Rutgers Univ. School of Law - Camden. OAL Dkt. eds00863-02

D.C., born on July 26, 1989, completed his sixth grade education in June 2002 in the school system operated by the Bernards Township Board of Education (BOE). D.C. is cognitively impaired and the BOE classified him for special education services and prepared and implemented individualized education programs (IEPs) for him. The BOE contends that it has provided D.C. with a free appropriate public education (FAPE) in the least restrictive environment (LRE). However, S.C., D.C.'s mother, contends that D.C.'s IEP should be amended primarily to remove him from the in-district mainstream setting and place him at an out-of-district setting, such as the Early Childhood Learning Center (ECLC) in Chatham, New Jersey.

For the reasons set forth below, I find and conclude that the BOE has not proven by a preponderance of the evidence that it is providing D.C. with FAPE in the LRE. D.C.'s IEP should therefore be amended to provide for an out-district placement at ECLC.

In January 2002, S.C. o/b/o D.C. filed a request for due process with the Department of Education. The case was transmitted to the Office of Administrative Law (OAL), where it was filed on March 11, 2002. The BOE's Answer and Affirmative Defenses were filed on April 15, 2002. Between April and June 2002 many hearings were conducted in the OAL's Mercerville location. Thereafter, the attorneys submitted written summations and the record closed with the receipt of the last submission received.

D.C. is cognitively impaired and has a Verbal IQ of 67, a Performance IQ of 58 and a Full Scale IQ of 60. Despite the fact that he has completed the sixth grade, D.C. is currently on a first grade performance level. In addition to mental retardation, D.C. has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), which causes him to be highly distracted, and Generalized Anxiety Disorder, which is manifested by episodes of dizziness, rapid heart rate and nausea. D.C. also engages in socially inappropriate behavior, is very impulsive and has trouble with his speech.

D.C. has been receiving special education and related services since he was twenty months old due to documented developmental delays that impact motor, social understanding and cognitive skills. Around the age of three, D.C.'s family moved to Bernards Township, where the Bernards Township Child Study Team (CST) evaluated D.C. and found his development to be significantly impaired. The CST recommended that D.C. be placed in the pre-school handicapped program.

Since that time, D.C. has been placed within self-contained in-district programs. He attended the BOE's Liberty Corner Elementary School through third grade, and was transferred to Cedar Hill Elementary School after the district's reconfiguration of school boundaries, where he completed his elementary education to the fifth grade. In the sixth grade, D.C. attended the District's William Annin Middle School and was enrolled in the Functional Life Skills Program.

During D.C.'s fifth grade year, he was re-evaluated to plan for his transition out of elementary school and into the middle school. D.C.'s parents were concerned about this transition to a much larger environment with over 1,000 students. Specifically, they were concerned that D.C.'s socially inappropriate behavior and cognitive impairment would put him at risk to be taken advantage of by other students. D.C.'s parents were also concerned about the fact that the middle school did not have an existing functional life-skills program, but rather were just developing a program that would start when D.C. entered the sixth grade. These concerns were reflected in the 2001-2002 IEP, which states that D.C.'s parents want an out-of-district placement at a school such as ECLC.

In the spring and summer of 2001, prior to D.C.'s entering the middle school, the CST, under the direction of Supervisor of Special Education, Jean O'Connell Ulichny, created a Functional Life Skills Program. This program was the BOE's response to federal and state mandates under the IDEA and the New Jersey Administrative Code that favored mainstreaming of special education students when appropriate.

Ms. O'Connell Ulichny, who had previously developed a life skills program for Berkeley Heights, testified that in-district placements of cognitively impaired students is favored because it fosters independence, whereas out-of-district placements generally do not prepare such students for interacting with the general population. Ms. O'Connell Ulichny testified that schools such as ECLC allow students to feel more comfortable, but does not prepare them for the "real world". She testified that the Functional Life Skills Program developed for D.C. at the middle school was working well because it provided a mainstreaming component that allowed D.C. to participate in class trips and extracurricular activities with the general student population.

Ms. O'Connell Ulichny only occasionally observed D.C. first-hand. Most of her knowledge of D.C.'s progress was based on information provided to her by D.C.'s teacher (Amy Ryan) and case manager (Rita Jordan). Her testimony, therefore, is not given much weight because this case is about D.C.'s specific progress at the middle school, not a general critique of the Functional Life Skills Program developed by her. Although Ms. O'Connell Ulichny was a credible witness, she did make some troubling statements with respect to D.C.'s socialization at the middle school. For instance, she testified that an incident in which another student pushed D.C. for inappropriate behavior was "good" in a way because it helped D.C. learn. She also made the remarkable statement that D.C. could run for student council at the middle school.

