Opinion
4725-05.
Decided June 5, 2008.
Powers Santola, LLP, Attorneys for Plaintiffs, (Laura M. Jordan, of counsel), Albany, NY.
Petrone Petrone, P.C., Attorneys for Defendants Birth Beyond Midwifery, Practice of Oneonta, PLLC, Lucia Jenkusky and Kristeena Kingsley, (Soo-Young Chang, of counsel), Buffalo, NY.
Maynard, O'Connor, Smith Catalinotto, LLP, Attorneys for Defendants Albany Medical Center Hospital, Albany Medical College and Scott Dexter, M.D., (Stephen Prudente, of counsel), Albany NY.
Carter, Conboy, Case, Blackmore, Maloney Laird, P.C., Attorneys for Defendant William Baerthlein, M.D., (John T. Maloney, of counsel), Albany, New York.
Brown Tarantino, LLC, Attorneys for Bryan S. Evanczyk, M.D., Bryan S. Evanczyk, M.D., Inc., and Bryan S. Evanczyk, M.D., Inc. P.C., (Steven W. Kraus, of counsel), White Plains, New York.
Plaintiffs Kristi Foote and Tim Sheridan allege in their complaint that defendants' negligence in rendering medical and obstetrical care to Ms. Foote caused her "to be denied the opportunity to take the steps which would have terminated her pregnancy in 2003." On that basis, plaintiffs seek to be compensated for the extraordinary expenses associated with raising and caring for their severely disabled child.
Defendants now move for summary judgment on a variety of grounds, contending, inter alia, that they did not breach a duty of care owed to plaintiffs and, in any event, plaintiffs cannot establish any resulting pecuniary losses with reasonable certainty. In making the latter argument, defendants assert that the extraordinary expenses associated with raising plaintiffs' disabled child are, and will continue to be, provided through various government programs to which the child is entitled, including the Individual with Disabilities Education Act ("Act") and the Home and Community Based Services waiver ("HCBS Waiver") program. Plaintiffs oppose the motion on both factual and legal grounds.
BACKGROUND
Plaintiff Kristi Foote ("the mother" or "plaintiff") gave birth to Quinton George Sheridan ("the child") on August 19, 2003. Co-plaintiff Tim Sheridan is the child's father. The child was born with and suffers from Joubert Syndrome, a condition characterized by defects in the brain that cause severe developmental and behavioral disabilities.
Plaintiff learned she was pregnant in December 2002. In January 2003, she began prenatal care with defendant Birth Beyond Midwifery Practice of Oneonta, PLLC ("Birth Beyond"). While a patient, she allegedly was treated by defendant Lucia Jenkusky and others.
Plaintiff also was referred to defendant William Baerthlein, M.D., a doctor of obstetrics and gynecology, due to the potential impact of Ms. Foote's medical history and prescription medication on the fetus. Plaintiff's first visit with Dr. Baerthlein was on February 14, 2003. On that date, Dr. Baerthlein recommended and ordered that plaintiff obtain a Level II ultrasound when the fetus was between 16 and 18 weeks gestation and then return for a follow-up visit two weeks thereafter. The ultrasound took place at defendant Albany Medical Center on February 26, 2003, at a time when the fetus was slightly less than 14 weeks gestation.
The ultrasound was performed by defendant Scott Dexter, M.D. In a two-page report, Dr. Dexter noted that the fetus had a "physiological cerebellar vermis defect noted consistent with gestational age." Dr. Dexter's report further indicated that a "follow-up sonogram [was] recommended in 4 weeks to reassess fetal anatomy." Plaintiff alleges that she was never told of Dr. Dexter's findings or his recommendation for a follow-up sonogram.
At some point between February 26, 2003 and March 11, 2003, Dr. Dexter's report was received by Dr. Baerthlein. On March 11, 2003, Dr. Baerthlein allegedly sent a copy of the report to Birth Beyond. Plaintiff was not provided a copy.
On March 20, 2003, plaintiff transferred her care from Birth Beyond to Women's Health at FoxCare ("FoxCare"), the facility at which defendants Dr. Baerthlein and Dr. Evanczyk practiced. On or about March 24, 2003, plaintiff's chart and records were transferred to FoxCare. Plaintiff continued to treat at FoxCare, seeing Dr. Baerthlein on April 1, 2003, and Dr. Evanczyk on April 30, 2003 and again on May 22, 2003. According to plaintiff, at no time during this period was she provided with Dr. Dexter's report or informed of his recommendation for followup care.
