Rutgers Univ. School of Law - Camden. OAL Dkt. eds00873-02

In this matter R.S., the parent of A.S., seeks the reversal of the manifestation determination made by respondent, the South River Board of Education (hereinafter "District") as well as the provision of a personal aide during all academic, as well as unstructured periods during the class day, as well as development and implementation of a behavior management plan, and compensatory education.

This matter commenced on March 8, 2002, at which time, the matter was transmitted to the Office of Administrative Law (hereinafter "OAL") as a contested case pursuant to the provisions of N.J.S.A. 52:14B-1 through -15 and N.J.S.A. 52:14F-1 through -13. The first scheduled hearing date was agreed by the parties to be April 15, 2002, at the OAL, Trenton, New Jersey. The matter commenced on that date. A telephone case management conference was conducted on May 21, 2002 after respondent's attorney requested that the scheduled date of May 13, 2002 be changed since he was then on trial in Middlesex County on that date. The agreed upon continued hearing date was June 11, 2002, but was adjourned at the mutual request of the parties in order to anticipate the procurement of expert reports in the matter. By agreement, the matter was continued and heard on August 14 and August 21, 2002, the date of August 15, 2002 having also been offered to the parties but rejected by respondent's counsel, who was then scheduled to appear in a special drinking driving court session at the Sayreville Municipal Court where he is prosecutor. The offered date of August 20, 2002 was also adjourned at the request of respondent's counsel, who was unavailable. The date of September 11, 2002 was offered but not scheduled due to the unavailability of petitioner's counsel. Similarly, the offered date of September 25, 2002 was not scheduled due to the vacation of respondent's counsel. The matter continued to be heard on October 31, December 4, and December 12, 2002, as well as January 22, February 3, and March 17, 2003.

The basic facts in this matter are not in dispute. A.S. is the youngest of three children born to petitioners R.S and L.S. He was born on April 10, 1995 and is currently in the second grade in the respondent's school district. He has been classified as eligible for Special Education and Related Services based upon the category of Specific Learning Disability.

The petitioner parent and his wife L.S. initially asked for an evaluation by the District on September 22, 1998, relative to his matriculation in the pre-school disabled class (P-10). At the time, it was noted by the Child Study Team's Psychologist that the parents were concerned about A.S.'s speech and behavior. However, as a result of the initial evaluation, the Child Study Team (hereinafter "CST") determined, on December 2, 1998, that, since he was then functioning at or above age appropriate levels, he was not classified as "Eligible for Special Education Services" (P-15). Subsequently, the parents furnished to the District a neurological evaluation performed by Dr. Evaline Traeger, dated January 21, 2000, which outlined A.S.'s history of behavioral difficulties (P-16).

As a result, the CTS determined that A.S. was classifiable as "pre-school disabled" and referenced the neurological evaluation that A.S. was having behavioral difficulties which was thought to be consistent with the diagnosis of Attention Deficit/Hyer Active (hereinafter "ADHD") combined type. They developed an IEP on February 18, 2000 (P-1). Further, according to the IEP, he was placed in the pre-school disabled class five days a week and provided with speech and language therapy, physical therapy/occupational therapy, and small group instruction with a classroom aide as positive reinforcement.

However, on or about February 23, 2000, the CST recommended that A.S.'s pre-school disabled morning class be changed to an afternoon class since his ability levels were superior to the students in the morning class (P-18). The parents were never told that the change from the morning to the afternoon class would result in him no longer receiving occupational or physical therapy.

He commenced his matriculation in the first grade in September 2001. By October his behavior started to deteriorate. On December 18, 2001, he engaged in an unusual act when he allegedly climbed on top of a 15 foot tall stonewall at the school, at which he placed himself in a dangerous situation. Later that month, on January 25, 2002, A.S. was involved in another incident in which he became very upset and "trashed" all the furniture and furnishings in his classroom as well as the other pupils' belongings and clothing. At one point he went into a tirade, became demonstrative and violent with the school principal, and then threw himself on the ground. The manifestation determination review hearing was conducted on February 28, 2002 (R-16) in which the disciplinary actions which were reviewed included him having fought on the school playground during lunch recess, striking a staff member, and insubordination. The CST concluded that: "[A.S.'s] classification of SLD is not a result of his behavior. He did understand the consequences of his behavior. The Child Study Team has repeatedly asked for a re-eval but the parents are not in agreement. The position for an aide was posted but there has been no response to date. In summary, his classification of SLD is not a result of his behavior."

As a result of an agreement reached between the parties at the first scheduled due process hearing date of April 15, 2002, the parties agreed that two outside independent evaluations were to be preformed on A.S. As a result, the District selected two experts from a list offered by petitioner, which reflected experts who are employed by clinics and/or agency specifically approved to perform evaluations by the New Jersey Department of Education. Consequently, the psychiatric evaluation was completed by David A. Gallina, M.D., on May 5, 2002, as a result of which he concluded that A.S. suffers from Attention Deficit Disorder with Hyperactivity as well as a Seizure Disorder, as well as other deficits which are set forth in his report (P-29 at page 9). Dr. Gallina recommended that A.S. be classified as "Other Health Impaired". He recommended a behavior modification program in which he would receive one to one attention in a classroom and also be exposed to teachers who are skilled in the use of behavior modification techniques.