Ms. O'Connell Ulichny worked with D.C.'s case manager, Rita Jordan, and his classroom teacher, Amy Ryan, to craft a Functional Life Skills Program that met D.C.'s special needs. This life skills program was intended to essentially implement D.C.'s IEP that was developed in the spring of 2001. This IEP included D.C.'s Present Levels of Educational Performance (PLEP), which had been prepared by his self-contained special education teacher and his mainstream science teacher. Both teachers indicated in the IEP that although D.C. had made progress, he was socially immature, had no peer relationships, and was laughed at by classmates. In addition, the Educational Evaluation conducted by the CST Learning Disabilities Teacher Consultant, Helen Palladino, noted the difficulties D.C. experienced in school. Consistent with Ms. Palladino's findings were those of Dr. Grace Zambelli, the school psychologist. She noted in her evaluation that D.C. "will have a great deal of difficulty in meeting the verbal, social and organizational demands of a mainstream setting."

Despite the concerns reflected in the 2001-2002 IEP and related evaluations regarding D.C.'s social behavior, the CST recommended that D.C. go to the much larger in-district middle school for sixth grade. The parents' request for placement at ECLC was denied and, accordingly, D.C. was enrolled at the middle school for sixth grade.

The school attempted to address concerns about D.C.'s safety by transporting him to school alone on a van, having an aide meet him when he departed the bus, and having an aide "shadow" him in the hallway on the way to homeroom and during the lunch period. For the most part of the day, D.C. was taught the primary classes in a self-contained classroom with about three other special education students. He was also taught some classes in a classroom with the general population and his homeroom was likewise part of the general population of students. D.C. was also provided social skills training.

The BOE's witnesses, including Ms. O'Connell Ulichny, Ms. Ryan and Ms. Jordan all testified that D.C. has made progress at the middle school in his classes and that he has socially adjusted to the middle school. They relied upon the progress reports and 2002-2003 IEP in support of their contention that D.C. has progressed socially and academically at the middle school. They contend that he has made friends at school, enjoys extracurricular activities and class trips and has learned important social skills through interactions with the community. Being in a mainstream environment fosters independence according to the BOE, whereas an out-of-district placement would restrict D.C.'s growth. S.C., on the other hand, testified that the Functional Life Skills Program at the middle school has not provided D.C. with a sense of independence, but rather has heightened D.C.'s dependence on others.

Ms. Ryan, D.C.'s classroom teacher, has the most interaction and first-hand observation of D.C. Ms. Ryan has a degree in special education and has a long history of teaching cognitively impaired students. Her employment with the BOE started in September 2001. She testified that D.C. has three other students in his self-contained class and that the sixth grade as a whole had about 350 students. Ms. Ryan was concerned about D.C.'s safety at the school and wanted him to feel comfortable there. She testified that that she personally oversaw the transition process to sixth grade for D.C.

According to Ms. Ryan, D.C. developed friendships with the general population of students during homeroom, although Ms. Ryan stated that she did not know the quality of those friendships. D.C. also was friendly with the three other special education students in his self-contained class. She stated that D.C. interacted well with the general population during class trips and extracurricular activities. Ms. Ryan testified that D.C. started the year very nervous, but that he progressed during the year and felt more confident and independent. Ms. Ryan stated that D.C. still, however, would occasionally act up in an adolescent manner and engage in inappropriate social behavior. She testified that the social skills program and class trips helped him interact in the community. These trips included visits to a grocery store, pet-grooming business and a shelter, among many others.

Ms. Ryan cited the 2002-2003 IEP and Progress Reports in support of her statements that D.C was making progress under the Functional Life Skills Program. R-1. Ms. Ryan also noted that D.C. picked at his arms and legs less as the year went on - an indication that he was not as anxious in school. She testified that D.C. is relaxed and enjoys being at school. She cited a note that D.C. wrote stating that he was "safe and happy" at school.

