York State Educ. Dept.,
96 Civ. 7059 (CBM)
Below are links to parts of this decision.To go to a section, click
the highlighted text.)
16, 1996, plaintiff ("Mr. X") commenced this action on behalf of his
son ("E") alleging that E had been deprived of a free and appropriate
education ("FAPE") which he is entitled to under the Individuals with
Disabilities Education Act ("IDEA"), 20 U.S.C. 1400 et seq. and New
York Education Law. After plaintiff applied to defendant Community School
District 2 ("School District") for educational services for E, the School
District’s Committee on Pre-School Special Education ("CPSE") developed
an Individualized Education Plan ("IEP") for E, which plaintiff rejected.
Pursuant to IDEA, plaintiff demanded an impartial hearing on the IEP.
The Impartial Hearing Officer ("HRO") determined that the CPSE had recommended
a FAPE as required by law. Plaintiff appealed the decision to the State
Review Officer ("SRO") who dismissed the appeal. This action followed
challenging these decisions.
21, 1996, defendant New York State Education Department ("SED") filed
a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(6).
On November 27, 1996, New York City Board of Education and School District
(collectively, "City defendants") filed an answer. On January 7, 1997,
plaintiff filed a cross-motion for summary judgment and an opposition
to SED’s motion to dismiss. On the same day, City defendants moved for
leave to amend their answer to assert a cross-claim against SED. On
February 18, 1997, City defendants filed a cross-motion for summary
judgment against plaintiff. On April 8, 1997, SED and City defendants
submitted a stipulation, which was so ordered by this court, stating
that SED would not oppose City defendants’ application to amend their
answer and that SED could move to dismiss any cross-claims asserted
against it by City defendants if any claims against any defendants survived
this court’s disposition of the pending motions to dismiss and for summary
judgment. Parties were notified by stipulations so ordered by this court
and dated January 2, 1997 and February 14, 1997 that any motions or
cross-motions would be taken on submission.
as alleged in the complaint are as follows: E was born on August 9,
1991. Since March, 1994, E has been receiving, at the expense of his
parents, remediation for his autistic symptoms in a home based program
which incorporates discrete trial instructions using Applied Behavioral
Analysis ("ABA").1 ABA has been recognized as the only method
with any real success in the remediation of autistic symptoms. Discrete
trial instruction using ABA is conducted by paraprofessionals on a one-to-one
basis under skilled supervision. Remediation requires intensive formal
instruction by paraprofessionals and is supplemented by continuous incidental
teaching by parents and care givers. Autistic children, including E,
often lack motivation to learn new tasks, participate in social environments,
and utilize important cues set before them in an educational setting.
E’s home based program was conducted 40 hours a week by three paraprofessionals,
who were supervised by a professional trained in ABA and who spent two
to three hours with E improving his motivation and ability to recognize
environmental cues, and was supplemented by instruction from his parents.
E’s ABA instruction was also supplemented with mainstream activities
with children without disabilities, particularly two music classes and
a mother/child play group several days a week.
18, 1994, two months before plaintiff began E’s home based ABA program,
plaintiff applied to the School district for public preschool educational
services for E, services E would become eligible for on July 1, 1994.
Thereafter, E was evaluated and his educational needs were assessed
by a multi-disciplined team of experts who plaintiff alleges determined
that E should continue in the home based program. Plaintiff alleges
that in fall, 1994, CPSE forwarded E’s evaluation report to several
privately owned nursery schools, including the Association in Manhattan
for Autistic Children ("AMAC"), and asked each to indicate whether it
thought it could provide an appropriate education for E. Each school,
except AMAC, allegedly informed CPSE that they had no vacancies. Plaintiff
also claims that although CPSE had not yet formulated an IEP for E,
a Board of Education representative on the CPSE informed him that the
CPSE would be recommending E to AMAC.
23, 1995, a year after plaintiff applied for educational services and
six months after E was eligible for such services, at a meeting in which
plaintiff was present, CPSE allegedly recommended that E be placed in
AMAC, formulated short term goals and objectives some of which where
ultimately deleted following plaintiff’s contention that E had already
met those objectives, and provided 25 hours of ABA instruction per week.
When informed by plaintiff that AMAC did not have a one-to-one aide
for E to administer ABA instruction, CPSE allegedly made the availability
of one-to-one ABA instruction for E subject to SED’s approval of Board
funding to hire such an aide. Additionally, plaintiff alleges that CPSE
revised the draft IEP to conform to AMAC’s resources once it was informed
by AMAC’s director that AMAC could not fulfill certain requirements
in the draft IEP.
alleges that CPSE’s recommendations in the IEP were arbitrary and capricious
and contrary to federal and state laws. Plaintiff claims that AMAC consists
only of children with various disabilities including some that are autistic
and argues that the law requires CPSE to avoid separating children with
disabilities from children without disabilities. Plaintiff maintains
that placing E, an autistic infant, in AMAC would harm his development
and that the IEP, suggesting said placement, was in violation of the
law since it was not based on the needs of E but on the resources of
the educational institution. Lastly, plaintiff claims that at the meeting,
CPSE failed to provide him with an explanation as to why it recommended
a program contrary to that preferred by him and the specialists, i.e.,
the home based program, and that four months after the meeting, CPSE
erroneously informed him by letter that the home based program he requested
did not fall within the confines of available services provided by the
State Education Regulations.
