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A.G. v. Frieden

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 ...


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