only attendees at the meeting who had actually met N.G., and they described N.G., his development and their goals for him.*fn39 Although N.G.'s mother testified that she that felt her opinions and the Lucas and McCarton evaluations were ignored,*fn40 Ms. Arias characterized the discussion at the meeting as an "open exchange."*fn41 Although N.G.'s parents dispute whether their comments were given any weight, they do not claim they were prohibited from offering comments or asking questions; everyone present at the meeting was given the chance to speak.*fn42

At the conclusion of the meeting, an IFSP was formulated for N.G. which provided for a twelve-month program of twenty hours of ABA therapy per week, five hours of speech therapy per week, three thirty-minute sessions of occupational therapy per week, family training of one hour per week with respect to ABA therapy and a one-hour team meeting once per month.*fn43 The IFSP further provided that N.G. would undergo an evaluation for physical therapy. This element was added as a result of comments made at the meeting by N.G.'s mother.*fn44

At the conclusion of the IFSP meeting, N.G.'s parents rejected all aspects of the IFSP except the speech therapy. On the last page of the IFSP they endorsed: "Developmental pediatrician recommendation [sic] for additional services; current early intervention services are insufficient to meet [N.G.'s] needs."*fn45 Thus, N.G.'s parents decided they would formulate their own treatment program for their son immediately after the IFSP meeting.*fn46

Four days later, on November 17, 2006, N.G.'s father wrote to New York City's Early Intervention Program, stating that, other than the speech therapy component of the IFSP, the services offered were "not adequate or appropriate for [N.G.] in light of his documented needs."*fn47 The letter further stated that N.G.'s parents intended to secure appropriate services for N.G. on their own and would seek reimbursement from the New York City Department of Health.*fn48

N.G.'s parents initially accepted the speech therapy offered by defendant. However, they grew dissatisfied with one of the individuals providing speech therapy to N.G. because her attendance was irregular and she frequently appeared without appropriate paperwork.*fn49 By February 2007, N.G.'s parents terminated the speech therapy being provided by the Early Intervention Program.*fn50

Accordingly, by February 2007, N.G. was not receiving any services pursuant to the Early Intervention Program. Instead, he was receiving in excess of forty hours of therapy per week, all of which had been arranged privately by his parents.

The Hearing and Decision

After an unsuccessful attempt at mediation, N.G.'s parents sought and were granted a hearing to review the IFSP. As a result of requests for adjournments by both sides, the hearing was held on six different dates between July 16 and October 25, 2007. N.G.'s parents were represented by counsel and called a total of nine witnesses. The transcript is over 1,800 pages long.

ALJ O'Brien issued her decision and dismissed the petition for review on January 16, 2008. She rejected plaintiffs' claim that the level of services N.G. would receive was predetermined before the IFSP meeting*fn51 and found that (1) the Early Intervention Program could have provided the services specified in the IFSP,*fn52 (2) N.G.'s parents were granted the right to participate in the IFSP meeting in a meaningful way,*fn53 and (3) the IFSP was appropriate.*fn54

Plaintiffs' Claims

Plaintiffs attack the ALJ's decision on both substantive and procedural grounds, arguing (1) the IFSP was predetermined; (2) the IFSP was substantively deficient; (3) the evaluations of Drs. Lucas and McCarton were improperly excluded; (4) N.G.'s parents were denied meaningful participation in the preparation of the IFSP; (5) the evaluation performed by Theracare did not assess N.G.'s gross motor skills and did not contain a functional behavioral analysis; (6) the ALJ improperly precluded plaintiffs from posing leading questions during the cross-examination of one of defendant's witness, and (7) the ALJ improperly precluded plaintiffs from offering rebuttal evidence.