Ms. Ryan appears to be a teacher who truly wants to help her special education students. However, Ms. Ryan's testimony was undermined by her demeanor during the hearings. She appeared unstable many times during the hearing and needed many breaks during her testimony. She would attempt to answer the questions before the questions were finished and appeared confused on many occasions. For instance, she had difficulty interpreting and explaining various areas of the Progress Reports and 2002-2003 IEP. Her testimony was also undermined by the fact that she admitted that when D.C. did not take his medication that he would become disoriented and anxious. This medication, Paxol and Ritalin, was prescribed for D.C. during the course of the 2001-2002 school year in an attempt to address his ADHD and anxiety disorder. Moreover, Ms. Ryan did not have any baselines on D.C.'s behaviors and, thus, was unable to verify that his anxiousness lessened during the school year.

Also testifying on behalf of the BOE was Ms. Jordan, D.C.'s case manager. Ms. Jordan sees D.C. about 3 to 4 times per week. Ms. Jordan testified to the progress that D.C. made over the course of the year. Her testimony was similar to Ms. Ryan's in this regard. Importantly, Ms. Jordan did admit that more social skills courses should be taught to D.C. During the year, D.C. only received formal social skills training twice per month - an amount that Ms. Jordan feels is deficient since social interaction is D.C.'s primary area of deficit. Ms. Jordan testified credibly, but the weight of her testimony is lessened by the fact that she did not have a lot of first hand observations of D.C. during the day and in his interaction with the general population of students.

In sharp contrast to the testimony of the BOE's witnesses, was the testimony of S.C. and Dr. Edna Barenbaum, an educational consultant hired by S.C. Dr. Barenbaum was a highly credible expert witness who has many advanced degrees, including a Ph.D. in Special Education and Educational Psychology. She has a great wealth of experience in life skills issues for the cognitively impaired, IEPs and special education programs. Although she only observed D.C. on three occasions at the school, I find that her testimony was very persuasive with respect to the appropriateness of D.C.'s placement at the middle school.

Dr. Barenbaum's first observations of D.C. at the middle school occurred on October 10 and 17, 2001. After her observation, she prepared a detailed report that concluded that the BOE was failing to provide D.C. with an appropriate education under the Individual with Disabilities Education Act (IDEA). According to Dr. Barenbaum, the middle school environment was a restrictive environment for D.C. because it did not provide him with an opportunity to develop appropriate social skills. For instance, D.C. spent the majority of his school day isolated from the mainstream population in a self-contained class with only three other special education students. Also, while in the mainstream environment, D.C. was highly supervised and shadowed, which was preventing him from learning necessary independent living skills. Dr. Barenbaum also concluded that the academic component of the program failed to focus on functional life skills and that the instruction provided in the mainstream environment was far beyond D.C.'s present levels of academic functioning. For these reasons, Dr. Barenbaum recommended that D.C. be placed in a smaller, more nurturing environment with other cognitively impaired students, where he could develop more confidence and learn social and life skills.

S.C. again requested Dr. Barenbaum to observe D.C. in the spring of 2002 in order to gather current information and determine if D.C. had made any progress at the middle school. On May 22, 2002, Dr. Barenbaum again went to the middle school to observe D.C. Importantly, Dr. Barenbaum observed that D.C.'s level of anxiety had increased dramatically since she last saw him in October. She concluded that the middle school was having an adverse effect on D.C. by increasing his anxiety level. Her report states that this "increased anxiety is of major concern and a threat to his physical well-being." She testified that she noticed physical changes in D.C. in that he was tense, rigid and moved very quickly.

Dr. Barenbaum also testified to the isolation that D.C. feels at school each day because for most of the day he is only with three other special education students. When he is with the general population, Dr. Barenbaum did not notice D.C. interacting or socializing with others. She testified that he merely coexists with the general population. She feels this isolation is stunting his development. Dr. Barenbaum was also critical of the functional life skills program and did not think it was benefiting D.C. While noting that Ms. Ryan was well intentioned, she also criticized her teaching skills. Once again, Dr. Barenbaum concluded that D.C. needed to be transferred to an out-of-district school that is a less restrictive environment "so he can develop a positive self image."

Dr. Barenbaum testified that ECLC would be an appropriate placement for D.C. She noted that ECLC has a fully functional life skills program that provides daily social skills instruction and behavioral intervention plans that are individualized to meet the needs of the particular student. This type of program, according to Dr. Barenbaum, would provide D.C. with confidence in both social and academic settings. There he could feel more in control and have a sense of contributing to a larger group.

S.C. testified at the hearing and expressed her concerns about D.C. continuing at the middle school. She cited a concern for his safety and physical well being due to the stress and anxiety D.C. experiences at school. She also expressed concern with respect to the academic instruction being provided to D.C.