Plaintiff ultimately had a second Level II ultrasound on July 7, 2003, again at Albany Medical Center. It was at that point that plaintiff was informed of the potential fetal brain abnormality. A fetal MRI was performed on July 15, 2003, which confirmed the brain anomaly first identified by Dr. Dexter on February 26, 2003.
Plaintiff's complaint alleges that had she been provided with evidence of this brain disorder earlier, she would have elected to terminate her pregnancy. However, by the time she was informed of the disorder more than 24 weeks from the commencement of her pregnancy she was denied that option.
Plaintiffs further allege that since the birth of the child in August 2003, they have been incurring, and will continue to incur, extraordinary expenses in caring for and raising a severely disabled child, including, but not limited to, physical therapy, vision therapy, occupational therapy, a home health aide, medical supplies, and surgical treatments.
DISCUSSION
Summary judgment is a drastic remedy and should only be granted if there are no material issues of disputed fact ( Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395). In evaluating a motion for summary judgment, a court should simply determine whether material issues of disputed fact preclude the grant of judgment as a matter of law ( S. J. Capelin Assoc. v. Globe Mfg Corp., 34 NY2d 338). The party moving for summary judgment has the initial burden of coming forward with admissible evidence to support the motion, so as to warrant the Court directing judgment in movant's favor; the burden then shifts to the opposing party to demonstrate, by admissible evidence, the existence of any factual issue requiring a trial of the action ( see Zuckerman v. City of New York, 49 NY2d 557).
New York law does not recognize a cause of action on behalf of an infant for "wrongful life" i.e., but for the negligence of a tortfeasor, the infant would not have been born ( see Becker v Schwartz, 46 NY2d 401). The Court of Appeals recognized two primary difficulties in such a claim. First, the Court was unable to conclude that such an infant has suffered a legally cognizable injury: "Whether it is better never to have been born at all than to have been born with even gross deficiencies is a mystery more properly to be left to the philosophers and the theologians" ( id. at 411). Second, the remedy afforded an injured party in tort is designed to place that party in the position that he or she would have occupied but for the alleged negligence, whereas a cause of action based on "wrongful life" must allege that "the infant's parents would have . . . terminated rather than to have carried the pregnancy to term, thereby depriving the infant plaintiff of his or her very existence" ( id. at 411-412).
However, the parents of such a child may maintain an action in their own right for "the increased financial obligation arising from the extraordinary medical treatment rendered the child during minority" ( Bani-Esraili v Lerman, 69 NY2d 807, 808; see Becker, supra, at 412-13). In such cases, plaintiffs may be compensated in the amount that represents their "legally cognizable injury, namely the increased financial obligation arising from the extraordinary medical treatment rendered the child during minority" ( Bani-Esraili, supra, at 808).
Thus, even if plaintiffs ultimately can establish that defendants' negligence in rendering medical and obstetrical care to Ms. Foote denied her the opportunity to take steps to terminate her pregnancy, plaintiffs also must demonstrate that they are subject to increased financial obligations arising from the extraordinary expenses associated with raising a severely disabled child.
Such "damages cannot be based on mere speculation, conjecture, or surmise and . . . must be necessitated by and causally connected to the child's condition" ( Mickens v. LaSala , 8 AD3d 453 , 454 [2d Dept 2004], lv denied 4 NY3d 705, citing DePeigne v Medical Ctr. Med. Health Research Assn. of NY City, 251 AD2d 47 [1st Dept 1998]; see also Schultz v. Harrison Radiator Div. Gen. Motors Corp., 90 NY2d 311, 321).
In support of their motion for summary judgment, defendants rely on the opinions of Daniel J. Silverman, M.D., who affirms in pertinent part:
3. In analyzing this matter, I have reviewed Quinton Foote Sheridan's Life Care Plan as prepared by Joseph Carfi, M.D., the infant's Individual Services Plan ("ISP") and Individual Educational Plans ("IEP") records, as well as the records of Springbrook, County of Chenango Department of Public Health, Norwich City School Districts, New York State Department of Health Office of Medicaid Management records and Quinton Foote Sheridan's medical records. My opinions are based upon the review of these materials and my medical background and training along with my experience as the Medical Director for the Center for the Disabled.
