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DECISION

OAL DKT. NO. EDS8096-07 AGENCY DKT. NO. 2009-12633

R.T. and T.H. o/b/o A.T.,

Petitioners,

v.

WEST WINDSOR-PLAINSBORO

REGIONAL BOARD OF EDUCATION,

Respondent.

____________________________________

Jayne M. Wesler, Esq., for petitioner (Sussan & Greenwald, attorneys)

John Collins, Esq., for respondent (Parker McCay, attorneys)

Record closed: June 11, 2008 Decided: July 14, 2008

BEFORE JOSEPH F. MARTONE, ALJ:

STATEMENT OF THE CASE

The petitioners R.T. and T.H., the parents of A.T., filed a due process hearing request pursuant to Section 504 of the Rehabilitation Act of 1973, as amended, seeking an order compelling the respondent school district to provide A.T. with a Section 504 Plan. The matter was transmitted to the Office of Administrative Law (OAL) on September 19, 2007, and a hearing was scheduled for September 28, 2007.

Prior to the commencement of the hearing on September 28, 2007, the parties engaged in efforts to settle this matter. As a result of these efforts the attorneys for the respective parties reported that they had been successful in reaching an Interim Agreement setting forth provisions for evaluations, including independent evaluations, and dealing with other related issues.

Based on the Interim Agreement, and at the joint request of the parties, I ordered that the hearing in this matter be adjourned and rescheduled for January 11, 2008, in order to allow time for the completion of independent evaluations and their consideration of these at an eligibility conference and IEP team meeting.

The independent evaluations were delayed and the meeting to consider the evaluations could not be scheduled until January 11, 2008, the date of the scheduled hearing. Because of this, the attorneys requested an adjournment of the hearing, and its rescheduling for February 8, 2008, and this was done. On February 8, 2008, the hearing commenced, and the hearing continued on March 3, 11 and 19, April 4, 9 and 28, 2008. The hearing scheduled for May 9, 2008, was adjourned and rescheduled for June 11, 2008, at the request of both attorneys because of the unavailability of witnesses and rebuttal witnesses. On June 10, 2008, the attorneys reported that they had concluded that no additional witnesses were necessary and the record was closed on June 11, 2008.

FACTUAL DISCUSSION

Most of the essential facts in this matter are not disputed. The following is not intended to be a verbatim report of the testimony but is intended to summarize those portions of the testimony I believed to be relevant to this decision.

A.T. is a nine-year-old boy, date of birth July 16, 1998. At the time of the hearing of this case, he attended fourth grade at the Village School, West Windsor-Plainsboro Regional School District, where he was making good progress and achieving academic success in class. It is undisputed that A.T. has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and Auditory Processing Disorder (APD). It is also undisputed that he has had emotional difficulties during his attendance at respondent's schools, although the extent of these emotional difficulties and their current status are in dispute.

Testimony of T.H., mother of A.T.

T.H., the mother of A.T., testified to her educational background, which includes a Ph.D. degree in psychology, and her eligibility for a New Jersey license as a psychologist. She is a child study team (CST) member and has participated on Section 504 Committees.

T.H. testified that A.T. was a high maintenance child from birth. He had mild delays in language and oral expression, and severe articulation problems. He was also hyperactive. He would either mishear or would not listen. At age two, he could not sit and listen to music or stories and in preschool he had trouble following directions. In preschool he was impulsive, pushed others, grabbed toys and had emotional outbursts and cried because he wanted his own way. He was a very capable child with wonderful attention to task and learning. He was required to leave preschool and was never allowed to return because he hit another student. He was very sensitive and was remorseful, and he knows right from wrong.