A psychological evaluation was conducted by Joseph Plasner, Ph.D, on A.S. July 1, 2002. In his report, (P-28), Dr. Plasner identified 13 behaviors which either occur in A.S. on a daily basis at various times or which occur continuously throughout the day. They included the fact that A.S.: 1.) Disrupts the work of others; 2.) Has difficulty attending to academic tasks; 3.) Demonstrates sudden or dramatic mood changes; 4.) Demonstrates facial expressions of sadness; 5.) Does not obey the teacher's directives; 6.) Fails to consider consequences of his own behavior; 7.) Seems unwilling to communicate feelings; 8.) Seems upset or afraid of new situations; 9.) Engages in excessive body movements; 10.) Has difficulty recognizing work materials; 11.) Exhibits off-task behaviors; 12.) Demonstrates inappropriate physical or verbal responses to other students; 13.) Responds impulsively. His diagnosis was that A.S. suffers from Attention-Deficit/Hyperactivity Disorder, combined type, Neurological Dysfunctioning Manifested as Seizure Disorder, and an Adjustment Disorder with Mixed Anxiety and Depressed Mood. Among other things, Dr. Plasner recommended that A.S. receive a well thought-out Behavioral Intervention Plan (BIP) to be worked out in concert with the services of a Special Education teacher's aide who might help to redirect him. Further, the aide should work with the school psychologist to implement the behavior plan, behavior strategies and contracting in order to develop pro-social behaviors.

Dr. John J. Marcianti, Jr., is the Director of Special Education for the District, which role he has held for two years. As such he has been the supervisor of the child study teams and the teachers involved with children with special needs since October 2001. As of October 2002, he was aware that A.S. has numerous problems relative to running out of the classroom, which necessitated his teachers chasing after him. He instructed his staff not to challenge A.S. because it might be viewed as being a game. Those events occurred between October and December of 2002. At the same time, A.S. refused to go out with the resource room teacher (Mrs. Teitler) who was similarly told by him not to press the issue or place demand upon him. In December 2002, the school psychologist observed him at the top of a 15-foot wall outside on the school grounds. Due to the winds, he was almost blown off the wall. A.S.'s mother, L.S., was called during the course of that crisis and she caught him as he lost his balance off the wall. This situation created a huge safety issue regarding A.S. As a result, after the Christmas vacation, Marcianti called for a meeting in order to further evaluate the child's needs. He was aware of the fact that A.S. had been previously classified out of the pre-school program as having been Specific Learning Disabled ("SLD") which meant that he was classified as being eligible for Special Education needs. This classification took place prior to his entry into the kindergarten.

As a result of his concerns, a re-evaluation plan meeting was held with the parents and the school psychologist at which time they thought that they needed a re-evaluation. The parents were not in agreement at the time. He admitted that the District did not pursue due process but maintained that it did so because it did not want to be contentious. As a result, they accepted the parents' preferences and, accordingly, they acquiesced to those desires. He acknowledged that it was not a "working relationship," even though the parents' assurances were to the contrary. He noted that the parents had no real understanding of what they really wanted at the time. Yet, the District did not pursue it's own instincts along those lines.

Shortly thereafter, there was an incident in the classroom after A.S. had been at recess in the presence of his mother. At that time, A.S. got very angry and turned over his desk. The aides have been told not to challenge him. He then refused to go to gym and proceeded to turn over all the desks and chairs. He was initially observed by an aide who then summoned the principal. When the Principal called for A.S., he proceeded to throw all the students' coats all over the floor. He then insisted he wanted to go to the gym and rushed across the room to head butt the Principal. At that time he squeezed pass him ran to the gymnasium. Marcianti arrived at that time and saw the upheaval in the classroom. He was then told that A.S. nonetheless acted appropriately in the gym. At the end of the day Marcianti helped the teacher re-right the room. With his background in education for twenty years and having had background as a psychologist, he felt that it was appropriate to keep the other students out of the classroom until it was restored to its former condition. Once that was accomplished, the class was then dismissed. It is at that point that the CST requested a evaluation plan meeting. A.S. was suspended for five days as a result of that incident. The re-evaluation plan meeting was held within five days of the incident with the father present. At the time the CST re-insisted for re-evaluation since the classification of SLD was not how accurate. The parents refused, however. Marcianti advised that the District was going to due process. He characterized the meeting as being very contentious at the time. Two days later, the petitioner's attorney advised of his representation on behalf of the petitioners, at which time he requested mediation and the opportunity to have a behavior specialist brought into the matter. The District agreed to the mediation.

He noted that the District had previously offered a behavior modification plan in approximately December 2001, which the family had rejected. In is estimation, it was similar to one which had been proposed by the parents' own expert, Dr. Michael Selbst which they had shared with the District. Instead of insisting upon the more comprehensive behavior modification plan which the District had suggested, it acquiesced once again and allowed for a simplistic one to be instituted at the parents' preference. The parents also indicated that they did not trust the elementary school's CST at the time. They also refused the secondary level CST from the District. Petitioner's attorney stated that a behavior specialist would be available but that did not occur until approximately February 20, 2002, which was several weeks after the initial phone call advising the District of same. At that time, the behavior specialist, Dr. Selbst, became part of the ongoing dialog in the matter.