4. It is my opinion within a reasonable degree of medical certainty, that the services and expenses outlined in Dr. Carfi's report are covered under the New York State Early Intervention Program, the New York State Home and Community Based Services Waiver ("HCBS Waiver") and the Federal Government Individuals with Disabilities Education Act ("IDEA") and therefore, the services and expenses outlined in Dr. Carfi's report do not represent extraordinary expenses which have been incurred or will be incurred by plaintiffs in the future.
5. All of Quinton's services, therapies, treatment and special education are provided, free of charge to plaintiffs, through IDEA and the HCBS Waiver. IDEA mandates that Quinton, as a child with disabilities, receive the various treatment, therapies and special education at no extraordinary cost to plaintiffs. IDEA is a Federal statute and the community based HCBS Waiver program is an extension of these services on a local level.
6. In my practice with the Center for the Disabled, I have treated and managed the care of patients afflicted with degrees of disability similar to that of Quinton. Given the known conditions of Quinton, he will continue to be eligible for such benefits under IDEA and/or the HCBS Waiver for the remainder of his life. These benefits will cover his future medical, education and services needs for the rest of his life. There is no indication that plaintiffs will ever incur any extraordinary expense as associated with the medical needs of their son, Quinton.
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8. All of Quinton's medical treatment and therapy to date has been covered and paid for by the NYS DOH. . . . As such, plaintiffs have no out-of-pocket medical expenses for any of the services, therapies and treatment Quinton has ever received. Furthermore, these payments for Quinton's treatment, therapy and education will continue into the future and for the rest of Quinton's life.
9. Quinton receives care, treatment, educational and medical services as outlined in his ISP and IEP at a local level from the HCBS Waiver through the Office of Mental Retardation and Developmental Disabilities. The HCBS Waiver provides for individualized care coordination, intensive in-home service, respite care, family support services, crisis response services and skill building services.
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13. Specifically addressing plaintiffs' alleged proof of extraordinary expenses, plaintiffs have not and will not in the future, incur extraordinary expense in caring for and raising their child, Quinton. His medications have been and will continue to be covered by the state and local, Federally mandated benefits. . . . Further, any medical treatment, lab work, surgical procedure, occupational therapy, physical therapy and special education are covered by the HCBS Waiver program. . . . For example, Quinton's ISP from Springbrook, Inc. indicates money for clothing, food and shelter will be provided by the county, as well as child care, respite care and child support services. . . .
14. All of Quinton's therapy needs as outlined by Dr. Carfi's Life Care Plan are covered by these programs, including physical therapy, occupational therapy, speech therapy and vision therapy. . . . All necessary medical equipment is also provided to plaintiffs through the medical and therapy services. . . .
15. Regarding home care as called for in Dr. Carfi's Life Care Plan, one of the underlying goals and principles of the HCBS Waiver is to provide for such home-based services to children. As a consequence, all of Quinton's care in regard to necessary in-home services are covered under the program. If in-home care is no longer feasible for Quinton, a community based facility placement would also be covered under the program and there is no cost to plaintiffs for those services either.
(Silverman Aff. ¶¶ 3-9, 13-15)
In addition, defendants submit the affidavit of Jane D. Mattson, Ph.D, a certified life care planner, who avers, in pertinent part:
4. It is my opinion that plaintiffs will not incur any extraordinary expenses because their son's needs caused by his disability have been and will be met, for the most part, under free government programs. . . .
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10. Based upon my review . . . it is my opinion that Quinton Sheridan will be provided all of his necessary therapeutic and medical services under the IDEA, such that plaintiffs will not incur any "extraordinary expenses" as a result of Quinton's medical condition. In particular, all of Quinton's necessary therapies (including physical, occupational, speech/language, and vision) will be provided through the IDEA. In addition, the medical care detailed in Dr. Carfi's Life Care Plan, all of which falls under the category of "monitoring," will be covered under the IDEA. Similarly, the medical supply and equipment that Quinton will require, as well as the home equipment adaptations, will also be covered.
