incurred thus far. (Ex. M). On May 9, 1995, Rosenblum sent a letter to Mr. X stating that the home based services he requested were not considered to be within the confines of available services pursuant to state education regulations. (Ex. 4). An impartial hearing was held on October 17, 1995, November 16, 1995, December 19, 1995 and January 5, 1996. The HRO, Allison Berry, directed the Board to proceed with its case since it bore the burden of proving that its recommendation for E was appropriate. (R. 00010). Rosenblum, the Board's first witness, testified that the CPSE based its recommendation on the Persky, Fish, Hirsch and April 8th Parkside evaluations recommending a preschool nursery that provided speech and language therapy, on the fact that E's home based program was understood to not be approved by state regulations, and lastly, on Blaustein's assurances that AMAC had a "wonderful" class for E. (R. 00047-49, 55, 74).
On March 29, 1996, Berry found that the CPSE recommended a FAPE for Eric in the least restrictive environment and found that plaintiff failed to prove the appropriateness of his home based program and failed to show that it was least restrictive. (R. 00286-315). On July 26, 1996, the SRO, Ann Eldridge, affirmed the HRO's decision, finding that AMAC was a less restrictive environment than E's home based program and that the 25 hours per week at AMAC would provide E with an educational benefit (R. 00317-327).
2. Educational Benefit
If the conclusions of the hearing and review officers are "unsupported by the record as a whole and incorrect as a matter of law, they simply [do] not merit deference." Evans, 930 F. Supp. at 102 (citing P.J. v. State of Connecticut, 788 F. Supp. 673, 679 (D.Conn. 1992)). As noted above, the court finds that neither the record nor applicable law supports the hearing and reviewing officers' decisions that E was provided a FAPE. At the hearing, although Rosenblum testified that the CPSE recommendation of AMAC as a placement was primarily based on the Persky, Hirsch, and April 8th Parkside evaluations, he also testified that the CPSE declined to make a IEP determination at its initial CPSE meeting held on May 4, 1994 based on these evaluations alone due to the conflicting recommendations, i.e., Hirsch, Parkside, and Blaustein, and because the Persky evaluation was not sufficient and an inappropriate basis for making an educational recommendation. (R. 00031-32, 47-55).
At CPSE's request, Miller submitted another evaluation on June 13, 1994 on behalf of Parkside in an effort to clarify the conflict noted by Rosenblum, stating that Miller, Hirsch, and Blaustein recommended that E remain in the home based program in which he was currently involved and that Miller, Hirsch, and Persky recommended a center based program since home based programs were not state funded programs. At the hearing, it was established that Rosenblum, Miller and the other Parkside evaluators were under the mistaken understanding that state educational law did not fund home based programs. (R. 00049-51).
The Parkside evaluators, therefore, recommended the center based program not because it was necessarily an appropriate setting for E but because they thought the home based program in which E was showing remarkable improvement could not be an IEP recommended placement because it was not state approved.
Moreover, it was established at the hearing, that the Fish, Hirsch, Blaustein, and Parkside evaluations, which CPSE relied on, were made prior to E's diagnosis as an autistic child and that their recommendations were made based on the understanding that E suffered from a language and communicative delay. This court has previously held in Malkentzos v. DeBuono, 923 F. Supp. 505 (S.D.N.Y. 1996) (Motley, J), remanded on other grounds, 102 F.3d 50 (2d Cir. 1996) that the educational agencies' satisfaction of the obligation under IDEA of meeting the educational needs of a disabled child on a personal and substantive level "means recognizing [the child's] differences as an autistic child and addressing it...Distinction between autistic children and otherwise developmentally disabled children [is] highly relevant." 923 F. Supp. at 515.
In this case, as in Malkentzos, reliance on expert evaluations that do not recognize E as an autistic child with distinct problems that are different from and perhaps more complex than a child suffering from language and communication delay renders an IEP based on these evaluations inappropriate. 923 F. Supp. at 514. On the other hand, Perry, and both the Cohen, and Palazzo evaluations, submitted to CPSE for review and as evidence at the hearing, all acknowledge E's autistic disorder and recommend that he remain in the home based ABA program using discrete trial instruction. Cohen and Perry both wrote that ABA was extremely labor intensive and had to be continued throughout the day. Both noted that such intensity was necessary for autistic children and particularly, E, if he was to develop appropriately. Cohen, specifically, recommended 40 hours per week with a ratio of 1:1 of staff to Eric. (Exs. G, H).
Rosenblum testified that another reason CPSE chose AMAC, the center based program, over E's home based program was because of the assurances made by Blausten that E would have a one to one aide with 25 hours of ABA instruction and could receive a beneficial education at AMAC. As a preliminary matter, the court notes that neither Rosenblum nor Blausten interviewed or evaluated E personally (R. 00096), therefore, their opinions carry less weight than the evaluators who have personally met him. Since an IEP is to be fashioned based on the particular needs of E and not autistic children generally, "it is elementary that those who have personally met and evaluated [the child] are far better positioned to discern what is appropriate for him." Malkentzos, 923 F. Supp. at 515.