Discussion

I. Applicable Legal Standards

The Court of Appeals recently has reviewed the "circumscribed" role of the federal courts in reviewing decisions of state education agencies in IDEA reimbursement actions.*fn55

"'[T]he role of the federal courts in reviewing state educational decisions under the IDEA is circumscribed.' Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007) (internal quotation marks omitted). While the district court must base its decision 'on the preponderance of the evidence,' 20 U.S.C. § 1415(i)(2)(C)(iii), it 'must give "due weight" to [the administrative] proceedings, mindful that the judiciary generally "lack[s] the specialized knowledge and experience necessary to resolve persistent and difficult questions of educational policy.'" Gagliardo, 489 F.3d at 113 (quoting Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206, 208, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)). Thus, district courts may not 'substitute their own notions of sound educational policy for those of the school authorities which they review.'"*fn56

"The deference paid to administrative proceedings is particularly warranted where, as here, the district court's decision was based solely on the administrative record."*fn57

When reviewing the denial of a reimbursement claim, a federal court engages in a three-step process. It asks whether (1) the state complied with the appropriate procedural requirements; (2) the IFSP complied with the substantive requirements of the IDEA and, if the IFSP fails under one of the first two steps, (3) the program for which reimbursement is sought is appropriate to the child's needs.*fn58

The principal aspect of the procedural inquiry is whether the parents "'had an adequate opportunity to participate in the development of [the] [IFSP].'"*fn59 Procedural errors , however, are subject to analysis for harmlessness. "[I]t does not follow that every procedural error in the development of an [IFSP] renders that [IFSP] legally inadequate under the IDEA."*fn60

"Only procedural inadequacies that cause substantive harm to the child or his parents -- meaning that they individually or cumulatively result in the loss of educational opportunity or seriously infringe on a parent's participation in the creation or formulation of the [IFSP] -- constitute a denial of a [free and appropriate public education]."*fn61

The substantive standard that an IFSP must meet is not a demanding one.

"'[A] school district fulfills its substantive obligations under the IDEA if it provides an IEP that is likely to produce progress, not regression, and if the IEP affords the student with an opportunity greater than mere trivial advancement.' Cerra, 427 F.3d at 195 (internal quotation marks omitted). School districts are not required to furnish 'every special service necessary to maximize each handicapped child's potential.'"*fn62

"School districts are . . . not required to give services that would enable handicapped children to maximize their potential 'commensurate with the opportunity provided other children.' . . . Instead, the IDEA requires that the educational plan be reasonably calculated to enable the child to receive 'meaningful' educational benefits."*fn63

Although the Court concludes that it is not necessary to reach the adequacy of the treatment program implemented by N.G.'s parents, defendant has stipulated that the parents' program is adequate and appropriate.*fn64

As the party challenging the decision of the state agency, the parents bear the burden of proving, by a preponderance of the evidence, that the IFSP is either procedurally or substantively defective and that the parents' plan is adequate.*fn65

Finally, although IDEA reimbursement claims most frequently are resolved by summary judgment motions, the traditional summary-judgment standards are not strictly applicable.

"As courts in this circuit have observed, a motion for summary judgment in an IDEA case often triggers more than an inquiry into possible disputed issues of fact. Rather, the motion serves as a 'pragmatic procedural mechanism' for reviewing a state's compliance with the procedures set forth in IDEA and determining whether the challenged [IFSP] is reasonably calculated to enable the child to receive educational benefits. Warton v. New Fairfield Board of Educ., 217 F. Supp.2d 261, 270 (D. Conn. 2002); see Wall v. Mattituck-Cutchogue Sch. Dist., 945 F. Supp. 501, 508 & n.6 (E.D.N.Y. 1996) (analogizing the role Rule 56 motions play in allowing courts to review administrative determinations in IDEA cases to the role Rule 12(c) motions play in allowing administrative review of Social Security determinations); see also Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 892 (9th Cir. 1995) ("Though the parties [in an IDEA action] may call the procedure 'a motion for summary judgment' . . . , the procedure is in substance an appeal from an administrative determination, not a summary judgment.")."*fn66

Thus, a number of decisions have noted that a genuine issue of fact neednot defeat a motion for summary judgment in an IDEA reimbursement action.*fn67

II. Plaintiffs' Procedural Challenges to the IFSP

Plaintiffs assert six procedural objections to the IFSP and the hearing before the ALJ: (1) the IFSP was predetermined; (2) the evaluations of Drs. Lucas and McCarton were improperly excluded; (3) N.G.'s parents were denied meaningful participation in the preparation of the IFSP; (4) N.G.'s gross motor skills were not evaluated prior to the meeting nor was a functional behavioral analysis performed as part of N.G.'s assessment; (5) the ALJ improperly precluded plaintiffs from posing leading questions during their cross-examination of one of defendant's witnesses and (6) the ALJ improperly precluded plaintiffs from offering rebuttal evidence.*fn68 None is meritorious.