(Dandy Aff. Ex. Q).
In opposition to the motion, plaintiffs rely on the affirmation of Joseph Carfi, M.D., which provides, in pertinent part:
10. In June of 2007, I completed my physical medicine and rehabilitation report and life care plan with respect to Quinton Foote Sheridan, which provides for the services, medications, equipment, supplies and medical monitoring necessary to provide Quinton with optimal care to maximize his potential until he is 21 years of age.
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12. The life care plan details the increased financial obligations arising from the medically necessary extraordinary care and treatment that will need to be rendered to Quinton Foote Sheridan until his twenty-first birthday as a result of Quinton's significant developmental delays and behavioral dysfunction caused by Joubert Syndrome, a condition which Quinton was born with.
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14. All of the medical care, medications, lab work, medical supplies and equipment, home equipment adaptations, therapies and home/facility care set forth in my life care plan are medically necessary to ensure that Quinton receives optimal care until he reaches the age of 21 years old.
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16. As set forth by defendants' experts, Quinton is currently receiving some services through government programs.
17. When dealing with the needs of a disabled child such as Quinton, there can be marked difference between the services and treatments provided by the government and/or school system and those services and treatments which are medically necessary for the treatment of the child.
18. The directives and goals of the Federal and State Education laws only require that the state provide handicapped children with a basic floor of opportunity and not an educational program to maximize the potential of the child.
19. In contrast, with a disabled child such a [ sic] Quinton, the medical goal is to provide the child with maximum treatment and therapies for patient care so that the child receives optimal care to maximize his potential.
20. The items outlined in my life care plan for Quinton are medically necessary and intended to maximize his potential and, noticeably, are not the same minimum level of services required under the Federal or State Education Law or other government programs such as Medicaid, or reflective of what services Quinton is currently receiving.
21. For example, Quinton attends BOCES school on a daily basis where he receives physical, occupational, and speech/language therapies three times a week, as well as vision therapy once or twice in a month.
22. It is my medical opinion that the therapies Quinton is currently receiving in preschool are not sufficient to meet his needs. In my opinion, optimal care for Quinton requires that he receive physical therapy, occupational therapy, speech/language therapy and vision therapy five times per week until he reaches the age of 21 years old.
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24. It is imperative for the Court to understand that while Quinton is receiving some therapy and services through governmental programs and agencies, there is absolutely no guarantee that such statutory government programs, services, and therapies will be available to Quinton next year, or any other year between now and when he reaches the age of 21 years old. . . .
25. There is no guarantee that there will be any consistency or continuity in the school system or government programs providing Quinton with therapies and services designed to meet his individual needs over the next 17 years. . . .
26. Furthermore, the Federal Act (IDEA) does not require a state to maximize the potential of each handicapped child. Since the level of services required under the "IDEA" do not measure up to the medical and therapeutic needs of Quinton and his family as outlined in my life care plan, it cannot be stated that the Federal Act will satisfy all of the [ sic] Quinton's needs and all of plaintiffs' damages.
27. The "IDEA" was never intended to provide overall care and treatment for children between the ages of five and twenty-one. If this were true, there would be no need for Medicaid or Social Security benefits for people between the ages of five and twenty-one.
28. When it comes to government programs and services for disabled children such as Quinton, my experience has taught me and demonstrated that just because there is "coverage" for a particular service . . . does not ensure or guarantee that a necessary service, therapy or medical treatment will be provided to the individual. . . .
29. Based on my experience, what a disabled child receives in any particular year through their school district is determined by an annual Individual Educational Plan (IEP). The IEP is developed through the school appointing individuals to determine the educational needs of the child. The IEP is highly dependent upon the school districts resources in any given year.
30. Parents have to push to get even the minimum services laid out in their child's IEP. . . .
31. Even when certain services, therapies, equipment and medical treatments are approved by the government agency, the actual services . . . are very often not sufficient to meet the needs of the child to provide optimal care so ast to maximize the potential of the handicapped child.
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36. It is my opinion, to a reasonable degree of medical certainty, that the plaintiff's [ sic] will incur the [ sic] all of the expenses outlined in my life care plan, which are necessary extraordinary expenses that will be incurred by reason of raising Quinton, a child disabled by Joubert Syndrome, in order to provide Quinton with optimal care to maximize this potential, that such expenses are not guaranteed to be me under any government programs, and that Quinton is not guaranteed to received [ sic] the necessary services and items outlined in my life care plan through any governmental agency.