In kindergarten in school year 2003-04, when he was age five, A.T. was getting good grades, but had careless errors and pages were missing. His work was messy and his handwriting was illegible. He had social, behavioral and emotional problems, and his conduct involved pushing, shoving, grabbing and crying. He had no academic problems. During that year an auditory processing evaluation was conducted and an auditory processing disorder was diagnosed. He has also been diagnosed as having attention-deficit hyperactivity disorder (ADHD) by four different individuals: Dr. Kim Millar, a pediatrician, in November of his first grade year, Dr. Huntley Artisan, a neurologist, who prescribed a behavior modification plan and counseling for anxiety; Dr. Les Linet, M.D., a child and adult psychologist who saw him at the end of first grade year; and Dr. Joseph Plasner. His teacher used behavior modifications to deal with his issues. He needs preferential seating, repetition of directions and boredom issues arose. He could read at the time. He has an articulation disorder and was given articulation lessons. A speech language evaluation was provided. (P-1). His teacher complained about his handwriting and an occupational therapy evaluation was done.

In the mid-year of kindergarten, T.H. contacted the school's CST but only wanted A.T. to get into speech and language services. The result was that Mary Hall, the LDTC, said that it would be considered but she needed further evaluations. Eventually, the school district determined that it would not provide speech and language therapy because they wanted a full special education evaluation. A.T. received speech services but it was not done in a formal fashion. The parents requested Section 504 accommodations but these were not done.

First grade was A.T.'s worst year. He was involved in a lot of physicality and, on a class trip, there was a major meltdown and he was not allowed to go on future field trips. There was a pupil assistance committee (PAC) meeting and a positive behavior modification plan was developed. However, Ms. Miller was the first of three teachers, and the only one that complied with the behavior modification plan, and even she was inconsistent. As a result of testing, he was deemed not eligible for the gifted and talented program.

In first grade, it was determined that A.T. could not skip and had motor planning problems. He could not engage a zipper or ride a bike, it was hard for him to run and his handwriting was poor.

Upon entry into his second grade year, A.T. was avoided by his peers because of outbursts and was never invited to parties or to play dates. The teacher reported frequent outbursts and she was frustrated with delays in his academics. He would leave the classroom if he was not called on.

A.T. was on various medications but his level of Metadate was the highest tested as safe. He has severe ADHD and she would not go any higher with his medications. T.H. explained that medication does not control symptoms in everyone. T.H. has refused to agree to a CST evaluation.

During second grade, if A.T. acted out, rather than engaging in positive behavior modifications the teacher would send him to the principal, which was a punishment. He was given an exceptionality testing in INVIEW. A.T. took the test with no modifications and he did not qualify. T.H. believes A.T. was clearly capable of scoring better. There was quite a bit of anxiety on the part of A.T. during testing as reported by Ms. Groor, his teacher.

T.H. indicated she just wants things to be fair for A.T. He was bored with math in third grade and, in February 2006, the parents requested that he be placed in the gifted and talented program in math.

A.T. was getting frustrated over school work and was experiencing difficulty following oral instructions. An auditory processing evaluation was conducted on April 20, 2006, by Mei Gao (P-5). She concluded that A.T. has an auditory processing disorder. On the Woodcock-Johnson III, he tested as a solid 155 which is attained by less than 0.1 percent of children. He continued to have difficulties in school and there was an incident on May 12, 2006, when he was very distressed over a missing paper. It appeared that he was having meltdowns and emotional difficulties weekly during May 2006.

T.H. then petitioned for a Section 504 accommodation plan and the providing of an FM sound system. His teacher felt that A.T. only needed an aide to repeat instructions to him. The result was that a Section 504 accommodation plan was denied by the school district (P-9), and T.H. filed an appeal of that denial (P-11). She testified that A.T.'s conduct, socialization and participation in activities in the classroom, and otherwise, was far below average. She expressed the opinion that if the only limitation was grades, no child would be eligible for Section 504.

T.H. testified that last year there was no behavior plan and there were significant social issues because of his behaviors with the result that he had problems with his peers. He repeatedly lost books and forgot his homework. He was having problems with directions and he had the worst seat in the class next to the air conditioner. There was no FM system to help with his attention and with his auditory processing disorder. The majority of the class instruction was oral and A.T. has difficulty with oral instructions. He recognizes that he has trouble paying attention. The parents had taken him to Dr. Les Linet, a psychiatrist, and Dr. Linet wrote that A.T. should be provided with Section 504 accommodations because of his ADHD.