22, 1995, plaintiff rejected the IEP and the AMAC placement and demanded
an impartial hearing. Plaintiff claims that CPSE failed to meet its
burden of proving that its recommendations were appropriate by not offering
any written reports, evaluations, or recommendations other than those
previously furnished by plaintiff. Plaintiff alleges that CPSE’s principal
witness, Frederica Blausten ("Blausten"), AMAC’s executive director,
admitted that she had not interviewed E, personally, but that a staff
psychiatrist had, although neither he nor his report were submitted
into evidence at the hearing. Blausten also allegedly testified that
AMAC could only provide intermittently 25 hours of education to E on
a one-to-one basis. Moreover, plaintiff claims that the Board submitted
no evidence showing that the State Education Department had approved
the Board’s funding for the one-to-one aide mentioned in the IEP.
29, 1996, although the HRO acknowledged that E had made remarkable progress
in his home based program to the credit of his parents and that CPSE
had erroneously concluded that home based programs were not authorized
under state regulations, the HRO determined that City defendants had
recommended a FAPE for E. The HRO found that the IEP was not inappropriate
because some of the short term objectives and goals set for E had already
been achieved by him since they could easily be modified to suit his
actual skill level when he entered the program; that plaintiff failed
to show that the home based program was more appropriate or a less restrictive
environment than the center based program; and that there was no evidence
establishing that ABA could not be implemented intermittently to E in
a class with seven children or that it had to be implemented 40 hours
a week to be effective and not 25.
appealed the decision of the HRO to a SRO claiming that the HRO’s decision
was arbitrary and capricious due to her misconstruing of the law in
holding that segregated education of disabled children is not the most
restrictive environment and in determining that the short term objectives
were appropriate because they could be modified. Plaintiff maintained
that the HRO erroneously shifted the burden from the City defendants
to prove the appropriateness of their recommended placement and erroneously
determined that plaintiff was partially responsible for the delay in
the formulation of the IEP.
26, 1996, the SRO dismissed plaintiff’s appeal despite her finding that
CPSE failed to comply with state law by not providing Mr. X, at the
time of its recommendation, with a reason for its recommendation of
a program other than that preferred by the parent. Plaintiff claims
that both the HRO and SRO ignored the fact that the IEP conditioned
the ABA one-to-one instruction on State approval of Board funding for
the additional staff member at AMAC. Furthermore, plaintiff maintains
that although the SRO found that the HRO erred in ruling that the IEP
was appropriate because the short term objectives could be modified,
the SRO also misconstrued the IDEA mandate against placement of a child
with a disability in a classroom with other children with disabilities.
Plaintiff alleges that since defendants failed to provide a FAPE to
E, they should reimburse him $ 88,000.00, the sum of the expenses incurred
in providing such education. He also seeks attorney’s fees and punitive
damages in the amount of $250,000.00.2
Motion to Dismiss
may grant a motion to dismiss only if "it appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief." Cohen v. Koenig, 25 F.3d 1168,
1172 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46,
78 S.Ct. 99 (1957)). Although a court must take "as true the facts alleged
in the complaint and [draw] all reasonable inferences in the plaintiff’s
favor," Jackson National Life Insurance Co. v. Merrill Lynch &
Co., 32 F.3d 697, 699-700 (2d Cir. 1994), a complaint that consists
of nothing more than bald assertions and claims with no facts upon which
a court could find a violation fails to state a claim under Rule 12(b)(6).
Yusuf v. Vassar College, 35 F.3d 709 (2d Cir. 1994).
1. SED’s Argument
case, SED moves to dismiss arguing that it is not a proper defendant
in this action challenging the decision of the SRO because the Commissioner
of SED no longer acts as the SRO in administrative appeals under IDEA.
SED also argues that plaintiff fails to allege in his complaint any
wrong doing by SED. In reply, plaintiff asserts that the 1990 amendment
of the State Education Law removing the Commissioner and creating a
separate and neutral SRO does not exonerate SED from liability for failure
to comply with IDEA mandates. Plaintiff contends that although the SRO
is required under the IDEA to be impartial and neutral, the SRO is still
a state official who acted on behalf of the state when she denied plaintiff’s
appeal from the HRO’s decision. Plaintiff also maintains that there
were numerous due process violations during the review process which
implicate the policies and liabilities of SED. Furthermore, plaintiff
argues that SED is liable because it is ultimately responsible under
IDEA and state law for approving all programs and evaluations.
2. 20 U.S.C. § 1415
complaint, plaintiff invokes this court’s jurisdiction pursuant to 20
U.S.C. § 1415.3 In accordance with this section, this
case is an administrative appeal of the findings and decisions of the
SRO in regards to the IEP formulated for plaintiff’s son. The court
has found no case law that directly states that a SRO decision denying
plaintiff’s appeal subjects SED to the jurisdiction of this court pursuant
to this section. This court finds, however, that given the related case
law, legislative history of IDEA, and implementing federal and state
regulations, SED is subject to this court’s jurisdiction and is a proper
party in this action.