However, several incidents occurred in the interim before the introduction of Dr. Selbst on the scene. A.S. persisted in striking adults. Further, on February 25 or 26, 2002, A.S. engaged in attacking other pupils during the lunch period. In one case, he choked one of his fellow students at lunch and became very destructive generally throughout the luncheon period. At that time the Principal wanted to suspend the child. As a result, Marcianti met with the CST to consider a manifestation hearing. They discussed his disabling condition and his classification. He told his CST to look at A.S.'s behavior to see if it was a reflection of his conduct. It was his opinion that A.S.'s SLD did not contribute to his behavior on that occasion. They also did not believe that his impulsivity would continue over time. They walked into the meeting with a conclusion about his behavior verses a classification, or as he corrected it verbally at the due process hearing, the child's, disabling condition. The result was it was not a very pleasant meeting. The CST was very upset with the treatment that they received from A.S.'s father, especially as it applied to the learning disabilities teacher. In fact, the learning disabilities teacher was so upset that she wrote the report backwards due to her upset at the meeting. She was subsequently told to contact the parents and re-write it correctly.

Regarding the need for an individual aide, he acknowledged that the parents had requested an individual aide in approximately December 2001. However, the CST rejected it at the time and, in it's place, proposed its own version of a behavior modification plan, which, as indicated hereinabove, was rejected by the parents at the time. The parents' much weakened version was implemented instead. He noted that after A.S. was served his five day suspension the CST did agree to a luncheon aide who remained in that position for approximately three to four weeks until she had to leave her employment in order to take care of her own father. The District never replaced her. But, at the same time, they noted that there were also no other behavior problems generated by A.S. from that point forward. At the same time, A.S. began to go with the resource room teacher and began to do more work. He even went with the occupational therapy instructor once or twice.

By the end of the year his bolting actions from his classroom had subsided to the extent he would not run around in the building as he had in the past. Instead, although he ran out he would stay outside classroom the door. The Selbst behavior modification report was issued in April 2002, at which time Marcianti ordered the CST to implement it as of May, 2002. However, he understood that the classroom teacher and the parents had purportedly agreed for it to start in the second grade instead. He knew that it was not implemented and afforded no explanation in that regard. In-school counseling was rejected by the parents. As a result of a receipt of the psychiatric and psychological reports agreed to by the parties, the District became aware of the medication, which A.S. was on for the first time. It was his opinion that the use of those medications had kept A.S. within proper behavioral limits. The first grade year ended on that note.

When asked about A.S.'s classification, Marcianti indicated that the complexity of A.S. shows that he was numerous problems. As a result, he believes that the term "multiple disabled" is how the proper disability verses "other health impaired" based upon the two experts' reports supplied and noted hereinabove. He conceded that the form which was used was incorrect as it applied only to the classification. However, he felt that the process was not in itself flawed in that the CST had thought about the classification as being SDL in a proper fashion. Therefore, the acts by A.S. were not the manifestation of his "disability." Instead, his acts went well beyond his impulsity.

Although the parents had asked for the aide in December 2001, it was not until February 20, 2002, that the District started to look for any aide. They subsequently hired the aide only for the instructional times on March 28, 2002, since it had taken awhile to find an aide and to have her get started regarding her assignment to A.S. He knew that after the series of suspensions which A.S. accrued by February, 2002, there seemed to be a discrepancy in his behaviors at recess. The CST offered the use of an aide only those unstructured times during recess as a result. By contrast, structured time within the classroom did not demonstrate an apparent need and, his estimation, the need even declined over time. He felt that an in-classroom aide would be more intrusive than a behavior modification program so they tried the program first. In the process they had determined that no aide was necessary in the classroom even though he had require some redirections in that environment by his own admission. In any case, they saw absolutely no purpose for the aide in the classroom at all, especially by the end of the year in all areas of his development at school. A.S. did not display actions which would have been helped by use of a personal aide.

He took exception to Dr. Joseph Plasner's report which he had concluded that an aide would be appropriate. It was Marcianti's opinion that the use of an aide would be intrusive in a classroom setting, as indicated hereinabove. In addition, Dr. Plasner also did not recognize A.S. has having had any significant improvement by June 2002 even though it had been reported as such by the various members of the District's staff, particularly for the period between March and June 2002. In addition, he felt that the passive/aggressive behavior which had been generated by A.S. had lessened. Moreover, he did not know whether A.S. would even want to have a aide to deal with his issues. He felt that the child's improvement toward the end of the school year in 2002 demonstrated that they got "more work out of him" in this short period than they had in the previous months. His first grade teacher, Mrs. Curcio had indicated that she had seen A.S. engage in dramatic changes in the classroom environment and in his actions over time. She had shared those thoughts with Marcianti periodically. As a result, it was his position that it is always difficult to deal with A.S. when he is upset and that the presence of a aide would not make any difference. Instead, it was his belief that A.S. has to be taught self-monitoring instead.