T.H. identified her response to the school district's denial of her Section 504 application (P-14). T.H. stated that if A.T. were provided with Section 504 accommodations, he would have had a fair chance for access to the gifted and talented program. She explained that A.T. cannot get testing accommodations unless it is pursuant to a Section 504 plan or an IEP.

T.H. testified that, while A.T. could be provided with accommodations for in-school testing, standardized testing is required for all school programs. New Jersey ASK requires Section 504 accommodations or they cannot be granted. As a result, A.T. was precluded from various programs even though he had higher ability than most of his peers in areas such as math. If he cannot be provided accommodations such as extended time, his knowing that there was a time limit would cause him anxiety and, during testing, he had meltdowns.

T.H. testified that as a result of A.T. taking the New Jersey ASK with a small group, he scored advance proficient in math and proficient in language arts, although even this was not commensurate with his ability level. She further testified that, as a result of A.T.'s testing on a computer in a carrel where there were no distractions, he scored in the 73rd percentile in the verbal section and in the 95th percentile in the math section of the School and College Abilities Test (SCAT). Based on these test results, compared to children two to three years older than he, the Johns Hopkins University Center for Gifted and Talented accepted him into its program.

Another audiological evaluation was done on February 28, 2007, and ADHD symptoms were noted in the evaluation report.

H.T. testified that A.T. is not learning disabled, but his grades do not reflect his ability. For example, in homework he missed an entire section and his grade was 63. During third grade, no accommodations were provided except preferential seating away from the air conditioner. No behavior modification plan was provided.

On cross-examination, H.T. indicated that in kindergarten the teacher did use a behavior modification plan, and it worked. It was a positive reinforcement system. No IEP or Section 504 plan was introduced or required. A.T. also received speech therapy because he is difficult to understand. His hearing is normal and he probably makes sense of what comes in, but he misses sounds.

T.H. stated that A.T.'s first grade teacher came up with a different behavior modification plan but it was insufficient and did not work. The teacher was also negative and punitive toward A.T. She reports that A.T.'s physical aggressive behavior in school continues until today. In first grade he was not allowed on any more field trips because of his kicking, screaming and pushing. It was then that he began seeing Dr. Linet every two weeks. Dr. Linet was trying combinations of medications. It was at the time that Dr. Linet recommended a Section 504 accommodation plan.

T.H. testified that her goal is fairness for A.T. by giving him equal access to all programs. She admitted that A.T. is now in the language arts gifted and talented program. She denied there was a formal offer to place A.T. in the gifted and talented program in math. Mr. Stevens said that testing showed that A.T. should have been in that program. She admitted that Dr. Sgarlato-Inducci's evaluation (P-26) showed a mild degree of APD. She reported that A.T. has a genius I.Q. (P-9). His medication has remained at the same level since November 2005 even though he has grown.

T.H. stated that, at present, the accommodations being provided to A.T. are an FM system to amplify sound in order to allow him to hear more sounds, but only the teacher's voice is amplified, and a homework checklist which is completely ineffective. She does not know if he has been provided with preferential seating. He does have a peer buddy, which was recently started. His present teachers are well-intentioned and try hard, but he needs more effective accommodations. None of his three teachers know what to do when he is frustrated and angry. The 2007-08 school year has been the worst year with homework and things lost. He has had no invitations to play dates. This is because he has meltdowns in class, and these are socially stigmatizing with the result that none of his classmates want to go near him.

T.H. identified her referral (P-14) which recommended 22 accommodations, none of which have been provided. All of these can be provided without Section 504, but the test accommodations cannot be provided in the absence of a Section 504 plan or a special education IEP. She indicated the school district has failed to provide A.T. with consistent accommodations.

T.H. stated that in third grade, the school district failed to report the magnitude of A.T.'s emotionality. She found out that A.T. was having recurrent major issues when the teacher's aide told her at the end of that year of an ongoing major problem. He had a major emotional meltdown during A & E testing and she indicated it is very difficult to calm him down. He knows many of the strategies to calm himself. The result is that it is socially stigmatizing and he becomes a target.