A. Predetermination

Plaintiffs' predetermination claim is based on the conversation N.G.'s mother claims she had with either Ms. "Asaria" or Ms. Placido prior to the IFSP meeting. She claims that the specific levels of therapy N.G. would receive were described during this conversation.*fn69

Ms. Placido denied any recollection of such a conversation.*fn70

The ALJ did not make a factual finding as to whether the conversation described by N.G.'s mother actually occurred. Nevertheless, even if the conversation occurred in the manner described by N.G.'s mother, it would not have constituted a procedural deficiency sufficient to invalidate the IFSP.

The Court of Appeals recently rejected a predetermination claim arising out of similar facts. In T.P. ex rel. S.P. v. Mamaroneck Union Free School District,*fn71 the school district's consultant reviewed the report prepared by the parents' consultant prior to the meeting to formulate an IEP, and prepared a two-column chart listing the recommendation from the parents' evaluator and the "School Respon."*fn72 The IEP that actually was formulated substantially followed the program set forth under the "School Respon." heading in the consultant's pre-meeting chart, and the district court found that the school district improperly had predetermined the elements of the IEP. But the Court of Appeals reversed, holding that there was nothing inappropriate in the preparation of a proposed program prior to the meeting:

"First, Mamaroneck's consideration of educational programs for S.P. before the July Committee meeting did not violate the procedural requirements of the IDEA. The parents contend that the Committee chairperson repeated Young's premeeting recommendations at the meeting and therefore must have discussed them with Young before the meeting. Even if there was such discussion, this does not mean the parents were denied meaningful participation at the meeting. IDEA regulations allow school districts to engage in 'preparatory activities . . . to develop a proposal or response to a parent proposal that will be discussed at a later meeting' without affording the parents an opportunity to participate. See 34 C.F.R. §§ 300.501(a)(2) & (b)(3). Mamaroneck's conduct was consistent with these regulations."*fn73

Thus, even if the conversation between N.G.'s mother and Ms. Placido occurred in the manner described by N.G.'s mother, it would not have constituted improper predetermination.

B. Alleged Exclusion of the Evaluations of Drs. Lucas and McCarton

Plaintiffs next claim that the evaluations of their consultants were not considered. Other than the fact that the IFSP formulated for N.G. provided for approximately two-thirds of the treatment hours recommended by plaintiffs' evaluators and provided for less parent training and less frequent team meetings, there is no evidence to support this claim. Ms. Arias testified that she considered the evaluations of Drs. Lucas and McCarton other than the frequencies for services , which she indicated she was not permitted to consider.*fn74 Plaintiffs offer no evidence contradicting this testimony. Ms. Arias' disregard of the specific hours recommended by Drs. Lucas and McCarton was consistent with the applicable New York State regulations, which instruct evaluators to avoid recommending specific levels of service.*fn75

The Court is mindful of the fact that direct evidence of mental processes -- such as the consideration given to a specific report or document -- almost never is available and that N.G.'s parents have no way of looking into Ms. Arias' mind. Nevertheless, as the parties bearing the burden of proof, it was incumbent upon N.G.'s parents to offer some evidence to support their contention.*fn76 "The fact that the [defendants] ultimately disagreed with the opinions of plaintiffs and their outside professionals does not mean that plaintiffs were denied the opportunity to participate in the development of the [IFSP], or that the outcome[] of the . . . meeting[] [was] pre-determined."*fn77

C. Alleged Denial of Meaningful Participation in the Meeting

Plaintiffs' third alleged procedural error fails for much the same reason -- other than their disagreement with the IFSP that was ultimately adopted, they offered no evidence that their comments were disregarded. To the extent objective evidence exists, it establishes the contrary. At least one element of the IFSP -- an evaluation of N.G. for physical therapy -- was added as a result of the comments of N.G.'s mother.*fn78

The ALJ's findings of fact concerning the meeting sharply contradict plaintiffs' contention that they were denied meaningful participation.