He noted that the non-structured aide had had a good rapport with him. After the aide completed her time with him, there were no other reports generated with reference to his activities. He claimed he had told the parents in January 2002 that he thought that A.S. was mis-classified after having told the CST in December to monitor him after the wall incident. He also felt that if the behavior modification program becomes ineffective they can then eventually go to the next step with the use of an aide, but not until then.

Regarding Dr. David Gallina's psychiatric report, Marcianti believed that there were some significant discrepancies cited in that report. For example, the "major event" cited in that report indicated that the incident occurred on a seven-foot wall. However, it was actually a fifteen-foot wall. He also felt that there were gross misrepresentations made in it regarding the actual suspensions referenced therein, although he did not elaborate in length regarding them.

On cross-examination he acknowledged that the behaviors exhibited by A.S. became worse sometime in the 2001-02 school year. He also thought that the Selbst report was thorough and comprehensive. He also felt that Mrs. Curcio was "good" teacher in that she made more demands upon A.S. by the end of the year, which resulted in him having some significant changes in his behavior. It is his understanding that she had found that, by raising the expectations, she was able to witness more successes. For example, A.S.'s hiding under the desk became less frequent and limited to just a couple of times per week. Similarly, his running out of the classroom became less frequent and constituted a vast improvement over the prior experience since he now would stop outside of the door instead of bolting throughout the school environment. He claimed that this assisted Mrs. Curcio in not getting as distracted in order to check on his status because he was able to stay near the door. He acknowledged, however, that A.S. was not being supervised or instructed while he was out in the hallway environments.

He noted that, while A.S. was in the preschool setting, he has classified as preschool disabled on February 18, 2002, at which time his key problem was involved in focusing on tasks and maintaining attention (P-1). He now has since been classified as attention deficient hyper-activity disorder (ADHD) and that "covered" at the time of A.S.'s manifestation determination hearing. He acknowledged that A.S. had been determined to be eligible for Special Education and Related Services as of June 12, 2000 as having a Specific Learning Disability, although it was not explained in depth at the time (P-3). At the time he had a total I.Q. score of 108 but he had "some problems" with his grapho-motor skills. When A.S. trashed his classroom, Marcianti new that A.S. had ADHD but he did not believe that it caused the trashing. However, until he documented what the disability was, he could not ascribe it to that trashing event since they were not defined at the time.

A.S. is presently in the second grade at this time which is, according to Marcianti, where he is supposed to be. A behavior modification plan which was requested by the parents was implemented by the district. The teachers and the team met in the first week of September, 2002. A point system was set up. The parents were advised that the district would also set a re-enforcement plan to help the parents to set up a re-enforcement plan at home. A lunch aide was ordered to be in A.S.'s "vicinity" at all times and to intercede on his own behalf if necessary. The lunchroom aide reports to his class and accompanies A.S. to lunch. This was an additional person who was added to luncheon aide staff. The only incident by him in the lunchroom setting occurred before the aide was established and involved him pouring water out of a water bottle. The behavior modification plan which was instituted in September 2002, seemed to increase A.S.'s level of compliance verses a much more frequent level of negative activity the year before. However, at the same time he is also sleeping a lot more this year, which episodes occurr approximately between 9:30 and 11:30 a.m. At the same time, however, his affect was more pleasant. He also nonetheless experienced significant loss in functioning particularly in the area of sight word vocabulary, most of which he had lost via regression over the preceding summer. His motor issues also regressed. Mrs. Teitler, the resource room teacher, and the CST called in the mother and expressed concerns about those regressions. As a result, he underwent a series of additional tests in approximately October 2002.

Yet, at the same time, he concluded that commencing on October 7 or 8, 2002, A.S. began to get medication in school from the nurse and in accordance with the parents request. This change impacted upon him sleeping in school a lot more and more behavioral problems arising particular in the area of oppositional behaviors, leaving the classroom, and staying outside of the classroom. Therefore, even though he was still earning more points than the previous year, his behavior was now more explosive. Since then, his sleeping patterns seem to be lessening and he has not received any additional points. This may be attributable to the fact in part that he has been sleeping during some of the class periods. The parents did not agree with the use of a school psychologist and as a result, the district backed off on pursuing that avenue or recourse.

On October 22, 2002, an incident occurred at which time A.S. was "somewhat" angry in the morning, as a result of A.S. having said that one of his female classmates had bothered him first. At approximately 9:40 a.m., the entire class went to art class. A.S. got his assignment from Mrs. Branch, the art teacher, and he then proceeded to lift up the female classmate's headband, pull it down over her head and choke her. The child got upset and reported it. A.S. then left the room and moved around the building as if it were a game for him. He was left alone and eventually returned to the art room. The teacher moved some desks around to accommodate him. The district urged A.S. to be sent home and his father agreed to send A.S.'s sister and grandfather to get him. However, A.S. refused to leave and go home. Instead, he threw a fit and fell on the floor in a defiant manner. The class was moved out to avoid witnessing his tantrum.

His attitude continued to deteriorate for approximately one half hour, during which time his father was on the phone with the school officials. His mother agreed to come and get him but just before she arrived, A.S. got up and walked out with his sister without any further incident. That event constituted a first major oppositional action during the 2002-03 year. He returned to school the next day.