(Carfi Aff. ¶¶ 10, 12-14, 16-22, 24-31, 36)
While the Court cannot feel anything but sympathy for plaintiffs and their son, this motion presents only a narrow question of law: whether plaintiffs can establish that they are subject to extraordinary expenses including the cost of education, therapy and medical treatments necessitated by their son's disability. For the reasons that follow, the Court concludes that plaintiffs have not succeeded in raising a triable issue of fact with respect to this essential element of their cause of action.
In support of their motion seeking dismissal of the complaint, defendants rely on the affidavits of Dr. Silverman and Ms. Mattson, who aver that all of Quinton's medical treatment, therapy and educational needs have been provided free of charge pursuant to the New York State Early Intervention Program ("EI"), the HCBS Waiver program and the federal Individuals with Disabilities Education Act ("IDEA"). Further, defendants' experts opine that the child will remain eligible for services under the HCBS Waiver and IDEA programs at no charge or expense to plaintiffs throughout Quinton's minority. On that basis, both Dr. Silverman and Ms. Mattson conclude that plaintiffs have not borne extraordinary expenses in caring for their disabled child and will not face such expenses in the future.
Further, Dr. Silverman opines that all of the child's therapy needs outlined in the Life Care Plan prepared by plaintiffs' expert, Dr. Carfi including physical therapy, occupational therapy, speech therapy and vision therapy and necessary medical equipment are covered under the government programs available to Quinton. Further, Dr. Silverman notes that the home care called for in plaintiffs' Life Care Plan is consistent with the goals and principles of the HCBS Waiver program, which provides services and supports to children with disabilities so that they can reside in the community. Further, according to Dr. Silverman, if home care of the child becomes infeasible, placement in a community based facility would be covered under the government programs for which Quinton is eligible, again at no cost or expense to plaintiffs.
The Court concludes on the basis of these submissions, which demonstrate to a reasonable degree of professional certainty that plaintiffs have not and will not be subject to extraordinary expenses on account of Quinton's disability, that defendants have met their initial burden of establishing a prima facie entitlement to judgment as a matter of law.
In reaching this conclusion, the Court necessarily rejects plaintiffs' contention that they can recover the extraordinary expenses associated with raising their disabled son even where such expenses are funded through government programs to which Quinton has an individual entitlement. In Mickens v. LaSala, supra, the Second Department upheld the dismissal of a similar claim for extraordinary medical expenses on the ground that the child's needs were being
provided for at no cost, under government programs such as those available pursuant to the [IDEA]. Therefore the plaintiffs will not necessarily incur any increased financial obligations arising from extraordinary medical or educational treatment that [the child] has required or will require by reason of his disability.
( 8 AD3d at 455).
In this connection, the Court rejects plaintiffs' reliance on Mercado v. Institute for Urban Family Health ( 39 AD3d 409 [1st Dept 2007]). In concluding that the availability of Medicaid funding did not preclude a parent's suit to recover the extraordinary expenses of raising a disabled child, the First Department relied upon its earlier decision in Germosen v. Gupta, 237 AD2d 121 [1st Dept 1997]), in which it reasoned that the "care and support of a child remains the responsibility of the parent. Medicaid is merely a secondary means of providing necessary medical care, which is furnished by the State in loco parentis."
While the First Department's reasoning may be correct as applied to the traditional Medicaid program, the programs at issue here each reflect a policy decision on the part of government to assume primary responsibility for providing medical treatment, therapy, educational programming and other necessary care and treatment for severely disabled children such as Quinton. Thus, under the IDEA (and state implementing legislation), Quinton has an individual entitlement to a "free and appropriate public education . . . provided at public expense, . . . without charge" ( 20 USC § 1401 [a]; see also Mickens, 8 AD3d at 455). A "free and appropriate education" is defined broadly to include special education services tailored to the child's needs, as well as a vast array of "related services", including "developmental, corrective, and other supportive services (including speech-language pathology and audiology services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services . . . for diagnostic and evaluation purposes" ( 20 USC § 1401 [A]).