U.S.C. §§ 1400-1485, is a comprehensive statute that was enacted
by Congress to address the problems and financial burdens placed upon
the states and localities in educating handicapped children.4
Quackenbush v. Johnson City School District, 716 F.2d 141, 145 (2d
Cir. 1983). To accomplish this ambitious goal, IDEA provides federal
funding to state and local educational agencies that undertake to implement
the substantive and procedural requirements of the Act. Burlington
School Comm., et al., v. MA. Dep’t of Ed., 471 U.S. 359, 368, 105
S.Ct. 1996 (1985).
funding is conditioned upon a state’s implementation of a policy, reflected
in a state plan, that assures all handicapped children the right to
a "FAPE."5 20 U.S.C. § 1412 (1); Board
of Education of Hendrick Hudson Central School District v. Rowley,
458 U.S. 176, 181, 102 S.Ct. 3034 (1982). Such an education must be
tailored to meet the unique needs of the individual child which is accomplished
by the formulation of an IEP.6 Karl v. Board of Education
of the Geneseo Central School District, et al., 736 F.2d 873, 876
(2d Cir. 1984). The IEP is "the modus operandi of the Act [and] . .
. is in brief a comprehensive statement of the educational needs of
a handicapped child and the specially designed instruction and related
services to be employed to meet those needs." Burlington School Comm.,
471 U.S. at 368.
for federal funding, states must not only develop a state plan and IEP
but must also meet the extensive procedural safeguards required by the
Act in § 1415. Section 1415 has been described as a "bill of rights
for parents." J.G. v. Board of Education of the Rochester City School
District, et al., 830 F.2d 444, 445 (2d Cir. 1987); Vander Malle
v. Ambach, 673 F.2d 49, 52 (2d Cir. 1982).
with § 1415(b)(2), parents must be permitted to bring a complaint
about the IEP before a hearing officer whose professional and personal
interest due not conflict with his or her ability to make an impartial
decision.7 see supra footnote 1; 34 C.F.R. §§ 300.506-507.
States may implement either a single or multi-tiered level of review
and if the initial hearing takes place at the local level, parents may
appeal to the state educational agency. § 1415(c); 34 C.F.R. §
300.510. At the end of the administrative review process, any party
may bring a civil action in state court or federal district court. §
1415(e)(2); 34 C.F.R. § 300.511.
to IDEA, New York has adopted a plan which places the responsibility
of deciding whether a child is "handicapped" and of developing an IEP
on the local educational agency, i.e., the City Board. N.Y.Educ.Law
§§ 4201-13, 4351-58, 4401-09 (McKinney 1981 & Supp. 1992).
The Board in turn appoints a Committee on Special Education who develops
the IEP. N.Y. Educ. Law § 4402(1)(b)(1). New York has a multi-tiered
system of review of IEPs. The initial hearing is conducted before a
HRO appointed by the Board from a list of state-certified officers.
see also, Heldman v. Sobol, 962 F.2d 148, 152 (2d Cir. 1992).
Prior to the 1990 Amendment, parties appealed to the Commissioner of
Education for review of the HRO decision; however, parties now appeal
to a neutral SRO.8 see, N.Y.Educ.Law § 4404(2).
the amendment, when the Commissioner served as SRO, a parent could bring
a civil action in federal court against the Commissioner and therefore,
SED,9 because the parent was "aggrieved" by Commissioner’s
decision. 20 U.S.C. § 1415(c); Mavis v. Sobol, 839 F. Supp.
968 (N.D.N.Y. 1994) (Because prior to the effective date of the Amendment,
Commissioner remained the statutorily designated SRO and made a decision,
in that capacity, which "aggrieved" plaintiff, Commissioner was a proper
party in the action); Robert D. v. Sobel, as Commissioner of
Education of the State of New York, 688 F. Supp. 861 (S.D.N.Y. 1988);
Antkowiak v. Ambach, as Commissioner of New York State Education
Department, 830 F.2d 444 (2d Cir. 1987). In this case, this court finds
little logic in defendant SED’s argument that it is not a proper party
in this action because the Commissioner is no longer a part of the administrative
or judicial review process of IEPs.
the cases cited by SED show why the Commissioner and therefore, SED,
are not proper parties in an action brought pursuant to 1415(c) on the
grounds that the Commissioner no longer acts as SRO, but none address
the issue as to whether an SRO decision (like that of the Commissioner
who once acted in his or her official capacity as SRO) represents that
of SED and, therefore, subjects SED to actions of this type. In Jose
P. v. Ambach, 669 F.2d 865 (2d Cir. 1982), the court held that the
Commissioner could be held liable for general supervisory violations
in an action brought pursuant to § 1412(6)10 of IDEA
for failing to "enforce federal and state laws and to provide adequate
general supervision over the New York City School system [and to] ensure
compliance with [his] orders." Id. at 871. In Dorian G v. Sobol,
(E.D.N.Y.), the court distinguished Jose P on the grounds that Jose
P was a class action against the Commissioner alleging procedural and
systematic violations of federal and state law brought under §
1412(6) and not an administrative appeal under 20 U.S.C. § 1415
like the matter that was before it.