"On or about November 13, 2006 an IFSP meeting was held. (Ex. C). Just prior to the start of the IFSP meeting a copy of 'NG's' Independent Report was provided to Evelyn Arias [Early Intervention Official Designee]. (Tr. 346, 348, 900, 1001-2). The IFSP meeting lasted an hour or more, and the required participants were present and had a copy of the Respondent's Evaluation Report. (PHL Section 2545; Tr. 361, 367-69, 901-02). The Petitioners were the only people at the meeting who had personal knowledge about 'NG,' and they described their child and his development, and discussed goals and objectives for "NG" with those participating in the IFSP meeting. (Tr. 367-72, 901, 1003). The meeting participants talked about and considered the substance of the Respondent's Report and the Independent Report. (Tr. 367-72, 377, 880, 901, 1006-7, 1283-85). The Respondent's Report and the Independent Report identified similar issues and types of services for 'NG' including: twelve month home based program, ABA Therapy, Speech and Language Therapy, Occupational Therapy, Parent/Family Training and Team Meetings. (Ex. G, Ex. H & Ex. J; Tr. 369-71, 985-991, 1004, 1284, 1292, 1296, 1709-10). At the conclusion of the IFSP meeting, a determination was made about the type, level and frequency of developmental services appropriate for "NG" and this was documented in the IFSP, and NG was also referred for a physical therapy evaluation. (Ex. C; Tr. 320, 361, 367-8)."*fn79

Giving these findings the "due weight" to which they are entitled,*fn80 and mindful of the fact that plaintiffs bear the burden of proof, plaintiffs' unsupported belief that their statements were not considered*fn81 is insufficient to sustain their burden of proof.

D. Absence of an Evaluation of N.G.'s Gross Motor Skills and a Functional Behavioral Analysis Prior to the Meeting

Plaintiffs next assert that the IFSP was defective because no evaluation of N.G.'s gross motor skills and no functional behavioral analysis*fn82 were performed prior to the IFSP meeting.*fn83 Plaintiffs do not explain why these evaluations were necessary or appropriate except to cite a general statement from a Theracare representative that the absence of a functional behavioral analysis could result in an inappropriate plan.*fn84 Plaintiffs cite no evidence that the absence of such analyses here actually had an adverse effect on the IFSP nor do plaintiffs cite any regulation or statute suggesting that such analyses are essential to evaluating an autistic child. Plaintiffs did not adduce any testimony from their expert -- Dr. McCarton -- suggesting that an evaluation of gross motor skills or a functional behavior analysis were essential to a valid evaluation.

With respect to the need for an evaluation of N.G.'s gross motor skills, plaintiffs overlook their own evidence. Dr. McCarton's evaluation addressed N.G.'s gross motor skills and noted that they were "close to age level."*fn85 Thus, evidence of N.G.'s gross motor skills was presented at the IFSP meeting and that evidence indicated that those skills were "close" to normal.*fn86

With respect to the need for a functional behavioral analysis, Theracare's supervisor of ABA therapy and education testified that a functional behavioral analysis could have been undertaken at the start of N.G.'s ABA therapy had Theracare been permitted to undertake such therapy.*fn87 Since Theracare never actually provided ABA therapy to N.G., the analysis was never performed.

Given the evidence that a functional behavioral analysis could have been performed had the Early Intervention Program's provider of ABA therapy been allowed to start that course of treatment, and the lack of evidence that the omission of any such analysis had an adverse effect on the IFSP, any error concerning the functional behavioral analysis was harmless. Thus, even if the Court were to assume that the failure to perform such an analysis would have constituted a procedural error, the error would have been harmless.

E. Inability to Ask Leading Questions and Prohibition of Rebuttal Evidence

The last two procedural issues relate to the conduct of proceedings before the ALJ rather than the conduct of the IFSP meeting.