T.H. repeated that A.T. has not been given equal access to school district programs and he has been prevented from obtaining access to accommodations. For example, with the FM system, other students are not put on the microphone so he cannot hear what they say when they are engaged in group discussions. A.T. is also excluded from extracurricular activities because of his disabilities. In soccer, he cannot tolerate the ball being taken away from him. In test-taking, any oral directions are a problem. Any multi-step directions are a problem. The accommodations he needs are written directions, consistent directions, smaller groups to avoid anxiety and extended time for tests.

Testimony of Les Linet, M.D.

Les Linet, M.D., testified that he evaluates and treats children and adolescents. He was accepted as an expert in child and adolescent psychiatry and in children with ADHD. He testified that ADHD for children is the most common diagnosis. It is a very disabling condition and involves difficulty and frustration which undermines functioning. ADHD involves overactivity, impulsivity and frustration.

Dr. Linet is familiar with A.T. and has been treating him since July 2005. At first he was seeing him twice a month but is now seeing him once per month. There were more frequent visits at first in order to optimize the treatment. At that time, there was a great deal of emotionality in which A.T. would react and overreact to frustration. He was also engaged in hyperactivity and impulsivity. He saw evidence of a disability although A.T. is a very bright boy. The cause of his frustration is ADHD and life problems. The emotional consequences of his disability involve low self-esteem, not liking authority, not liking oneself and feeling very badly about overreactions.

Approximately ten percent of all children have ADHD. The criteria for the diagnosis of ADHD are in the Diagnostic and Statistical Manual, IV (DSM-IV). There are 18 symptoms listed and these are broken down into inattentive symptoms and hyperactive and impulsive symptoms. A.T. has the combined type involving symptoms in both of these areas. He has all nine of the hyperactive/impulsive type and six of the inattentive type. These symptoms manifested themselves in A.T. before age seven and were present in two settings, as required by the DSM-IV. A.T. is in the severe category of ADHD.

With respect to dealing with this, both Dr. Linet and T.H. felt that A.T. should be provided with written instructions, testing in a small group environment because of distractions, and redirection when needed in order to help A.T. focus. He identified his August 8, 2008, certification (P-13). He indicated Section 504 requires an impairment and, at the time, A.T.'s emotionality resulting in overreactions had improved and his symptoms were somewhat reduced. He is presently prescribing medications, including Metadate C.D., which is a long-acting form of Ritalin; Metholphenadate, which was originally Ritalin, 5 mg as needed in the evenings, and this was needed relatively infrequently; and Nadolol, which is a beta blocker to reduce emotional overreactivity and to treat the side effects of Metadate. A.T. receives Metadate C.D. in the amount of 70 mgs. per day and the FDA approved maximum dose is 60 mg. per day. He receives 100 mg. per day of Nadolol. These medications reduce but do not eliminate A.T.'s emotional overreactivity.

Dr. Linet recommended individual testing of A.T. in order to reduce distractions, and an FM sound system to help him focus on instructions (P-15). A.T. is traumatized by failure, but he does not have an anxiety disorder. His recommendation for Section 504 accommodations was after the failure of his treatment efforts involving medications.

On September 25, 2007, Dr. Linet expressed the following opinion with a reasonable degree of scientific certainty. It is his opinion that A.T. needs help in focusing. He needs external help for focusing, for attending to tasks, for not overreacting and to stay focused. He requires test-taking accommodations. If these are not provided, he will underachieve and will likely suffer emotional damage to his self-esteem and anger. This will have economic consequences, may ultimately lead to substance abuse, and there is twice the divorce rate and an increase in accidents. Socially, A.T.'s conduct is less than acceptable to others. He is being deprived of relationships with nice people and he will more likely have friendships with people who get into trouble.

Dr. Linet admitted that Section 504 requires a substantial impact on a major life activity at the present time. A.T. is treated by him once a month for supportive psychotherapy and prescription refill. With ADHD, impulsivity causes reactions. He explained that you cannot learn not to have ADHD. He is aware of A.T.'s good grades, and ADHD does not negate high intelligence. However, A.T. is an underachiever. In addition, interpersonal relationships are very important in his future occupation, dating, and the like and A.T.'s disabilities interfere with social relationships.