dismissed the Commissioner and rejected plaintiff’s attempt to apply
the reasoning of Jose P that the Commissioner could be liable
for failing to supervise local school districts and enforce federal
and state laws. see also, Brushini v. Board of Education, et al.,
(S.D.N.Y.) (Commissioner and hence, SED, dismissed because court found
State not liable for HRO’s decisions and because there was no allegation
of SRO procedural due process violations).11 Similarly and
closest to SED’s argument in this case is Yamen v. Board of Education
of the Arlington Central School District, et al., 909 F. Supp. 207
the court concluded that since the Commissioner was no longer involved
in the administrative appeal process and since the complaint contained
no allegations of wrongdoing or systematic and procedural deficiencies
on the part of the State, the Commissioner and, hence, SED were dismissed
from plaintiff’s § 1415 action. In following the logic of Dorian
G and Jose P, the court rejected plaintiff’s argument that
the SRO’s decision, written on State letterhead, was sufficient to put
the Commissioner and SED on notice that plaintiff’s child had been denied
notes, however, that although the SRO’s decision may not be sufficient
to put the Commissioner and SED on notice of any procedural deficiencies,
SED is responsible and subject to liability for the SRO’s determination.
If the Commissioner acting as SRO in making a decision regarding an
IEP once subjected SED to a judicial proceeding reviewing such a decision,
it seems only logical that the SRO, appointed by SED to make the same
determinations, subjects SED to this court’s jurisdiction pursuant to
20 U.S.C. § 1415(c). The parent does not stop being "aggrieved"
by the "final decision" of an administrative review because an SRO,
rather than the Commissioner, now makes the decision. Although the court
is not deciding, in this case, on whether the SRO is an official of
SED, who if sued in his or her official capacity would subject SED to
liability, the court finds that the SRO decision, here, was on behalf
of SED which is sufficient to subject SED to this court’s jurisdiction
pursuant to 20 U.S.C. § 1415. Shedding more supportive weight to
this court’s finding is the federal implementing regulation which specifically
states in an explanatory note to § 1415(c) that "the [SED] may
conduct its review either directly or through another State agency acting
on its behalf. However, the [SED] remains responsible for the final
decision on review." 34 C.F.R. 300.510 n.1 (emphasis omitted).
a case in which the Supreme Court discussed the responsibilities imposed
on state educational agencies under IDEA, the Court established a two-step
process court’s are to follow in actions brought pursuant to 1415(e)(2).
The Supreme Court stated that the reviewing court must first decide
whether the state has complied with the procedural requirements of the
Act and then must determine whether the IEP "is reasonably calculated
to enable the child to receive educational benefit." 458 U.S. at 207;
see also, Karl, 736 F.2d at 876. The Court noted that "this inquiry
will require a court not only to satisfy itself that the State has adopted
the state plan, policies, and assurances required by the Act, but also
to determine that the State has created an IEP for the child in question
which conforms with the requirements of [the Act]." Rowley,
458 U.S. at 207 n. 27.
Circuit has acknowledged that the sole purpose of the court’s substantive
review of the IEP mandated by Rowley is to ensure that disabled
children are not denied access to their state’s educational system.
Karl, 736 F.2d at 876. In the matter before the court, since
SED "remains responsible for the final decision on review," the court
finds that SED is a proper defendant in this action considering whether
plaintiff’s son was denied access to a beneficial state education due
to the SRO’s denial of plaintiff’s appeal. The court now turns to the
merits of plaintiff’s action challenging the adequacy of his son’s IEP.
B. Summary Judgment Standard
case, plaintiff moves for summary judgment against SED and City defendants
and City defendants cross move for summary judgment. When a party moves
for summary judgment in an IDEA action, the court does not make the
traditional inquiry into whether there are disputed material issues
of fact, but rather, whether the administrative record and any additional
evidence shows that there has been compliance with IDEA’s procedure
and that the IEP has addressed the child’s educational needs. Wall
v. Mattituck-Cutchogue School District, 945 F. Supp. 501, 508 (E.D.N.Y.
1996); see, Briggs, 882 F.2d at 693. The Second Circuit has not
decided on the issue of who bears the burden of proof in administrative
appeals and the courts in this Circuit are split on the issue. see,
Board of Education of Rhinebeck Community School District,
930 F. Supp. 83, 93 (S.D.N.Y. 1996) (party challenging administrative
determination bears burden of proof); Wall, 945 F. Supp. at 509-11
(burden of proving the adequacy of an IEP lies with the school district);
Hiller v. Board of Education of Brunswick Community School District,
743 F. Supp. 958, 967 (N.D.N.Y. 1990) (party challenging administrative
findings bears burden of proof in district court).
of who bears the burden of proof, 20 U.S.C. § 1415 ultimately requires
a trial court to make an independent determination on the adequacy of
the IEP developed for the child based on a "preponderance of the evidence."14
see, Briggs, 882 F.2d at 692; Mrs. B. v. Milford Board of
Education, 103 F.3d 1114, 1120 (2d Cir. 1997); Rowley, 458
U.S. at 205 (courts are to make independent decisions based on a preponderance
of the evidence).
authority to review state administrative decisions regarding special
education is limited, however, because courts are required to give "due
weight" to state administrative proceedings. Rowley, 458 U.S.