Plaintiffs object first to the ALJ's sustaining an objection to a leading question posed by plaintiffs' counsel during his cross-examination of one of defendant's witnesses, Prashil H. Govind, M.D., the medical director of New York City's Early Intervention Program.*fn88

"Q: Do you think, do you think before coming up to the IFSP, it would have been, would have been important for you that everyone at the meeting have an opportunity to look at all the evaluations and give them due consideration?

"A: I think that's part of the IFSP process.

"Q: Has anybody ever told you that there's been some evidence at this hearing that decisions were made by some members of the early intervention staff who did not -- either did not consider or not share certain reports at NG's IFSP with other team members before the IFSP was generated?

"MS. CLEMONS: Objection. "Misstatement and mischaracterization of the testimony.

"JUDGE O'BRIEN: Ask the witness -- sustained. Ask the witness what he knows about the information available at the IFSP meeting.

"MR. MAYERSON: Can I rephrase it in a different way?

"JUDGE O'BRIEN: You cannot rephrase it by testifying or feeding the witness a yes/no answer. Ask him what he knows about what reports were available at the IFSP meeting.

"MR. MAYERSON: Judge, can I just be heard on this issue for one moment? I beg you to let me make my -

"JUDGE O'BRIEN: Move on.

"MR. MAYERSON: On cross examination? I can't do this on cross?

"JUDGE O'BRIEN: You have been given a lot of latitude here. Ask him what he knows. Don't tell him what he knows.

"MR. MAYERSON: I believe I'm entitled to lead on cross examination, with all due respect.

"JUDGE O'BRIEN: I'm directing you what to do.

"MR. MAYERSON: Okay. I'll do it.

"BY MR. MAYERSON: "Q What were you told about the sharing of reports at NG's IFSP, if anything?

"A: I was not told anything about it."*fn89

To the extent the ALJ was prohibiting plaintiffs' counsel from asking leading questions on cross-examination, she appears to have erred. Nevertheless, given the question and answer that followed the colloquy, any error was harmless. Dr. Govind did not know who saw what reports at N.G.'s IFSP meeting. In addition, given that Dr. Govind did not attend the meeting, his belief as to who saw what was of little consequence in light of the fact that the record contained testimony from three of the four attendees at the meeting.

Plaintiffs' second claim of error concerning the hearing arises out of plaintiffs' attempt to offer rebuttal evidence after the testimony of Nichole Aiello, the Early Intervention Staffing Coordinator at Theracare. During Ms. Aiello's testimony, defendant offered a document purporting to be a log reflecting telephone calls between Theracare and N.G.'s mother concerning the availability of N.G. to commence therapy between November 14 and November 28, 2006. The gist of defendant's testimony was that there was a two-week delay in starting N.G.'s speech therapy due to his family's pre-existing vacation plans. Plaintiffs claim that the ALJ improperly precluded them from calling N.G.'s mother to rebut this evidence.

The availability or unavailability of N.G. for treatment between November 14 and November 28, 2008 played no part in the ALJ's decision and plays no part in this Court's decision. Again, if there was any error in precluding the rebuttal evidence, it was harmless.

Plaintiffs seek also to use these two instances of alleged error to suggest that the ALJ was biased. The transcript of the hearing belies this claim. The ALJ afforded plaintiffs considerable leeway at the hearing. In order to be entitled to any remedy, plaintiffs had to establish that defendant's IFSP was inadequate, i.e., not reasonably calculated to confer any benefit on N.G. As explained in the following section, both defendant's and plaintiffs' witnesses confirmed that defendant's IFSP would have benefitted N.G. Only one witness -- Dr. Clark --testified to the contrary and she later recanted that testimony. Despite the failure of plaintiffs' proof, the ALJ allowed them to call nine witnesses whose testimony frequently was far afield from the core issue. For example, there was substantial testimony concerning N.G.'s progress and treatment pursuant to the program his parents had instituted. However, in the absence of a showing that the IFSP was inadequate, the benefits of the program his parents had formulated were immaterial. The ALJ was exceptionally patient throughout this testimony and went to great lengths to accommodate both counsel with respect to the scheduling of additional hearing days. Given the entirety of the testimony, plaintiffs have established, at most, two isolated and harmless errors in the course of an 1,800 page transcript relating to factual issues that played no part in the ALJ's decision. Plaintiffs' attempt to transform these inconsequential errors into a claim of bias is frivolous.*fn90

III. Substantive Adequacy of the IFSP

Plaintiffs challenge also the adequacy of the IFSP. As explained above, an IFSP is adequate in the context of the IDEA if it is reasonably calculated to provide some non-trivial educational benefit. It need not maximize the recipient's potential nor need it be the best program possible.*fn91

Defendant called three witnesses, each of whom confirmed that the treatment plan in the IFSP would benefit N.G.