The Early Intervention program provides similar services to children under the age of three ( see Public Health Law art 25, title II-A) at no cost to children or their families ( id. § 2557).
Similarly, the HBCS Waiver program administered by the Office of Mental Retardation and Developmental Disabilities creates a direct entitlement on the part of Quinton to medical care necessitated by his disability, as well as the supports and services necessary to allow him to reside at home with his parents. Unlike the traditional Medicaid program, which looks to the income and resources of the parents in determining the financial eligibility of such a resident child, children with severe developmental disabilities, such as Quinton, are eligible for the HBCS Waiver in their own right, without regard to their parent's income, assets or other financial resources. Indeed, it is undisputed that Quinton's financial eligibility for the HBCS Waiver program is based solely on his own income and resources, thus evincing a clear intent to shield parents at all levels of income and assets from the extraordinary costs associated with raising a severely disabled child and to instead make such expenses a public charge in the first instance (except, of course, in the rare case where the child is exceptionally wealthy in his or her own right).
The issue of a child's financial eligibility for HBCS Waiver services without regard to parental income or resources was not briefed in any detail in the parties' motion papers. Accordingly, by letter dated April 21, 2008, the Court advised the parties of its preliminary conclusion on this point, which it based on two sources. First, the New York State Medicaid Reference Guide ("MRG"), published by the New York State Department of Health, states that the income and resources of a parent will not be considered in the eligibility of a certified disabled child who is "participating in one of the home and community-based waived programs provided pursuant to Section 1915(c) of the Social Security Act where the income/resources of the parents . . . are not considered in the determination of eligibility for the child"
Thus, based on the nature of the government programs at issue, the Court concludes that Mercado and Germonsen are readily distinguishable, and this case is controlled by the rule set forth in Mickens. Further, even if these authorities from outside this judicial department could not be reconciled, the Court would nonetheless conclude that the rationale of Mickens is more consistent with the policy considerations that led the Court of Appeals to narrowly circumscribe the cause of action at issue here. If plaintiffs cannot demonstrate that they have faced, or are reasonably certain to face in the future, extraordinary out-of-pocket expenses as a result of their legal obligation to raise and care for a severely disabled child, then they have not suffered a legally cognizable injury in their own right, and instead are asserting a claim for damages on behalf of the child a cause of action that squarely has been rejected by the Court of Appeals or attempting to exercise an unauthorized right of recovery on behalf of the governmental entities that fund the various programs to which Quinton has an individual entitlement.
Having concluded that defendants have met their initial burden in moving for summary judgment, the burden therefore shifts to plaintiffs to demonstrate a triable issue of fact with respect to the issue of pecuniary damages.
A close reading of Dr. Carfi's affirmation reveals that the only substantive difference between the programs and therapies already being provided to the child and Dr. Carfi's recommendations for "optimal care to maximize [the child's] potential" are an additional two days per week of physical, occupational, speech/language, and vision therapy through age 21.
Although Dr. Carfi contends that this "medically necessary" level of therapy goes beyond the minimum level of services required under the government programs relied upon by defendants, he offers no factual or legal basis for this conclusory assertion.
Further, nothing in the record demonstrates that plaintiffs ever sought and were denied "medically necessary" services through the aforementioned government programs or provides a non-speculative basis for concluding that such a medically necessary request for services would be rejected. Indeed, the record overall indicates that Ms. Foote has been active and involved in advocating on behalf of her child and ensuring that Quinton receives the vast array of medical treatments, therapies, special educational services, related services and supports necessitated by his disability.
In short, while Dr. Carfi opines that the child would benefit from a more intensive level of therapy, "he has failed to identify any programs [the child] might need which are not available at public expense, or how any comparable private programs might be superior for a child with [Quinton's] predicted abilities or disabilities." ( Mickens v LaSala, supra, 8 AD3d at 455).
Plaintiff's expert also opines that the therapies and services that Quinton receives through statutory government programs are not guaranteed to be available from year to year and that there is no guarantee of consistency or continuity in such programs. Further, Dr. Carfi asserts that even if the child has an entitlement under law to certain "covered" services, the child may nonetheless be denied such services. Further, he opines that the precise level of services that Quinton will receive is "highly dependent on the school districts resources in any given year."