at 206; Briggs, 882 F.2d at 693 ("deference is owed to state
and local agencies having expertise in the formulation of educational
programs for the handicapped"). Reviewing courts are to avoid imposing
their view of preferable educational methods upon the states because
the "preponderance of the evidence" provision is "by no means an invitation
to the courts to substitute their own notions of sound educational policy
for those of the school authorities which they review." Karl,
736 F.2d at 876-877 (quoting Rowley, 458, U.S. at 207). Although
the Act does not permit a court to "impose a particular substantive
educational standard on the state or to require equality of opportunity
for the handicapped education," Mrs. B, 103 F.3d at 1120 (quoting
Karl, 736 F.2d at 876), the court must establish whether the
state IEP was reasonably calculated to render some meaningful benefit.
see, Rowley, 458 U.S. at 192; Quackenbush v. Johnson City
School District, 716 F.2d at 146 ("apparently Congress intended
the court to have a significant role in achieving the substantive goals
of the statute").
of these standards, the court has reviewed the administrative record
together with additional evidence in the matter now before it and has
made an independent judgment based on a preponderance of evidence, giving
due weight to the administrative proceedings. The court finds that the
educational program offered by SED and the City defendants in the IEP
is not within the meaning of IDEA.
1. Underlying Facts
has raised in his motion for summary judgment a number of reasons establishing
that the IEP is inappropriate. Specifically, plaintiff contends that
the IEP is directly contrary to his and professional expert evaluations
and recommendations on an appropriate education for plaintiff’s son,
i.e, continued intensive ABA instruction 40 hours a week, preferably
in the home-based program in which plaintiff’s son was then involved.
Plaintiff also contends that ABA with a one-to-one instructor for 25
hours a week was not guaranteed to plaintiff’s autistic child and was
conditioned upon SED funding; that the 25 hour ABA instruction was not
continuous or intensive and was not proven to be appropriate; that the
short term goals specified were arbitrary; and lastly, that the placement
of plaintiff’s son into a classroom with children with other disabilities,
including autism, was contrary to federal and state law.
agrees with plaintiff’s contentions regarding the IEP and finds it difficult
to comprehend, given the record, that the HRO and SRO could determine
that the IEP provided an education program from which plaintiff’s son
could derive an "educational benefit." This court now reviews in detail
the record in this case.
to the record, just prior to E turning two, Mr. X and his wife began
to notice that E used only five words despite his appearance of a normal
physical development. (R. 00198).15 When E lost two of the
five words by December, 1994, upon the advice and referral of E’s pediatrician,
Mr. X took E to be evaluated by Dr. Robin B. Persky, a licensed clinical
psychologist, who informed plaintiff of his right to apply to the CPSE
in his local school district. In her evaluation dated January 18, 1994
and February 1, 1994, Persky noted that E was "language delayed. . .in
both expressive and receptive language skills" and recommended that
he "attend a specialized nursery school program for children with language
and communication disorders. . .[and] receive intensive speech and language
therapy, at least on a twice weekly basis." (Ex. 19).
18, 1994, plaintiff wrote to Alan Rosenblum, School District Administrator,
requesting that his son be evaluated by the CPSE. (Ex. B). CPSE then
sent out an evaluation package to Mr. X which included a list of private
evaluation sites where parents may take their child for evaluation.
(R. 00024). By letter dated February 9, 1994, plaintiff requested Parkside
School as an evaluation site. (Ex. 13). Nancy Hirsch, a social worker
at Parkside, began the evaluation process by meeting with Mr. X and
asking Mr. X to bring any evaluations he had on E. (R. 00248). Mr. X
brought the Persky psychological evaluation and was informed that the
evaluation was sufficient, hence, Parkside would not need to conduct
its own psychological evaluation of E. In her social history evaluation,
Hirsch noted that Mr. X’s wife and E had just begun attending Tomorrow’s
Learning Center utilizing applied behavior management techniques, that
Mr. X was seeking to develop a home based program using these techniques,
and that E attended two music classes, a mother/child play group, and
speech therapy weekly. Hirsch recommended a "special language based
preschool program providing individualized attention." (Ex. C, E).
Fish at New York Hospital, conducted a neurological evaluation of E
on February 15, 1994 and wrote an evaluation dated March 15, 1994, diagnosing
E with a "pervasive communication disorder," noting that E was involved
and improving in his home based ABA program, and recommending "education
. . .a therapeutic nursery. . . [and] speech therapy." (Ex. 7). On March
15, 1994, Dr. Steven Blaustein, conducted a speech and language evaluation
of E, noted Dr. Fish’s diagnosis, concluded that E was "experiencing
a severe language disorder," and recommended that E’s "involvement in
an applied behavioral therapeutic approach be continued and significantly
expanded" because E was showing progress in eye contact and language
and because such combined language and behavioral programs as E’s had
been "shown to be extremely effective in language disorders." (Ex. D).
Lastly, as a result of an observation of E on April 8, 1994, Albina
Miller, Administrative Director/Evaluator of Parkside, concluded that
E "exhibits significant language and communication skills." She, therefore,
recommended that E attend a language based preschool to develop communication
and social skills and continue behavioral intervention due to his improvement
in his home program. (Ex. 5).
5, 1994, CPSE conducted an IEP review and present were Rosenblum, Miller,
Mr. X, and Marie Perkins, a parent member of CPSE. (R. 00031). Prior
to the meeting, CPSE considered the Blasting and Hirsch evaluations
and discredited the Persky psychological evaluation due to the testing
techniques Persky used on E in conducting her evaluation. (R. 00031-32).
