"Bd" v. Debuono, 98 Civ. 0910(CM) (MDF).
| Decision Date | 15 January 2000 |
| Docket Number | No. 98 Civ. 0910(CM) (MDF).,No. 99 CIV. 10596(CM) (MDF).,No. 98 Civ. 0972(CM) (MDF).,No. 99 CIV. 10597(CM) (MDF).,98 Civ. 0910(CM) (MDF).,98 Civ. 0972(CM) (MDF).,99 CIV. 10596(CM) (MDF).,99 CIV. 10597(CM) (MDF). |
| Parties | "BD" et al., Plaintiffs, v. Barbara A. DEBUONO, et al., Defendants. "MM," et al., Plaintiffs, v. Susanne D. Kaplan, et al., Defendants. "EE" et al., Plaintiffs, v. Barbara A. DeBuono, et al., Defendants. "PP" et al., Plaintiffs, v. Susanne D. Kaplan, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Denise T. DiPersio, Stuart M. Grant, Jay W. Eisenhofer, Grant & Eisenhofer, P.A., Wilmington, DE, Majorie E. Berman, Krantz & Berman, LLP, New York City, Michelle Rago, Lowey, Dannenberg, Bemporad & Selinger, P.C., White Plains, NY, Mark J. Krum, Mary J. Krum, Philadelphia, PA, for BD, DD, AA, JJ and LL, Jeanette Collins, Jean Doe, Jane Doe, Jane Roe, MM, EE, PP and SS.
Thomas R. Scofield, Office of Atty. General, New York City, for Barbara A. DeBuono, George Diferdinando, Geraldine Bunn, Donna Noyes.
Kyle C. McGovern, Westchester county Attorney's Office, Alan D. Scheinkman, County Atty., White Plains, NY, for Susanne D. Kaplan, Patsy Yang-Lewis, Harold N. Adel, M.D., Westchester County Dept. of Health.
Jeffrey S. Dantowitz, Corp. Counsel of City of N.Y., New York City, for New York City Dept. of Mental Health, Mental Retardation and Alcoholism Services, City of New York.
Plaintiffs are suing Westchester County, the Westchester County Department of Health ("WCDOH") and certain of its ranking officials — Mark Rapoport, M.D. ("Rapoport"), Harold Adel, M.D. ("Adel"), Patsy Yang-Lewis ("Yang-Lewis") and Susanne D. Kaplan ("Kaplan") (collectively, the "County Defendants") — under Section 1983 of the Civil Rights Act, 42 U.S.C. § 1983, for violations of due process rights guaranteed to Plaintiffs by virtue of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1431 et seq., the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 794 et seq., and the New York Public Health Law, § 2540 et seq. (collectively, "the Acts"), and the Fifth and Fourteenth Amendments to the United States Constitution; and for violations of the Rehabilitation Act's prohibition against discrimination in federally funded programs. Specifically, Plaintiffs allege that County Defendants unlawfully implemented policies to prevent, discourage and limit the use of 1:1 Applied Behavior Analysis Therapy ("ABA Therapy") in the treatment of autistic/PDD children, and that through those policies, plaintiffs BB, DD, MM, EE, SS, and PP and their families were deprived of appropriate ABA therapy and suffered injury as a result. Plaintiffs seek a declaration that the acts of the County Defendants were unlawful and violated the Constitution, IDEA and the Rehabilitation Act. Plaintiffs also seek compensatory and punitive damages, costs and attorneys' fees.
On August 5, 2000, plaintiffs moved for summary judgement on the merits of the Section 1983 and Rehabilitation Act claims. On August 7, 2000, defendants cross-moved for summary judgment on a number of threshold issues, including statute of limitations, failure to exhaust administrative remedies, and mootness, and on the merits of the Section 1983 and Rehabilitation Act claims.
For the reasons stated below, I:(1) deny the motion to dismiss plaintiffs' § 1983 and Rehabilitation Act claims on statute of limitations grounds; (2) deny the motion to dismiss plaintiffs' § 1983 and Rehabilitation Act claims on exhaustion grounds; (3) deny the motion to dismiss plaintiffs' claims for declaratory relief under § 1983; (4) grant defendants' motion to dismiss the § 1983 claims of MM, DD and their parents; (3) grant defendants' motion to dismiss plaintiffs' § 1983 damages claims as to Adel and Rapoport and deny the motion as to Kaplan and Yang-Lewis; (4) grant defendants' motion to dismiss plaintiffs' Rehabilitation Act claims against all individual defendants Kaplan, Yang-Lewis, Adel, and Rapoport; (5) deny the motions for summary judgment on plaintiffs' remaining § 1983 and Rehabilitation Act claims.
