United States District Court, D. Minnesota
Michael A. Fondungallah, Esq., Fondungallah & Kigham, LLC, St. Paul, MN, on behalf of Plaintiff.
John M. Mulligan, Esq., Mulligan & Bjornnes, PLLP, Minneapolis, MN, on behalf of Defendant.
MEMORANDUM OPINION AND ORDER
ANN D. MONTGOMERY, District Judge.
On October 14, 2014, the undersigned United States District Judge heard oral argument on Defendant Lovaas Institute for the Early Intervention Midwest's ("Lovaas") Motion for Summary Judgment [Docket No. 33] and on Plaintiff's Motion to Strike the Affidavits of Dr. Eric Larsson and John Mulligan [Docket No. 52] submitted in support of Defendant's Reply Memorandum [Docket No. 47]. Plaintiff Idil Abdull ("Abdull") alleges Lovaas discriminated against her and her son on the basis of race and national origin.
For the reasons set forth below, Defendant's Motion for Summary Judgment is granted and Plaintiff's Motion to Strike the Affidavits of Dr. Eric Larsson and John Mulligan is denied as moot.
Abdull is a Somali-American whose son, A.A., was diagnosed with an autistic disorder. Abdull Aff. [Docket No. 42] ¶ 1. A.A. received treatment for his autism through Lovaas for 21 months, from May 2008 to February 2010. Larsson Aff. [Docket No. 36] ¶¶ 24, 57.
Abdull alleges that Lovaas discriminated against both her and her son on the basis of their race and national origin. Abdull claims Lovaas prematurely discharged A.A. from the program after only six months, despite its policy that a child has two consecutive six-month periods to make sufficient progress to remain in the program. Abdull contends Lovaas refused to treat A.A. because he was older than six years of age even though Caucasian children older than six were in the program. Abdull also alleges discrete acts of discrimination including that (1) Lovaas failed to teach the same material to A.A. that it taught to Caucasian children; (2) Lovaas reassigned the staff working with A.A. more frequently than it did for Caucasian children; (3) Lovaas intentionally reduced the number of hours of therapy provided to A.A. during the summer of 2009; and (4) Lovaas subjected Abdull to special rules that were not applied to Caucasian parents.
A. The Lovaas Treatment Program
Lovaas is a Minnesota corporation that provides behavior therapy to young children with autism spectrum disorders using a method called Intensive Early Intervention Behavior Therapy ("IEIBT"). Def.'s Mem. Supp. Summ. J. [Docket No. 35] 1. The goal of IEIBT is to modify autistic behaviors so that the child can function independently and be mainstreamed into the general school population. Id . The younger a child starts IEIBT, the more likely the program can reduce autistic symptoms. Pl.'s Opp'n to Def.'s Mot. Summ. J. [Docket No. 41] 4.
IEIBT is a particularly time and labor intensive method of treatment for autism. Def.'s Mem. Supp. Summ. J. 2. A team of Lovaas professionals - including behavior therapists, senior behavior therapists, a clinical supervisor, and a psychologist - work together to provide appropriate, individualized treatment to each child based on the child's particular needs. Larsson Aff. ¶¶ 8, 12. Behavior therapists provide up to 40 hours of therapy each week to the child in the child's home. Id . ¶ 12. In addition, a clinical supervisor spends five to eight hours per week evaluating the child and training the parents to reinforce appropriate behaviors. Id.
Because of the extensive time and labor associated with IEIBT, the cost of Lovaas' services is over $100, 000 per year per child. Def.'s Mem. Supp. Summ. J. 2. The cost of services for many children in the Lovaas program, including A.A., can be covered through Medical Assistance, Minnesota's Medicaid program. Larsson Aff. Ex. 5 [Docket No. 37]. Due to the expense, the Minnesota Department of Human Services requires a licensed psychologist to certify periodically that the services provided are "medically necessary." Larsson Aff. ¶ 11.