Although the IEP provided for 25 hours per week of ABA instruction by a one to one aide, Blausten testified that AMAC did not have a one to one aide for E as of yet. (H. 00127, 147). Although she testified that the hiring of an aide was not subject to state funding, she stated that AMAC did not have one readily available when AMAC was recommended as the appropriate placement for E. (H. 00150-151). Furthermore, when Blausten was asked for her understanding of ABA and AMAC's methodology, she stated "our methodology is one that approaches analysis of behavior and programming based upon data collection and training in a discrete trial basis. And whether or not it is one to one, or a group of two, or a group of three, we are able to meet these objectives." (R. 00106). When asked how ABA one to one instruction for E would work on a typical day, Blausten explained:
Usually the pattern is if fifteen minutes on, five minutes off, or twenty minutes on or five minutes off...during the day the options include going to the gym with your one to one and having at least twenty minutes to a half hour of gym time...during music, then that person would be sitting not face to face, on a one to one but in a group...[and providing] specific discrete trial training or the instruction to [E] in specific areas within the schedule of the classroom. So that during the day three children are working, if a portion of the day the children are working on an activity and there is a parallel activity or training session with this happening during the day for [E] they are included as I said in the divided classroom, so there is an option he may be sitting on the side where there are one to one, where there is a table and a chair and the child is sitting next to the person--if it something that is done at a table perhaps it is done straight face to face on a one to one basis, where the person is directed to provide the instruction. Of for the teacher provides the general supervision for general ADL activities. Activities daily like going to the bathroom, it is hand over hand in some places or in sometimes with respect to the program, a para professional--a teacher assistant would be sitting outside of a group in a group setting if on the child's program it said that they would have music in a group of four. There is a music teacher there and then the para professional might be sitting, the teacher assistant might be sitting four feet from the person...that is how it works.
(R. 00112-13, 139-140).
E's evaluators recommended intensive and continuous ABA discrete trial instruction, 40 hours a week. Given the description above of the services AMAC would have provided E, it is not clear to the court that E would have even received the 25 hour per week of ABA instruction.
Blausten makes reference to "fifteen or twenty minutes of instruction on with five off" and describes twenty five minutes of gym play on certain days and miscellaneous group activities, like music, on other days where the one-to-one aide will sit either in front of E or beside him during the teacher's lesson. This does not seem to amount to 25 intensive hours per week of ABA instruction on a one-to-one basis for E and his aide. The evaluations make clear that E, an autistic child with his own individual problems, needs to continue in an intensive ABA program to encourage and develop his ability to relate with others and to derive an "educational benefit" from group socialization like the music, gym, and cooking classes and group interactions provided by AMAC. From the record, it is clear that the IEP did not provide E with the specialized educational and related services that would meet his unique needs as an autistic child,
particularly, in light of the fact that at the time AMAC was recommended as the appropriate placement for E, it had neither a one-to-one aide for him nor an appropriate ABA program in place to meet his needs.
Lastly, the court finds that although the SRO was correct in concluding that the HRO was incorrect in determining that the IEP was appropriate despite the fact that the short term goals did not reflect E's current ability because they could be modified to meet E's actual educational level once he began the program,
the SRO was incorrect in affirming the HRO finding that the IEP was appropriate because AMAC was the least restrictive placement for E. IDEA emphasizes the education of disabled children with non-disabled children,
which is commonly referred to as "mainstreaming." Briggs, 882 F.2d at 691. The Second Circuit has noted, however, that some disabled children must be educated in segregated facilities either because of their disruptive behavior in a regular educational setting or because the gains from mainstreaming is marginal as compared to segregated instruction and concluded that the presumption in favor of mainstreaming must be weighed against the importance of providing an appropriate education to disabled children. 882 F.2d at 692.
In this case, placing E in AMAC, a therapeutic nursery that provides an educational setting for autistic children and children with pervasive developmental disorders, is clearly a segregated placement and contrary to "mainstreaming." The only basis for the "appropriateness" of such a placement is the recommendations of those evaluators who evaluated E prior to his diagnosis as an autistic. The court has already discussed the minimal weight it places on these recommendations. Moreover, although City defendants argue in their motion papers that the AMAC placement was the least restrictive environment and the HRO and SRO agreed, Rosenblum admitted at the hearing that the AMAC placement was the most restrictive. (R. 00065). E's home based ABA instruction may also seem contrary to the mainstreaming objective since E is removed from a regular educational setting with non-disabled children. However, the court notes that none of the expert evaluations recommended complete mainstreaming as appropriate for or beneficial to E's educational development but most concluded that E's home based ABA instruction supplemented with his three classes with non-disabled children several times a week was the appropriate and beneficial program for E given his unique needs.
Given the administrative record together with the additional evidence, the court finds that the IEP prepared by the CPSE at the January 13, 1995 meeting did not provide plaintiff's son with a free and appropriate education that would render some educational benefit to him in violation of the IDEA. For the reasons cited above, this court grants plaintiff's motion for summary judgment.
New York, New York
September 4, 1997
CONSTANCE BAKER MOTLEY