On October 30, 2002, A.S. came to school very tired and refused to go into a class. He fell asleep on the floor. They would not awaken him in anticipation of an assembly. Instead, the parents came to get him. At 11:20, he woke up, went to the nurse and remained in school the rest of the day where he did participate in all the rest of the school activities for that day. When asked whether there should be an aide during the structured time, Marcianti believed that it was not appropriate or necessary at this time. When A.S. completes his work, he is a satisfactory student. The problem of redirection will work with the regular classroom teacher. However, when he is oppositional, even the teacher cannot redirect him. As a result, he does not see how an aide can help out any better than the teacher in the classroom.

He also admitted that during the October 22, 2002 choking incident in the classroom, the regular art teacher was not even near him at the time of the incident. The class consists of twenty-seven children and one teacher. Marcianti could only "assume" that she could have interceded in any event. He does not believe that an aide is an integral part of the children's behavior modification plan and thinks that the regular teachers can do the interceding satisfactorily. As a result he does not believe that an aide would do anything other than compound A.S.'s oppositions.

Marcianti also denied ever having stated that the district intended to remove A.S. from the district to any altrnate school settings, either after the wall incident, or the class trashing incident. He was not at the review session when R.S., A.S.'s father called him a "liar". He did, however, speak to him afterward about those comments. He feels his reputation in the town is being "besmirched" by the parents' negative attitudes towards him and the district at this time. He also feels that he did have professionals available in district to discuss counseling, including a psychologist and a social worker who are all acceptable and appropriate people to assist the family. He nonetheless agreed that an out of placement could be a possibility but is nonetheless not at the district's preference.

Finally, a re-evaluation meeting was conducted on January 30, 2002, (R-24) at which time he offered the use of a second child study team for the family. Instead, the family said "no" to any further evaluation by the district. Just plain "no" and then silence. They claimed that they did not request an outside evaluation at that time and not until the manifestation review on February 28, 2002, at which time the parents requested the outside psychiatric and psychological evaluations, which the District agreed to be done even though they later disputed the results of both of them.

Dr. John M. Ambrogi is the Superintendent of Schools in the district where he has been for ten years. After graduating from George Washington University in 1971 with a Bachelor of Arts Degree in Chinese Studies and a six month period at Villanova Law School (where he intended to work with juvenile offenders), he ultimately received his Masters of Education degree from the University of Delaware in Special Education in 1974. He received his Doctorate from Temple University in Special Education in 1979. He was then appointed as a principal at a Special Education school in Philadelphia as part of the Easter Seals program, served as the Director of Student Services for a Rhode Island district between 1978 and 1979, acted as an adjunct professor at Rhode Island College in Special Education from 1978 to 1984, and served as a superintendent for the Lincoln School District in Rhode Island from September 1984 through 1988. Between 1988 and 1991 he was the superintendent of the Vernon Township Board of Education and was the superintendent of the Warren County Special Services School District between 1991 and 1993. In 1993 he assumed his current duties in South River. He is the former president of the Rhode Island Superintendents Association, among other achievements. He was stipulated as an expert in Special Education.

He knows A.S. and he takes a strong interest in Special Education students in the district. He recalled that A.S. had started in the district as a preschool handicapped (now disabled) student in September 2000, at which time he was aware that A.S. had had some seizures and had some issues surrounding his general disability problems. During the entire kindergarten program he knew that he had a problem getting into the class but there was nothing significant otherwise to be brought to his attention that year. A.S. was assigned to a mainstream kindergarten at the time.

Dr. Marcianti came on board in September 2000 as the district's Special Education director. In that capacity, Marcianti periodically briefed Dr. Ambrogi on significant issues. In that regard there was one major incident regarding A.S. in which he ran out of the classroom and was nowhere to be found in the school. Dr. Ambrogi was summoned during his luncheon period. When he arrived in the immediate area of A.S.'s whereabouts, A.S. was located on the third floor landing approximately fifteen steps above the principal and vice-principal. He asked them to go back to the room, but A.S. said nothing. He then called for the father. In the meantime, A.S. then blew past the principal and ran out the end of the hallway. They then got his eighth grade sister who managed to talk to him at a hallway crossroad and then it appeared that the matter had defused. He left the scene accordingly and he does not know if A.S. was suspended for that first incident.

Regarding a second incident, he does not even recall the time frame, although it involved an after-school event. He had heard that A.S. was on "the wall" moving back and forth and walking near the edge. The wall is approximately fifteen feet high and serves as a retaining wall at the school. It was reported to him that A.S. was angry with his sister who would not let him play, according to the school psychologist.

As a result of that incident, he called in Dr. Marcianti to look at A.S.'s problems. He also talked to the classroom teacher, Claudia Curcio, who said that A.S. had had some major problems in the class at the time, such as crawling under his desk, sleeping for one and a half hours in class during the regular class period, and acting generally oppositional in terms of doing his work. At the same time, she said that he could learn and she had no other real problems with him. In fact, he had most of his problems during unstructured times, especially the luncheon period. Dr. Ambrogi formed a conclusion that A.S. should have more appropriate behaviors.