CPSE declined to make an educational recommendation noting that it had
not received the Fish evaluation, medical reports, and other needed
evaluations. Rosenblum wrote to Miller on May 10, 1994 requesting medical
reports, another psychological report, an evaluation from Tomorrow’s
Learning Center and the other programs E was involved in, including
the home based therapy program, and a clarification as to what the appropriate
educational setting was for E since Persky and Hirsch recommended a
language and communication based program while Blaustein and Miller
recommended the continuation and extension of a behavioral program like
the one in which E was already involved. (Ex. 21).
Miller wrote to Rosenblum on June 13, 1994 and concluded that "Nancy
Hirsch, Dr. Steve Blaustein and myself [feel that E] should continue
in the behavioral program that he is currently enrolled. [sic] A center
based program was also recommended by Nancy Hirsch, Dr. Persky and myself
since a behavioral program is not an approved State funded program."
(Ex. F). In a psychiatric evaluation dated July 21, 1994, Dr. Richard
Perry noted that due to E’s slow acquisition of language early on, several
evaluations were done in early, 1994 and therapy was recommended based
on the diagnosis of communication difficulties. (Ex. G). Perry diagnosed
E with an autistic disorder16 and stated that "it is essential
that E continue to be provided with the intensive [ABA] Program that
he is now engaged in. . .[ABA] is extremely labor intensive and must
be continuous throughout the day." (Ex. G).
In a new
psychological and behavioral evaluation dated September 23 and October
23, 1994, Dr. Ira Cohen, Head of the New York State Institute for Basic
Research into Developmental Disabilities, confirmed Perry’s diagnosis
of autism, and similarly recommended "intensive, [ABA]. . .carried out
for a minimum of 40 hours/week with a 1:1 ratio of staff to Eric. Staff
should be well versed in the practice of applied behavior analysis and
modification for persons with autism. Specific social skills to be acquired
using a discrete trials approach as well as incidental learning." (Ex.
In a neuropsychological
evaluation dated October 24, 1994, two post-doctoral interns and Dr.
Cohen concluded again that E was autistic and should continue in the
"intensive and language and behavioral program in which he is involved."
(Ex. H). Lastly, in a letter dated December 8, 1994, Judith Palazzo
of Tomorrow Learning Center, who was supervising E’s home based ABA
program, recommended "[E] needs exposure to learning in a group environment
with peers without handicaps" and noted that "children with autism need
to be taught to participate in group settings. Children ready for inclusion
setting exposure must possess enough receptive and expressive language
skills to function in a group and be void of behaviors which would interfere
with the group." (Ex. A).
23, 1995, CPSE met at AMAC and formulated E’s IEP, based on all of the
evaluations cited above, including medical reports by Dr. Brown and
Dr. Brooks dated August 17, 1994. Present were Rosenblum, Perkins, Mr.
X, Miller, and Blausten. (R. 00036-37). At the meeting, Mr. X described
and requested the continuance of E’s home based ABA program which he
began for E in March, 1994 at a time when E was not yet eligible for
preschool services (E became eligible in July, 1994) and would soon
become ineligible for state provided early intervention programs for
disabled children up to 3 years of age. (R. 00038, 205-206).
formulated an IEP that recommended AMAC, a center based program, five
hours a day, five days a week, with a one-to-one aide and related services
of speech and language in a group of one, twice a week, and speech and
language in a group of five three times a week. (R. 00038-40). The IEP
states that E required a small structured language based program with
"behavior management strategies and group interaction. . .using intensive
ABA in the entire school day with a 1:1 aide for [E]." (Ex. L).
1992, AMAC did not service primarily autistic children or provide an
educational setting but provided after school and Saturday programs
for preschool children who were mentally ill children. (R. 00133). As
a therapeutic nursery, AMAC enrolls not only autistic children but also
probative developmentally delayed children in need of special education.
(R. 00102-103). There is a maximum of seven in a class with a class
ratio of 7:1:1, which is a group of seven with a teacher and an assistant,
and the children are divided in groups based on their ability to relate
and behavioral function. (R. 00099-101). AMAC offers related services
of speech therapy, cooking, music, physical education, and parent training.
(R. 00107-09, 114-15).
22, 1995, Mr. X wrote to Rosenblum to inform CPSE that he rejected the
IEP and requested an impartial hearing if E was not provided the 40
hours of ABA using discrete trial instruction via home placement and
reimbursements for expenses 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).
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).
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.
2. Educational Benefit
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).
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).17 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.
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." Id. at 515.
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. Id. 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).18
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.
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:
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.
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. 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).
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.19 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.
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,20
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.
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,21 the SRO was incorrect in affirming
the HRO finding that the IEP was appropriate because AMAC was the least
restrictive placement for E.
the education of disabled children with non-disabled children,22
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. Id. at 692.
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).
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.
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.
1 ABA therapy
is a form of treatment for autistic preschoolers that was developed
by Dr. Ivar Lovaas at the Princeton Child Development Institute and
consists of breaking down activities into discrete individual tasks
and rewarding the child’s accomplishment. The child eventually learns
to integrate the information and associate instruction with a given
activity. see, Malkentzos v. DeBuono, 923 F. Supp. 505, 509 (S.D.N.Y.
