Still v. DeBuono

• Decision Date: 05 December 1996
• Docket Number: D,No. 732,732
• Citation: 101 F.3d 888
• Court: U.S. Court of Appeals — Second Circuit
• Parties: 114 Ed. Law Rep. 743, 19 A.D.D. 930 Dan STILL, Acting Commissioner of the New York City Dept. of Mental Health, Mental Retardation and Alcoholism Services; the New York City Dept. of Mental Health, Mental Retardation, & Alcoholism Services; the City of New York, Petitioners-Appellants, v. Barbara A. DeBUONO, as Commissioner of the New York State Dept. of Health; The New York State Dept. of Mental Health; Mr. " ", on behalf of "E.M.", an infant, Respondents-Appellees. ocket 96-7753.

Page 888

101 F.3d 888

114 Ed. Law Rep. 743, 19 A.D.D. 930

Dan STILL, Acting Commissioner of the New York City Dept. of Mental Health, Mental Retardation and Alcoholism Services the New York City Dept. of Mental Health, Mental Retardation, & Alcoholism Services; the City of New York Petitioners-Appellants, v. Barbara A. DeBUONO, as Commissioner of the New York State Dept. of Health; The New York State Dept. of Mental Health; Mr. " ", on behalf of "E.M.", an infant Respondents-Appellees.

No. 732, Docket 96-7753.

United States Court of Appeals Second Circuit.

Argued Sept. 25, 1996.

Decided Dec. 5, 1996.

Joseph I. Lauer, New York City (Paul A. Crotty, Francis F. Caputo and Elizabeth A. Wright, Corporation Counsel of the City of New York, on the brief), for Petitioners-Appellants.

Steven S. Anderson, New York City (Donna R. Shahrabani, Anderson & Rottenberg, on the brief), for Respondent-Appellee Mr. " ".

Kay-Ann D. Porter, Assistant Attorney General, State of New York, New York City (Dennis C. Vacco, Attorney General of the State of New York, Thomas R. Sofield, Assistant Attorney General, State of New York, of counsel), for Respondent-Appellee DeBuono and the New York State Department of Health.

Before: WALKER, JACOBS, Circuit Judges, and CARMAN, Chief Judge United States Court of International Trade, sitting by designation. ^*

CARMAN, Chief Judge.

BACKGROUND

On February 22, 1992, Mrs. " " gave birth to her son "E.M.". Around the time of his second birthday, Mr. and Mrs. " " became increasingly concerned about "E.M." 's development. "E.M." 's ability to speak was very slow to develop and he had very little language comprehension. Based on these symptoms and concerns, Mrs. " " made arrangements to have "E.M." evaluated by a developmental pediatrician and other specialists affiliated with the New York City Early Intervention Program. "E.M." was examined on July 26 and 27, 1994 by a developmental pediatrician, a speech and language pathologist, and a psychologist at New York Hospital, Cornell Medical Center. Following their examination, the specialists diagnosed "E.M." as being afflicted with Developmental Delay and secondarily with Pervasive Developmental Disorder, more commonly known as autism. This diagnosis qualified "E.M." for early intervention services under New York law.

Following this diagnosis, an Individualized Family Service Plan (IFSP) was drafted to establish goals for "E.M." 's treatment and to specify how much and what types of treatment he would receive through the Early Intervention Program. During the preparation of "E.M." 's IFSP, Mrs. " " requested that "E.M." receive Applied Behavioral Analysis (ABA) as part of his treatment. Dr. Evelyn Lipper, a developmental pediatrician who examined "E.M." to determine his eligibility for early intervention services, recommended to Mr. and Mrs. " " that "E.M." receive ABA therapy. Mrs. " " 's request for ABA was not accommodated, however, because the New York City Early Intervention Program did not provide ABA therapy to autistic children under the age of three years old. Instead, "E.M." 's IFSP provided for five hours of treatment per week at the Child Development Center (CDC), a state-approved provider of early intervention services. The five hours of treatment consisted of social work in parent-child groups, special instruction in group and individual settings, and speech therapy.

Despite their inability to obtain ABA therapy through the DOMH's early intervention program, Mr. and Mrs. " " continued to be interested in providing "E.M." with those services. In September 1994, Mr. and Mrs. " " arranged and paid for "E.M." to receive in-home ABA therapy under the direction of Ms. Julie Fisher, a social worker who holds a Masters degree in social work from New York University. Ms. Fisher was responsible for designing the behavioral modification techniques used in "E.M." 's treatment, as well as training six college students and Mr. and Mrs. " " to provide ABA to "E.M.". The six students Ms. Fisher trained were not licensed, certified or registered professionals, nor were they designated as early intervention service providers by the State Commissioner of Health. Initially Ms. Fisher and the six college students provided "E.M." with approximately ten hours of ABA therapy per week, and by the Spring of 1995 "E.M." was receiving approximately twenty hours of treatment per week.