To determine whether IEIBT is "medically necessary" for the child, Lovaas conducts a formal evaluation every six months to assess the child's responsiveness to treatment. Id . ¶¶ 11, 14, 20. As part of this process, Lovaas documents the amount of progress the child has made as a result of IEIBT to determine its effectiveness and prognosis for success in the future. Id . ¶ 11. The child must make substantial developmental gains on testing assessments to warrant continuation of IEIBT over other available autistic treatment services. Id . Ex. 8. Because Lovaas re-evaluates the child every six months, Lovaas only agrees to provide one six-month term of treatment at a time. Id . ¶ 11.
B. Lovaas Policies Regarding Recommendations of Continued IEIBT
Lovaas requires parents with a child in the program to sign a comprehensive Informed Consent for Direct Treatment Services for Intensive Early Intervention Behavior Therapy ("Informed Consent") before beginning services and before each subsequent six-month term of treatment. Id . ¶¶ 13, 15. Both the clinical supervisor and the psychologist spend several hours reviewing the Informed Consent with the parent every six months to make sure the parent understands its implications. Id . ¶ 15. The Informed Consent explains Lovaas' policies regarding the six-month review:
A progress review will occur after the first six months to determine whether the intensive treatment model is appropriate for the child. This determination will be based upon an objective measurement of the child's rate of progress. If the treatment is considered appropriate, the program will continue, with a review every six months, until the Institute and the parents agree not to initiate another six-month service agreement. If the result of a six-month review is that either the parents or the Institute conclude that the treatment is no longer appropriate, a transition plan will be developed and implemented for a smooth transition into more suitable services...
If a child fails to make sufficient progress in mastering benchmark objectives in two consecutive six-month periods, then a transitional plan will be developed and implemented during the subsequent six-month period review.
Id. Ex. 7 ¶¶ 15, 16.
The Lovaas Institute Policy and Procedures Manual ("Policy and Procedures Manual") addresses the criteria that define "progress" for the purpose of recommending continued IEIBT. Id . Ex. 8 at 17. To continue IEIBT after the first six-month progress review, the child must have passed the Early Learning Measure. Id . To continue IEIBT after subsequent six-month progress reviews, the child must pass 80% of skill acquisition benchmarks. Id . If the child fails to make sufficient progress in two consecutive six-month periods, the child's therapy will transition to a focus on functional goals aimed toward improving the child's independence and quality of life. Id.
The Policy and Procedures Manual also contains a section addressing how the age of the child influences the duration of treatment. It states:
In no case is the child's age taken into account as the primary factor in making the decision to continue treatment. While it may be that the child has stopped making the therapeutic process that would justify [Lovaas's] services, as the child did grow older; it is the lack of progress, or the change in the parent's goals, that causes the termination, rather than the child's age alone. In many cases, [Lovaas] has continued to serve older children; out of [Lovaa's] commitment to the child, whenever the child could benefit. However, many older children no longer make sufficient progress to justify the extreme cost of an intensive therapy program, when typical special programs, which can be just as effective, already exist in the child's community.
C. Lovaas' Provision of Services to A.A.
1. A.A.'s First Seven Months in the Program
A.A. was diagnosed with autism in 2007. Larsson Aff. Ex. 1-2. A.A. applied to Lovaas and began receiving IEIBT in May 2008. Larsson Aff. ¶ 24. At the time, he was five years and nine months old and nonverbal. Id . In the initial assessment, Lovaas did not project the best prognosis, i.e. recovery from autism, for A.A. Id . Abdull signed the Informed Consent before Lovaas began treating A.A. Id . ¶ 16.
Amy Novotny was A.A.'s clinical supervisor. Id . ¶¶ 25, 69. Novotny worked with A.A. for three months, until she left Lovaas for another organization. Id . Victoria Crow temporarily served as A.A.'s interim clinical supervisor for a few weeks before Karin Morris was assigned as A.A.'s permanent clinical supervisor. Id . ¶ 70. Abdull asked Crow to remain as A.A.'s supervisor, but she was reassigned to another family. Abdull Aff. ¶ 12. Crow allegedly told Abdull that she ...