The Court finds these arguments unavailing. Mere speculation that important and long-standing governmental programs that serve disabled children may be amended or repealed, or potentially misapplied from time to time by government actors, is an insufficient basis upon which to conclude that plaintiffs are reasonably certain to bear extraordinary expenses in the future ( see Caruso v LeFrois Bldrs., 217 AD2d 256, 258-260 [4th Dept 1995]). To hold otherwise would be "to base an award of monetary damages on mere speculation, conjecture, or surmise," which is not permissible ( Mickens v LaSala, supra, at 455).
Further, Dr. Carfi provides no support for his conclusory assertion that the level of services to be received by the child is "highly dependent on the school districts resources in any given year." To the contrary, a school district may not evade its IDEA obligations to a disabled child simply because of cost considerations. In developing a child's IEP, the committee on special education is required to consider four factors, none of which are cost-based: (1) academic achievement and learning characteristics; (2) social development; (3) physical development; and (4) managerial or behavioral needs ( 8 NYCRR § 200.1 [www] [3] [I]). Further, if the parents are dissatisfied with the IEP or any other aspect of their child's education, they are entitled to extensive procedural safeguards under both federal and state law.
Under the IDEA, the parents must be notified regarding any proposed change in a child's educational program ( 20 USC § 1415 [b] [1] [C]). If the parents are dissatisfied with an IEP, or anything related to the child's special education, they may file a complaint with the state educational agency ( id. [b] [1] [E]). Such complaints must be resolved at an "impartial due process hearing" ( id. [b] [2], [c]). Any party aggrieved by the outcome of the state administrative proceeding may bring an action in any state or federal court of competent jurisdiction ( id. [e] [2]).
While the Court does agree with Dr. Carfi that the IDEA does not provide for all of a disabled child's medical needs, the affidavit of Dr. Silverman demonstrates that the child is entitled to receive medical (and various other services) through the HCBS Waiver program. Notably, Dr. Carfi does not directly address Dr. Silverman's contention in his affirmation in opposition to the motion.
Dr. Carfi also opinions that there is a "marked difference" between the services provided through government programs and Quinton's medical needs. Again, Dr. Carfi offers no factual or legal support for this highly conclusory assertion.
While Dr. Carfi seeks to distinguish between the minimum level of services offered by government programs and his claimed objective of maximizing the child's potential, the Court sees no reason to delve into this distinction. Dr. Carfi contends that all of the services he recommends are "medically necessary", and the Court will therefore evaluate them on that basis.
Thus, as plaintiffs' have failed to establish the existence of a triable issues of fact with regard to extraordinary expenses, the complaint must be dismissed. Accordingly, the Court need not examine the other independent bases for relief put forward by defendants, including, of course, the asserted lack of negligence.
Accordingly, it is
ORDERED that defendants' motion for summary judgment is granted, and the complaint isdismissed.
This constitutes the Decision and Order of the Court. All papers including this Decision and Order are returned to counsel for Dr. Baerthlein. The signing of this Decision and Order shall not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of that Rule respecting filing, entry and Notice of Entry.
(http://www.health.state.ny.us/health_care/medicaid/reference/mrg/other-eligibility-requirements.pdf, at 424 ["updated: November 2007"] [accessed on April 21, 2008]). Second, a Local Commissioners Memorandum dated June 10, 1993 ("93 LCM-62"), which provides guidance to local social service districts on Medicaid eligibility and the waiver of parental deeming for participants in the HBCS waiver program, states as follows:Waiver of Parental Deeming. Section 1902 (a)(10)(c)(i)(III) of the Social Security Act waives institutional deeming rules when determining Medical Assistance (MA) eligibility for individuals under the age of 18 participating in the HCBS Waiver. That means that MA can be provided to eligible HCBS waiver participants without regard to parental income and resources. When determining eligibility for children who are certified to be blind or disabled under the age of 18 years, districts must disregard parental income and resources and apply only the child's income and resources to the MA level of one.
(http://www.ocfs.state.ny.us/main/policies/external/1993/LCMs/93-LCM-062 The Home and Community Based Services Waive (HCBS).pdf, at 1 [accessed on April 21, 2008]). The Court invited supplemental briefing on these issues, but no party responded within the three-week timeframe set forth in the Court's letter.