1996), remanded on other grounds, 102 F.3d 50 (2d Cir. 1996).
2 The court
will consider plaintiff’s request for reimbursement, attorney’s fees,
and punitive damages after a decision on the motions to dismiss and
for summary judgments has been rendered.
3 The relevant
sections are as follows:
or guardian shall have an opportunity for an impartial due process hearing
which shall be conducted by the State educational agency or by the local
educational agency or intermediate educational unit, as determined by
State law or by the State educational agency. No hearing conducted pursuant
to the requirements of this paragraph shall be conducted by an employee
of such agency or unit involved in the education or care of the child.
20 U.S.C. § 1415(b)(2).
hearing required in paragraph (2) of subsection (b) of this section
is conducted by a local educational agency or an intermediate educational
unit, any party aggrieved by the findings and decision rendered in such
a hearing may appeal to the State educational agency which shall conduct
an impartial review of such hearing. The officer conducting such review
shall make an independent decision upon completion of such review. Id.
aggrieved by the findings and decision made under subsection (c) of
this section, shall have the right to bring a civil action with respect
to the complaint presented pursuant to , which action may be brought
in any State court. . .or in a district court of the United States without
regard to the amount in controversy. Id. at (e)(2).
originally enacted the Education of the Handicapped Act which in 1990
was renamed to IDEA.
defines a FAPE as follows:
public education" means special education and related services which
(A) have been provided at public expense, under public supervision and
direction, and without charge, (B) meet the standards the [SED], (C)
include an appropriate preschool, elementary, or secondary school education
in the State involved, and (D) are provided in conformity with the individualized
education program required under section 1414(a)(5) of this title. 20
U.S.C. § 1401(a)(18) (emphasis omitted).
a "special education" as follows:
education" means specially designed instruction, at no cost to parents
or guardians, to meet the unique needs of a handicapped child, including
classroom instruction, instruction in physical education, home instruction
and instruction in hospitals and institutions. Id.
6 An IEP
is a written statement for each handicapped child developed by the local
educational agency, teachers, and parents and must include, among other
things, a statement of the child’s present level of educational performance,
statement of annual goals, including short-term instructional objectives,
a statement of specific educational services and the extent to which
the child will engage in regular educational services, and the projected
date for initiation and anticipated duration of such services. 20 U.S.C.
§ 1401(a)(19); 34 C.F.R. § 300.344.
7 As noted
above, § 1415(b)(2) prohibits an employee of a state or local educational
agency involved in the education of disabled children from serving as
the hearing officer. In Holmes v. Sobol, 690 F. Supp. 154, 161
(W.D.N.Y. 1988), the court concluded that the Commissioner was an employee
of SED and, in serving as a hearing officer under this section, most
likely violated plaintiff’s procedural due process rights under IDEA.
8 In Burr
v. Ambach, 863 F.2d 1071 (2d Cir. 1988) the Second Circuit concluded
that the Commissioner, serving as SRO pursuant to 1415(c), was improper
because the statute required appeals to the state level to be impartial
and Commissioner was not impartial due to his extensive responsibilities
and integral involvement with the operation of state-supported schools.
Id. at 1077; see also, Heldman v. Sobol, 962 F.2d 148 (2d Cir.
1992) ("IDEA. . .prohibits the use of biased adjudicators").
9 A suit
against the Commissioner in his or her official capacity generally represents
"another way of pleading an action against an entity of which an officer
is an agent." Brandon v. Holt, 469 U.S. 464, 471-72, 105 S.Ct.
873 and n.21 (1985) (quoting Monell v. New York City Dep’t of Social
Services, 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018 (1978)).
reads in relevant part; "the State educational agency shall be responsible
for assuring that all the requirements of this subchapter are carried
out." 20 U.S.C. § 1412(6).
see, Bruschini v. Board of Education of Arlington Central School
District, et al., 911 F. Supp. 104, 107 (S.D.N.Y. 1995) (Court later
acknowledged "the statute, 20 U.S.C. § 1415 grants [district court’s]
appellate jurisdiction over the decisions of the state educational agency
in IDEA actions")(emphasis omitted). This later decision supports this
courts finding that the earlier case, as well as the other cases cited
by defendant, only consider the issue of whether SED can be reached
through the Commissioner’s action or inaction in suits brought pursuant
to 20 U.S.C. § 1415 despite the Amendment removing the Commissioner
as SRO. They do not consider, unlike the Bruschini case cited above,
whether SED can be held responsible for a decision determined by the
court notes that the term "state" in Rowley is understood to include
local educational agencies which is evidenced by the numerous IDEA actions
brought in federal court against local school districts and boards of
education pursuant to § 1415.
plaintiff alleges in the complaint that the SRO violated his procedural
due process rights in conducting the administrative review, the court
finds that these allegations are unsupported by facts, are naked assertions,
and are not a sufficient basis to subject SED to this action. Contemporary
Mission, Inc., v. United States Postal Service, 648 F.2d 97, 107
(2d Cir. 1981) (complaints containing only conclusory, vague, or general
allegations cannot survive a motion to dismiss). Hence, the court finds
that there are no alleged facts sufficient to show that the State has
not met the demands of the first prong of Rowley. The court will,
therefore, move to the second prong which requires this court to consider
the adequacy of the IEP. see also, Briggs v. Board of Education of
the State of Connecticut, 882 F.2d 688, 691 (2d Cir. 1989).