Plaintiffs BD, DD, MM, EE, PP and SS are children diagnosed with autism or pervasive developmental disorder ("PDD"), and plaintiffs Jean Doe, Jane Doe, Gary S. Mayerson. ("Mayerson"), Kit Weintraub ("Weintraub") and June Duessel (PP and SS) ("Duessel") are their respective parents.1 During the period from 1993 through 1996, plaintiff children were enrolled in Westchester County's Early Intervention Program ("EIP"), which offers services to infants (ages birth to approximately three years old) with disabilities. Under this program, each child received a different "package" of services, which I describe below. These services were provided to the children under the requirements of IDEA and the New York Public Health Law.
The IDEA was enacted to ensure that all children with disabilities have available to them a "free appropriate public education" (FAPE). 20 USC § 1400(d)(1)(A).2 Under this Act, federal funds are provided to the states conditioned upon the provision of early intervention services to developmentally disabled infants and toddlers, i.e. children from birth up to three years of age. 20 U.S.C. § 1431 et seq.
The IDEA defines "early intervention services" as developmental services which: (1) are provided at no cost (except where otherwise provided), (2) are designed to meet the developmental needs of an infant or toddler with a disability, (3) meet the standards of the; state, (4) are to be provided by qualified personnel, and (5) to the extent appropriate, are provided in natural environments (e.g., home, community settings). 20 U.S.C. § 1432(4)(B)-(G). As part of these early intervention services, the child must be provided with an individualized family service plan ("IFSP") with the parents' involvement. 20 U.S.C. § 1436(a)(3), (d)(8).
Pursuant to this mandate, New York State enacted § 2540 et seq. of the Public Health Law, which establishes an EIP for infants and toddlers.3 Every child eligible for early intervention services in New York is required to be evaluated; this evaluation includes an assessment of the unique needs of the child and the identification of services appropriate to meet those needs. N.Y.Pub. Health Law § 2544. Early intervention services are provided by the County, through its Department of Health.
Once a child is deemed eligible for early intervention services, New York Law requires that an Individualized Family Service Plan (IFSP) be created by the designated educational agency to offer services to each eligible child. The IFSP includes a statement of the specific early intervention services necessary to meet the unique needs of the child and the child's family. § 2545.
According to New York State Department of Health (N.Y.SDOH) regulations, providers of early intervention services must be certified by New York State. See Malkentzos v. DeBuono, 923 F.Supp. 505 (S.D.N.Y.), vacated on other grounds by 102 F.3d 50, (2d Cir.1996). In 1993, when Westchester County's Early Intervention program began, New York State did not provide guidelines describing what early intervention services are appropriate for infants with autism. The state had begun considering such guidelines by 1996.4 See id.
According to the Autism Society of America:
Autism is a complex developmental disability that typically appears during the first three years of life. The result of a neurological disorder that affects the functioning of the brain, autism and its associated behaviors have been estimated to occur in as many as 1 in 500 individuals. Autism impacts the normal development of the brain in the areas of social interaction and communication skills. Children and adults with autism typically have difficulties in verbal and non-verbal communication, social interactions, and leisure or play activities. The disorder makes it hard for them to communicate with others and relate to the outside world. In some cases, aggressive and/or self-injurious behavior may be present. Persons with autism may exhibit repeated body movements (hand flapping, rocking), unusual responses to people or attachments to objects and resistance to changes in routines. Individuals may also experience sensitivities in the five senses of sight, hearing, touch, smell, and taste.
Autism Society of America Homepage,
Autism is a disability within the meaning of the IDEA, thereby entitling children diagnosed with autism and PDD to the special services and education provided by this statute. 20 U.S.C. §§ 1401(1)(1)(A), (B); 1472(1).
ABA therapy instructs autistic/PDD children how to play, interact and perform basic skills by teaching small, measurable units of behavior systematically one-on-one with the child and a therapist/instructor. (8/5/00 DiPersio Decl. at Exh. 1 at 4; Exh. 2 at 3-4.)
Plaintiffs' expert Dr. Richard M. Foxx, Ph.D, in describing the goals of the therapy, has written that it "seeks to construct socially and educationally useful repertoires and decrease or reduce problem behaviors through the use of specific, carefully programmed environmental interventions." (Id.) The child is taught tasks in small steps through various methods, including reinforcement, shaping, fading, prompting, and maintenance strategies. Each child's program is unique, and the repertoires are repeated many times. Under this program the child should ultimately move from one-to-one instruction to small and then larger groups of children. (Id.)
Plaintiffs claim that, as early as 1985, there was...
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