A third event occurred when A.S. completely trashed or destroyed his classroom during a luncheon period. He never saw such destruction from any child, this having occurred when A.S. was still a first grader. A.S. even tried to rip the coat of a speech therapist. After that incident, Ambrogi told Dr. Marcianti to proceed with due process. Dr. Marcianti was prepared to do that but four or five days later, Marcianti received a letter from the petitioner's attorney after which, he recommended that they work with them. Ambrogi actually tried to have them work it out.

Upon reflection, Ambrogi felt that A.S. should have been evaluated after the wall incident but that the parents refused. Also, Marcianti had told him to work it through the parents who claimed to have a psychologist on board at the time. However, even after the classroom-trashing incident, he had told Marcianti to do something about the situation even though Marcianti suggested that he thought that he could mediate it out with the help of petitioner's attorney.

Dr. Ambrogi knew about several suspensions which A.S. has received in the school setting. He was also currently aware of the manifestation determination hearing as well as the circumstances involving with his occurrence. Marcianti had told him that A.S.'s identified disability was "learning disabled" and they had to go with it pursuant to the Child Study Team/Parental Prior Agreement since that was all that had been documented up to the time of that determination hearing. As a result, they had to go with that, even though he disagreed with that type of "label."

He knows that there are four categories of aides employed by the district. A special education classroom aide is assigned to the class and all the children in the class for the entire class sessions. The qualifications include a high school diploma and an associates degree preferred. The second type of aide is a bio-lingual in-class aide who's employed for the entire class session. A third type of aide is a lunchroom/recess aide who works for approximately one hour in the middle of the day. Of all the aides, that person is the least trained. It is also difficult to find personnel to fit that schedule since it is hard to get a person for one hour in the middle of a day. The last aide is an individual personal special education aide, who is most trained. They currently hired two of them to work one half day each and to cover the child's whole day involving children with cognitive impairments, physical disabilities or low I.Q.s. They shadow the child the entire day.

He noted that the CST never recommended a teacher aide. That recommendation came solely from the parents and the psychologist. Yet, by February 2002, Marcianti told him that, due to the escalating lunchroom problems by A.S., a luncheon aide would be recommended. As a result, he hired Irene Bedrovie, who was scheduled to start immediately but had a one-week delay. Even then, her attendance was not good and she wasn't there every day.

About the same time, A.S.'s attitude seemed to improve, according to Marcianti, who also stated that they were not as concerned as they had been in the past. They surmised at the time that he was on some sort of undisclosed, unidentified medication, which caused that change. He noted that Bedrovie was supposed to protect him and the children around him for their own safety since, after that time, A.S. had attacked other students and had choked the one child (as indicated hereinabove.)

He had an opinion regarding the use of a full-time aide. He felt that A.S.'s opportunity to do well in school would be diminished by having a personal aide. Instead, with the use of appropriate medications, a behavior modification program, and coordination with a district counselor/psychologist as well as a teacher, the parents could be incorporated into a comprehensive plan to help the child. In the process, the parents would have to be trained too since they must be the coordinators of all the outside programming that goes on with the child after the school day is over.

He is also aware that the parents had engaged the services of a psychologist, Dr. Michael Selbst, who created a behavior modification plan for the child. Marcianti reported to him that it was very similar to the one that had been previously employed. He generally believed that the behavior modification plan should be started in the beginning of September without the use of an aide in the classroom and no unstructured luncheon aide either.

At the same time, he acknowledged that he has never tested A.S. at all, and, he relied upon Marcianti's judgment. He also had one direct interaction with the child over time. He only also saw the results of the destroyed classroom and ripped coats. At the same time, he conceded that the child's school records do suggest that, since his beginning time in the school system, attention deficit hyper-activity disorder was present in the child. His primary problem appeared to have been that he has had some behavioral issues exasperated by him being bi-polar. He is a lot more complex. Yet, he disagrees with the disability designation of "Specific Learning Disability" for the child, even though it was agreed to by the parents and the CST early on.

As a result, he felt his disability at the time was what they had to deal with even though they put themselves in a straight jacket regarding the label which had been applied to the child. He also conceded that he did feel early on that something was wrong because of the child's evident behaviors and that some thing had to be done to his program. He also acknowledged that the State Department of Education had monitored South River (P-4) in 1992 and found that the district failed to list the nexus of the disability to the conduct. They did not document the conduct verses the disability. He nonetheless conceded that things had to be done with A.S.'s program since it was not working out properly. As a result, the district now believes that A.S. should have been classified as "multiply disabled." He also agreed that at the time of that determination, the classification of "eligibility for special education services based upon a Specific Learning Disability" was incorrect. It was only afterward that a re-evaluation was called for, as a result of the out-of-district evaluations. They did this and agreed to it as an "olive branch" courtesy to the family.