S.C. testified that D.C. does not have any true friendships. There is nobody from the school that he interacts with regularly during after-school hours. She is concerned that for the most part of his day D.C. only interacts with three other special education students. Like Dr. Barenbaum, she would prefer that he be with a larger group of similar peers so that he could develop more socialization skills, participate in more activities and make true friends. This, according to S.C., would provide D.C. with more confidence and self-esteem. S.C. feels that the middle school environment is too restrictive for D.C. and causes him to feel dependent on others and less confident.

She is also concerned about the anxiety and stress caused to him by the middle school. She testified that during the year an episode occurred between D.C. and a non-disabled male student when D.C. went to the bathroom without an aide. While in the bathroom stall, D.C. looked underneath the partition and saw another student. The other student became upset and a physical altercation occurred. S.C. said that this incident increased D.C.'s anxiety and highlighted the fact that he should be in a safer environment given his occasional socially inappropriate behavior.

S.C. refuted the weight of Ms. Ryan's testimony with regard to a note that D.C. wrote saying that he was "safe and happy." S.C. feels that this note was forced and a result of the fact that D.C. has a desire to please adults.

S.C. testified to the fact that D.C.'s anxiety increased over the course of the school year. She stated that D.C. continued to pull his hair, pick at his hands and scabs, and stammer in his speech. She said that during the school year he occasionally went to the school nurse due to panic attacks and wanted to go home. S.C. testified that D.C. had about 10 to 12 such attacks wherein his heart rate would be highly elevated for about an hour. He was put on a heart monitor during the school day to help determine the cause of the anxiety. Subsequently, he was diagnosed with generalized anxiety disorder and placed on Paxol.

S.C. denied that her divorce or other factors were the cause of D.C.'s anxiety. She testified that there is no question that D.C. needs a less stressful school environment to allow him to gain more confidence and independence.

S.C. was a credible witness who genuinely feels that D.C. is not getting an appropriate education. She is very involved in the IEP process and knows in detail how D.C. is functioning and adopting at school. Being a hands-on, caring mother, she also is the one who best knows what D.C. needs in order to obtain a meaningful education. She is realistic in the sense that she does not expect D.C. to receive the best education under IDEA, but rather is simply asking that he be educated in an appropriate environment that is not stressful to D.C.

The IDEA, New Jersey statutes and implementing regulations require local boards of education to identify and classify children with disabilities and to provide to them an FAPE. See 20 U.S.C.A. §1412; N.J. Const. Art. VIII, § IV, ¶ 1; N.J.S.A. 18A:46-8, -9; N.J.A.C. 6A:14-1.1 et seq.

(i) with mental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance (hereinafter referred to as "emotional disturbance"), orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and

An FAPE is special education with related services, provided at public expense and under public supervision and direction, without charge and meeting the standards of the state educational agency. The FAPE should be provided in conformity with an IEP and should include an appropriate preschool, elementary, or secondary school education. 20 U.S.C.A. § 1414(a)(5), § 1401(a)(18).

An IEP should set forth measurable annual goals and short-term objectives or benchmarks and should describe an integrated, sequential program of individually designed instructional activities and related services necessary to achieve the stated goals and objectives. The IEP should be tailored to the unique needs of the disabled child. See N.J.A.C. 6A:14-1.1 to -10.2; N.J.A.C. 6A:14-1.3. The IEP must be reviewed and, if appropriate, revised periodically, but not less than annually. 20 U.S.C.A. § 1414(a)(5).

A board of education is required to educate a child with an educational disability in the least restrictive environment possible and, when an IEP does not describe specific restrictions, the student shall be educated in the school he or she would attend if not disabled. N.J.A.C. 6A:14-4.2(a)(7).

To comply with federal law, a local school board must provide a personalized education program and sufficient support services to confer some educational benefit on the handicapped child. Hendrick Hudson Dist. Bd. of Educ. v. Rowley, 458 U.S. 176, 102 S. Ct. 3034, 73 L. Ed.2d 690 (1982). New Jersey has adopted the Rowley standard.

The IDEA guarantees "a basic floor of opportunity [consisting] of access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child" and which are "reasonably calculated to enable the child to . . . advance"; however, maximizing the potential of the handicapped student and a particular outcome are not guaranteed. Rowley, supra, 458 U.S. at 176, 181, 189-90, 201, 203-04, 102 S. Ct. at 3034, 3038, 3042, 3049, 73 L. Ed. 2d at 690, 696, 710-11; Burlington Sch. Comm. v. Massachusetts Dep't of Educ., 471 U.S. 359, 373, 105 S. Ct. 1996, 85 L. Ed.2d 385, 397 (1985); Lascari v. Board of Educ. of the Ramapo Indian Hills Reg. High Sch. Dist., 116 N.J. 30, 47 (1989).