Cheryl Dombrowski, Theracare's ABA and Educational Supervisor, testified that the treatment plan set forth in the IFSP was an appropriate starting point for N.G.'s treatment and that the plan was adequate.*fn92 Ms. Dombrowski holds a master's degree in early childhood and special education from NYU.*fn93

Jeanette Gong, the director of the Manhattan Regional Office of New York City's Early Intervention program testified that the treatment plan set forth in the IFSP would provide benefits to N.G.*fn94 Dr. Gong holds two master's degrees, one in psychology and one in philosophy, and a Ph.D. in experimental psychology, with emphasis on cognition and development from the City University of New York.*fn95

Prashil M. Govind, M.D., the medical director of New York City's Early Intervention Program, testified that the IFSP treatment plan would provide educational benefits to N.G.*fn96 Dr. Govind's subspecialty is behavioral pediatrics.*fn97

In addition, every witness who was called by plaintiffs and who was asked about the treatment plan set forth in the IFSP confirmed that it would provide some benefit to N.G.

Tamar Frankel, an ABA therapist hired by N.G.'s parents who holds a master's degree in special education and applied behavior analysis from Columbia University, testified that forty hours of ABA therapy is not essential for progress, that some experts believe fifteen to twenty hours of ABA therapy is an appropriate level and that even a program of ABA therapy that did not provide for weekend hours would benefit N.G.*fn98

Dr. Deborah Clark, who holds a Ph.D. in cognitive psychology from Columbia University and who was hired by N.G.'s parents to oversee N.G.'s treatment, initially testified that at least forty hours of ABA therapy per week was essential for N.G. to make progress.*fn99

However, on cross-examination she recanted that testimony and admitted that twenty hours per week of ABA therapy would provide some benefit to N.G.:

"Q: In other words, if he had had 20 hours of ABA, you're testifying that in your clinical opinion there would have been no effect at all from that 20 hours?

"A: No, that is not what I am saying whatsoever. I think he would have had remarkably and rather dramatically less gains had he only had 20 hours. And if you just go back to the research, every single research study, outcome research, long-term research, follow-up research, is based on the idea of intensive, as close to 40 hours as you can get."*fn100

Finally, Dr. Cecelia McCarton testified that N.G. would make some progress with the levels of treatment provided in the IFSP.*fn101 She holds an M.D. degree from Albert Einstein College of Medicine and is a developmental pediatrician.*fn102 She also heads the McCarton School and operates the McCarton Center which specialize in the education and treatment of children with autism.*fn103

Although plaintiffs' witnesses all believed that twenty hours of ABA therapy per week would neither be the optimal treatment level for N.G. nor maximize his development and that more hours were desirable, none testified that twenty hours of ABA therapy per week would provide no or only trivial benefit. In fact, other than Dr. Clark, who recanted her testimony on cross-examination, no witness testified that twenty hours of ABA therapy per week would provide no benefit or only trivial benefit to N.G.

Conclusion

As the ALJ noted in her decision, the record in this case clearly and unmistakably shows that plaintiffs are loving and dedicated parents who are striving to provide the best therapy possible for their son. However, the IDEA simply does not require states to provide this level of therapy. Plaintiffs have not shown any material procedural error in the state administrative proceedings. Nor have they shown that the program of therapy set forth in the IFSP will provide no benefit or only trivial benefit. Thus, the Court concludes that the ALJ's decision must be affirmed.

Accordingly, defendants motion for summary judgment dismissing the complaint [Docket Item 34] is granted in all respects. Plaintiffs' motion [Docket Item 31] is denied in all respects. The clerk shall close the case.

SO ORDERED.


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