Upon reviewing Dr. Plasner's report, dated June 26, 2002, (R-1), Ambrogi maintained that A.S. no longer had any problems, despite the fact that Dr. Prasner had reported on page six of the report that thirteen behaviors had been listed by the teacher. He based his conclusion upon the fact that at the end of the year the teacher told him that the child was doing better. Therefore, he felt that there was no longer a problem since there was now an improvement in the child. He also recalled that the first grade teacher, Ms. Curcio, did tell him that she did submit the thirteen observations to Dr. Plasner during the course of his evaluation. However, he disagreed with Dr. Plasner's recommendation regarding the need for an aide, as well as the concurring opinions of Dr. Selbst and Dr. Gallina. He based that opinion upon the fact that none of those three experts had consulted with his people on site and he felt that they should have extended their inquiry to include his staff. Yet, he then testified and admitted that Dr. Selbst did reach out to two members of the CST, the school psychologist, Dr. Marcianti and the classroom teacher. In the process, he contradicted his own opinion about the Selbst analysis being flawed based upon his conclusion that Dr. Selbst had not reached out to his personnel. At the same time, however, he claimed that the building principal should have also been interviewed as part of that analysis.

Jamie Flanagan is a second grade teacher employed by the district. She has had A.S. in her class since September 2002. There are twenty-four students in her class. Ms. Flanagan had heard about A.S. from his first grade teacher Mrs. Curcio and, as a result, she knew she had to "do something special" about him. She had no prior discussions with the staff until after school started at which time she participated in a discussion regarding a behavior modification plan in the office of the school psychologist. As a result, she is very familiar with the plan. She is also aware of A.S.'s two older sisters who used to attend her mother's dance studio.

Regarding his behavior management plan, A.S. has an incentive program in which he can earn up to two points in each section or activity every day, which is recorded via daily score cards (R-5). He can earn a maximum of sixty-four points per day per class period in four categories. The points accumulate for a week. She believed that A.S. understood how many points he would need at any given time. Once the point totals are fixed on a weekly basis, then a student is eligible for rewards.

At the same time, she also kept notes on him as "events" would develop (R-6). She even personally started the use of a "sticker" program for him which she had in place prior to the implementation of the behavior management program. The purpose of her sticker program was to modify his behavior to make it appropriate for the classroom. However, that sticker program lasted only two days.

She noted that A.S. has fallen asleep in class, which happens approximately one hour per session. He has acted negatively in class upon occasion and has refused to respond to authority. He has been negative approximately three to four times per week. She had been advised that he now takes medication for his seizures. As a result, she can know pretty much tell when he will sleep because he comes in with a glazed look on his face.

When he refuses to do work, he gets up and disrupts the class upon occasion. She recalled that on September 18, 2002, he manifested bad actions part of which included him being out of the classroom for fifteen minutes under the water fountain. She also reprimanded him for jumping on a girl in class. During the October period, he was more consistently aggressive on the days of October 9, 17, 22 and 23, among others. She told him that if he had to leave the classroom, she had to be able to see him.

She sent home "child friendly" score cards (R-7) on a daily basis. She also observed that A.S. chose not to read with a partner or in the circle group and this bothered her because he just didn't seem to want to read. Sometime on or about September 16, 2002, she notified A.S.'s mother about that problem. The mother came in and they discussed his reading problem. His mother advised her that she had also spoken to A.S. and he just refused to read. However, his reading has improved in the past two weeks but he still does not read with or in groups. He also still struggles with out loud reading. Academically, his grades were not up to par, even though he had stories and tests read to him. Reading and spelling tests are conducted every Friday while math tests occur at the end of a lesson plan unit. He does tend to do math tests well himself. At the same time, his homework is always done and is satisfactory. She maintains that he does participate "most of the time" in class. She never heard him complain about homework until the night before she testified at the due process hearing. They previously agreed to reduce his spelling words from fourteen to ten words in his homework as an accommodation to the family.

He has manifested behavior problems over the time. On October 22, 2002, he tried to strangle a female classmate. He told her this in the hallway about having pulled a headband over the girl's head. She stayed with him for thirty minutes and then he came back to the class. He was then suspended that day. He came back to school the next day, scratched another child on the neck, sat under the computer table, tried to trip her as she walked passed, and left the room at 11:15 where he sat in the hallway. As a result, he missed all of his Spanish class. She also sat with him in the hallway during that twenty-minute class.

It was also reported that on October 24, 2002, he acted horribly for a substitute teacher. On November 1, 2002, he yelled, "bitch" to a student and chased him around because he laughed. He also called another student a "fat ass". On another day he stayed in the hallway until 10:20 a.m. Later, he left the room again after she took scissors away from him. He then slept between 11:00 a.m. and 12:20 p.m. and then slept between 12:50 and 2:35 p.m. While asleep, he lost control of his bladder and the nurse was called. They got him a change of clothes. After school his father picked him up.

On November 19, 2002, he attacked a student at dismissal time in which he scratched the boy in the face, the boy cried, and the boy's face reddened. A.S. received a three-day suspension as a result. He had also told his teacher to "shut up" and he stuck his tongue out at her in defiance. On Monday, December 2, 2002, he slept between 9:15 and 10:20 a.m., participate in the computer lesson, and then reslept from 11:15 and 12:45 p.m. Yet, Flanagan noted that the next day, December 3, was a "great day" for him.

She also noted that A.S. just does not like to go to the reading class with Ms. Teitler, the special education teacher. As a result, he receives absolutely no points or merits from that class because he is never there. Her opinion regarding the use of a personal aide is that one would not personally help him learn, although it might help her in order to manage him in a class as well as his behavior when he refuses to work. She felt however, that no one would be able to help him anyway when he refuses to do things.