Based on the progress they believed "E.M." was making through ABA therapy, Mr. and Mrs. " " decided to stop sending "E.M." to CDC. Mr. and Mrs. " " withdrew "E.M." from CDC in late January or early February 1995, and his IFSP subsequently was modified to discontinue services from CDC and to provide for individual speech and language therapy at Lennox Hill Hospital.

On March 31, 1995, Mr. " " requested an impartial administrative hearing seeking reimbursement for his expenses in providing "E.M." with in-home ABA therapy. Although the New York City DOMH agreed during the impartial hearing before State Department of Health Administrative Law Judge Zylberberg to reimburse Mr. " " for the services provided by Ms. Fisher, it continued to contest Mr. " " 's claim for reimbursement of costs incurred in hiring the six uncertified students to provide ABA to "E.M.".

Administrative Law Judge Zylberberg issued a Determination and Order on August 15, 1995, finding substantial evidence established "E.M." 's IFSP was not appropriate and did not meet his developmental needs. Judge Zylberberg noted there was agreement at an August 1994 IFSP meeting that "E.M." should receive ABA therapy. Judge Zylberberg also noted the DOMH conceded "E.M." 's IFSP was not appropriate and that the DOMH had agreed previously to reimburse Mr. " " for the ABA services provided to "E.M." by Ms. Fisher.

Judge Zylberberg's order also found "E.M." 's progress was substantially attributable to the ABA therapy. Based on the report of a physician who evaluated "E.M.", as well as his conclusion that ABA is consistent with the legislative goals of the Early Intervention Program, Judge Zylberberg found the in-home ABA services were appropriate treatment for "E.M.".

Finally, Judge Zylberberg found none of the six students providing therapy to "E.M." met the statute's definition of a "qualified" provider. Nonetheless, Judge Zylberberg ordered the DOMH to reimburse Mr. " " for his expenses in compensating the students, opining the students would have been certified as "qualified" providers had they applied to the Early Intervention Program.

On December 14, 1995, the DOMH filed a petition with the New York Supreme Court, pursuant to Article 78 of the Civil Practice Laws and Rules of New York and N.Y. Pub. Health Law § 2549(7), challenging the Determination and Order issued by Judge Zylberberg. Appellants challenged only the portion of Judge Zylberberg's order that required the DOMH to reimburse Mr. " " 's expenditures incurred in hiring uncertified students to provide ABA services to "E.M.".

Mr. " " filed a Notice of Removal to the United States District Court for the Southern District of New York on January 11, 1996, on the grounds that the claim arose under federal law. Mr. " " subsequently moved to dismiss the petition pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted. ¹

On June 10, 1996, Judge Motley entered a final judgment granting Mr. " " 's motion to dismiss the petition and denying petitioner's motion to remand to the New York Supreme Court. ² On June 19, 1996, appellants filed a Notice of Appeal challenging the District Court's dismissal of its claim for failure to state a claim upon which relief may be granted and its failure to remand the case to the New York Supreme Court.

This case presents the question of whether, upon the state's failure to provide disabled infants or toddlers appropriate services under part H of the Individuals with Disabilities Education Act, due to a shortage of providers who have been licensed or certified by the state, parental procurement of services otherwise appropriate under part H is reimbursable notwithstanding the providers' lack of state certification.

DISCUSSION

This Court reviews the grant of a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) de novo. See Grimes v. Ohio Edison Co., 992 F.2d 455, 456 (2d Cir.1993). Our review must accept the allegations contained in the petition as true, and draw all reasonable inferences in favor of the non-movant. See Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir.1991). Dismissal is appropriate only where " 'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' " Id. (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)).

The Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-85 (1994), establishes the standards states must meet in providing education services to disabled infants and children in order to receive financial assistance from the federal government. Part H of the IDEA requires states to provide "appropriate early intervention services to all infants and toddlers with disabilities and their families." 20 U.S.C. § 1476(a) (1994). The statute defines "infants and toddlers with disabilities" as "individuals from birth to age 2, inclusive." 20 U.S.C. § 1472(1) (1994). Similarly, states must provide "a free appropriate public education" to disabled individuals between the ages of three and twenty-one years old to be eligible to receive federal funds under part B of the IDEA. 20 U.S.C. § 1412(1), (2)(B) (1994).

Two decisions by the United States Supreme Court have interpreted language in the Education of the Handicapped Act, the IDEA's precursor, as well as part B of the IDEA to grant reviewing courts the authority to order reimbursement of expenditures made by parents to obtain appropriate educational...