reads in relevant part; "In any action brought under [§ 1415(e)(2)]
the court shall receive the records of the administrative proceedings,
shall hear additional evidence at the request of a party, and, basing
its decision on the preponderance of the evidence, shall grant such
relief as the court determines is appropriate." 20 U.S.C. § 1415(e)(2).
refers to the administrative record submitted as evidence by plaintiff
and includes, among other things, the transcript of the hearing before
the HR and the HRO and SRO decisions. City defendants submitted no additional
16 In the
New York regulations, autistic student is defined as a "student who
manifests a behaviorally defined syndrome which occurs in children of
all levels of intelligence. The essential features are typically manifested
prior to thirty (30) months of age and include severe disturbances of
developmental rate and/or sequences of responses to sensory stimuli
of speech, of language, of cognitive capacities and of the ability to
relate to people, events and objects." 8 NYCRR 200.1(mm)(1); (R. 00200).
New York statute that was read into the record (R. 00063) provides that
"nothing herein shall preclude an approved program from providing services
in a preschool child’s home." N.Y.Educ.Law § 4410(9)(e).
the HRO discredited Cohen’s recommendation on the grounds that it "seemed
to be tailored to fit the parent’s specific home-based program already
in progress," (R. 00309), this court finds no support for this characterization.
As a matter of fact, Blausten at the hearing testified on the impeccable
credentials of Cohen, stating that she has known Cohen for fifteen years,
that he was currently her medical director and was an expert in the
area of autism. (R.00097, 126).
court is not ruling here that the 25 hours (as opposed to the 40 hours
recommended by Dr. Cohen) per week of ABA instruction is sufficient
to meet E’s needs. The court notes, however, that although IDEA does
not require a state to provide services which maximize each child’s
potential, Rowley, 458 U.S. at 198, and only requires states to provide
a "floor of opportunity" consisting of specialized education and related
services designed to provide some benefit to the disabled child, CPSE
submitted no evidence at the hearing showing that 25 hours a week was
appropriate or provided a benefit. As a matter of fact, Blausten testified
that AMAC was not providing the 40 hours per week recommended by Cohen
because state law limited center based preschool programs to 25 hours
per week. (R. 00124-125). However, the Report on Preschool Special Education
Issues in New York State published by SED and dated September, 1995,
addressing parental requests for extensions of special education services
beyond 25 hours per week, stated that "there is currently no maximum
level established for preschool special education programs and services.
. .Our Office of Counsel advised that it is inconsistent with Federal
Law to establish an absolute maximum level for the provision of FAPE."
(Ex. N); (R. 00085-87).
20 In a
letter that was not submitted to CPSE for review but was submitted by
plaintiff into evidence at the hearing, Dr. Allison Lorys wrote:
that the committee has recommended that [E] be placed at [AMAC], that
the student/faculty ratio at AMAC is 7:1:1 and that [CPSE] has also
recommended that [E] have a 7:1:1: aide while at AMAC to continue his
receiving discrete trial instruction.
It is my
opinion that the recommendation is based upon an incorrect understanding
of the discrete trial methodology. Discrete trial instruction on a 1:1
basis is a repetitive educational method which requires a focus on a
single child and is inconsistent with class instruction. If [E] is receiving
discrete trial instruction, he will be unable to participate in class
activities (and indeed they may serve as a distraction which would reduce
the efficacy of the instruction). . .While classroom instruction can
be used for socialization, this is generally a secondary goal for students
such as [E].(Ex. S).
21 As the
court has already noted, the IEP is the modus operandi of IDEA and has
to be accurately formulated to reflect the child’s current level of
development and needs. City defendant’s cite Roland M. v. Concord School
Committee, 910 F.2d 983, 992 (1st Cir. 1990) to argue that
E’s IEP was appropriate despite the incorrect short term goals because
it was based on the earlier evaluations and was therefore, a "snapshot"
of E’s development at a particular time. The court finds this argument
weak because CPSE had the evaluations before them which adequately diagnosed
E as autistic and made recommendations based thereupon. The IEP cannot
be a "snapshot" of E’s development at that point in time if CPSE ignored
or failed to give due weight to these evaluations. At the January, 1995
CPSE review, the Committee was aware of the marked improvement E had
made since undergoing ABA, however, some of the short term goals in
the IEP were objectives that E had already accomplished as was indicated
in the expert evaluations. (R. 00224-228). Moreover, at the hearing,
Mr. X submitted a voluminous detailed log of E’s progress of increased
vocabulary, game playing with others, and following of instructions
since the inception of the home based program. (Ex. P); (R. 00435-1599).
There was, therefore, ample opportunity in this case to construct an
IEP that was reflective of E’s level of development.
provides that states must assure that:
the maximum extent appropriate, handicapped children,. . .are educated
with children who are not handicapped, and that special classes, separate
schooling, or other removal of handicapped children from the regular
educational environment occurs only when the nature or severity of
the handicap is such that education in regular classes with the use
of supplementary aids and services cannot be achieved satisfactorily.
20 U.S.C. § 1412(5)(B)(emphasis omitted).