She acknowledged that when he runs out in to the hallway in such locations that she is not able to see him, she has to have him paged over the public address system in the school or she runs after him. She does not leave the classroom to find him unless she is relieved by another teacher, usually Mrs. Teitler, whose office is across from her classroom.

This is Flanagan's third year as a teacher in the district. At some point, she became aware that a request for an aide was an issue raised by the parents. She admitted that when she is forced to direct her energies towards A.S., out in the hallway area, no one is instructing the children at the time that even Mrs. Teitler, since she is only covering for her. She also acknowledges that she spends more time with him than with any other child in her class. She also acknowledges that A.S.'s behavior issues are interfering with his academic performance.

She noted that Mrs. Teitler primarily becomes her aide when Flanagan is forced to leave the room in order address A.S's hallway problems. She acknowledged that an aide could have intervened in A.S.'s lunging at others, especially when his actions are spontaneous. She had first heard about her assignment with A.S. in approximately June 2002 at which time the first grade teacher (Mrs. Curcio) asked her if she could handle A.S., to which she replied "yes." At that time she only knew that he had some classroom behaviors, which information she received through informal discussions with others in the teachers lounge. Thus, she based her answer upon her experience in the classroom, where she has served for three years in a second grade environment at the District's elementary school. During her prior years she had had some special education children in her classroom who received pull out in a block-scheduling format for special instructions.

She participated in an IEP revision meeting on September 6, 2002 at which time there was an effort made to implement a behavior modification plan. As part of that plan, she was to keep track of his behaviors and create daily score cards for each period. She has A.S. in her class during the day between 8: 40 AM and 3:15 PM except for the special instructions, lunch, recess and gym. She attempts to keep A.S. on tasks and give him rewards such as homework passes and pizza lunch passes as part of the plan (P-8). However, she is not responsible for implementation of what is known as the behavior plan "hassle logs." Nor does she use a significant behavior record either. She noted that since Mrs. Teitler's classroom is located across the hall from her classroom, Mrs. Teitler is able to step in and help her when A.S.'s needs divert her away from her classroom work. In that regard, she admitted that A.S. walks out at will, sometimes attacks other children, has trashed a classroom upon occasion, is defiant with teachers, forces Mrs. Teitler to lend assistance in her classroom, has engaged in risky behaviors, has had to be paged when he can not be found, and he has sometimes soiled himself. She is concerned that all of those actions have brought negative attention to A.S. over time in the eyes of his classmates.

It was her further opinion that notwithstanding her prior testimony an aide would help with his behaviors and, probably, as a result, his academics. On cross-examination she was advised about the central auditory processing evaluation, which was done on A.S. (P-9), which suggested the use of a auditory devise to help him. She indicated that she had never seen that and was not aware of its need to be implemented. At the same time, however, she noted that she had had not auditory problems with A.S., who has never even asked for any help or direction in that regard. Nor have his parents ever told her that A.S. has any hearing problem. His behaviors remain the same, including his consistent sleeping in class. She is concerned that he is missing work due to sleeping and or refusing to work. He also refuses to come back into the classroom when he runs out. She acknowledges that she pursued him herself on four occasions and had to get room coverage for between ten and forty minutes on each occasion. She is also concerned that she is now witnessing other children attempting to mimic A.S. by trying to sleep in class, which she attributed to his sleeping actions in class. She noted that his behavior problems do affect her ability to teach the other children in class. She does not physically stop him when he engages in adverse activities such as running out of the room. Instead, she tends to watch out for him except for the occasions when she did run after him. She mostly watches him from her classroom door when he is in sight.

Jean Marie Burroughs-Teitler (hereinafter called "Teitler") has been employed as a resource room teacher by South River for seven years. She received her Bachelor of Arts degree in Psychology in 1987 and is currently working on her Masters Degree in the area of Special Education. She had previously taught special education in New York City. In her current job assignment she does pull-out resource room as well as in-class support as part of a team teaching concept to provide a little help to children who need it. She now is responsible for such activities in the second and the third grades in the District. She was also the pre-school disabled class teacher when A.S. was four years old and, as a result, she knew him starting in that environment.

Early on, she noted that A.S.'s speech was very unclear and had some difficulties with his motor skills. His left leg dragged and his handwriting was difficult. He was also distractible, although he was not a behavior problem at the time. She interacted with the parents after he had arrived in January of the year. At that time, she had been advised by the parents that A.S. had had a Grand Mal Seizure in the preceding month.

During his subsequent kindergarten year A.S. had some fine motor skills problems which were monitored by the District. Since other school personnel were involved, with them at the time she had some less interactions with the parents at that time. She understood that his academics and motor skills were satisfactory and showed improvement, although he began to manifest some problems with transitions, especially during the lining up times as well as during other instructional times.

By first grade, however, he began to exhibit many more behavioral problems, which escalated over time. Although in the beginning he was okay with her, he became increasingly more difficult to handle and more aggressive with her. She understood that he had had switch of medications but did not know much more about it from the parents. Her procedure was to pull him out of the regular classroom in order to address his fine motor skills problems. As time went by he also needed help with spelling. His aggressiveness included him running into the bathroom as well as trashing a classroom on one occasion. She had no knowledge about any incident involving attacks on other children at that time.