Determination of whether a handicapped child is receiving sufficient educational benefits to satisfy the requirements of the IDEA can be difficult and there is no one test or analysis for such a determination. Rowley, supra, 458 U.S. at 201-02, 102 S. Ct. at 3048-49, 73 L. Ed. 2d at 708-09; see also Angevine v. Jenkins, 17 E.H.L.R. 444, 445 (D.D.C. 1990) (citing Rowley).

It has been held that, to determine whether an FAPE was provided, the appropriate standard is whether the IEP offers the opportunity for "significant learning" and "meaningful educational benefit." Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 247 (3d Cir. 1999). Education in this sense encompasses more than just academic learning. Indeed, courts have recognized that education is a broadly defined term that encompasses academic, social and emotional needs. See Kruelle v. New Castle County School District, 642 F.2d 687 (3d Cir. 1981).

The IDEA and New Jersey's regulations create a strong preference for mainstreaming and educating a disabled student in his regular neighborhood school. Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036 (5th Cir. 1989); Oberti v. Board of Educ. of the Borough of Clementon Sch. Dist., 995 F.2d 1204 (3d Cir. 1993). However, the Court in Oberti recognized that there are instances when educating a student with disabilities with his/her non-disabled peers cannot be satisfactorily achieved in the mainstream. In reaching its holding, the Third Circuit adopted a two-part test for determining whether a school is in compliance with the IDEA's mainstreaming requirement. First, the Court must ask, "whether education in the regular classroom, with the use of supplementary aids and services, can be achieved satisfactorily." Id. at 1215. Second, "if the Court finds that placement outside of the regular classroom is necessary for the child to benefit educationally, then the Court must decide "whether the school has mainstreamed the child to the maximum extent appropriate, i.e. whether the school has made efforts to include the child in school programs with non-disabled children whenever possible." Id. at 1216.

Consistent with the findings of fact, especially as demonstrated by Dr. Barenbaum and S.C., the 2001-2002 and 2002-2003 IEPs prepared by the BOE have not provided D.C. with appropriate special education services, an FAPE, and have not conferred meaningful educational benefit on D.C in the LRE. The BOE is not providing a meaningful educational benefit to D.C. because he is not making progress socially, emotionally or academically. In fact, it appears that the stressful environment D.C. is subject to at the middle school is causing physical, social and emotional problems and may even be making him more dependent. Academically, despite the progress reports and IEP, I do not find that progress was made based on the credible testimony of Dr. Barenbaum and lack of credible testimony from Ms. Ryan. The fact that he is only with three like peers for most of the day limits his ability to make friends and make contributions in activities such as sports. On the other hand, the mainstreaming part of D.C.'s day is too overwhelming given the size of the school and D.C.'s lack of social skills.

Based on the above findings of fact, the BOE cannot, by way of placement in its middle school, provide meaningful educational benefit to D.C. even with supplementary aids and services. Accordingly, placement in the LRE at a special education day school such as ECLC is appropriate. Such placement will allow for opportunities for D.C. to make contributions to groups of similar peers, gain confidence and increase his independence. At ECLC or a like school, D.C. will also have the opportunity to be part of community programs that will provide mainstreaming benefits. Therefore, D.C.'s IEP should be amended to provide for placement at ECLC or a similar school.

D.C.'s IEP should be further amended to comply with the requirements of N.J.A.C. 6A:14-1.1 et seq. Specifically, the IEP should be amended to address D.C.'s individual strengths, weaknesses and needs. Also, the IEP must include goals and objectives that are clear and measurable. It was apparent from the credible testimony of Dr. Barenbaum that the IEP was deficient in this regard. Even the BOE's own witnesses had a difficult time understanding and articulating what the goals and objectives were.

This decision is final pursuant to 20 U.S.C.A. §1415(i)(1)(A) and 34 CFR 300.510 (2000) and is appealable by filing a complaint and bringing a civil action either in the Superior Court of New Jersey or in a district court of the United States. 20 U.S.C.A. §1415(i)(2), 34 CFR 300.512 (2000). If either party feels that this decision is not being fully implemented, this concern should be communicated in writing to the Director, Office of Special Education Programs.