Testimony of Joseph Plasner, Ph.D.

Joseph Plasner, Ph.D., testified to his educational background, licensure and experience. He has had 15 to 20 years of experience and involvement with children for Section 504 eligibility. He is familiar with the criteria for such eligibility. He was accepted as an expert witness in psychology, the evaluation of children with special needs, and the development of programs for those children.

Dr. Plasner is familiar with A.T. He conducted an independent evaluation of A.T. for cognitive and adaptive functioning. He made a classroom observation and saw that the school district was providing an FM system and was using strategies to relax A.T. during periods of stress. During his in-class evaluation, no Section 504 Plan or IEP was in effect.

Dr. Plasner identified his notes with respect to these in-class evaluations (P-34). He testified that A.T. has three teachers. He attends the school's gifted and talented program for language arts and literacy. He indicated that WISC IV indicated that A.T.'s cognitive functioning fell within the very superior range of intellect. However, his true gifted potential appears to be belied by relative weaknesses with respect to efficiently and selectively attending to visually presented material, shifting focus, regulating and modulating processing speed, and quickly and efficiently integrating sensory modalities, as well as by an auditory processing weakness. He also indicated that A.T.'s adaptive functioning, based on ratings completed by A.T.'s teachers, reveals that A.T. is subject to difficulty organizing himself, performing school work in a careless manner, responding too quickly and impulsively, avoiding interaction with other students or teachers, failing to participate in group situations at times, and exhibiting off-task behaviors. He also has a tendency to respond inappropriately to criticism, experiences sadness, displeasure and/or discouragement, demonstrates rigidity in responding, externalizes blame, requires immediate rewards and demonstrates emotional sensitivity. His disabilities exert a deleterious effect on his adaptive functioning within the classroom. He appears to demonstrate perfectionistic tendencies, worries about pleasing others and experiences concerns about how he is perceived.

Given A.T.'s giftedness in conjunction with his disabilities, Dr. Plasner stated that 504 accommodations are necessary to support his educational programming and chances for success. His recommendations are that A.T. is not eligible for special education services but that he should receive a well-thought out 504 Plan which includes the following strategies:

  1. Continued utilization of an FM system.

  2. Preferential seating in close proximity to the teacher.

  3. Additional time on assignments, classroom tests and quizzes, and standardized testing.

  4. Standardized testing in a small classroom setting with a familiar proctor.

  5. Emphasis on quality of work, not quantity.

  6. Ensure that directions are understood prior to test-taking and beginning assignments. Rephrase when necessary, and provide explicit and concise language.

  7. Use a multi-sensory approach toward learning.

  8. Presentation of highlighted notes to support note-taking.

  9. Learning keyboard skills to support written expression.

  10. Utilization of a graphic organizer to support organization skills.

  11. Utilization of cognitive-behavioral strategies by the teacher to address organization skills, self-esteem and adequacy, impulsivity, appropriate group participation, acceptance of criticism, and appropriate self-advocacy.

  12. Peer group counseling designed specifically for gifted students.

  13. The monitoring of A.T.'s emotional and social development as he advances in school. Without appropriate academic support, he is susceptible to developing an adjustment reaction with anxiety and/or depressed affect in response to ongoing stressors.

A.T.'s teachers reported to Dr. Plasner that A.T. gets upset when things do not go his way and he sometimes cries. They all utilize strategies to calm him down. All three teachers noted his crying in class at least once per month, and Dr. Plasner noted that this is very rare. The crying bothered Dr. Plasner, particularly because it means something is going on. A.T. is a perfectionist and it is disconcerting because he worries about A.T.'s future if this continues. During standardized testing, he melted down and it is highly unusual for someone to cry during one-on-one testing. His full-scale I.Q. is 132, which is in the 98th percentile and is very superior. Other testing indicated that A.T. is not attentive to visual details.

Dr. Plasner expressed his opinion that A.T.'s disabilities impact on his ability to learn, and this is based on a reasonable degree of scientific certainty. He is concerned about the social impact of A.T.'s crying in class. Other children view A.T. as inadequate and different, and this isolates him from others. He gave the opinion that A.T. meets the criteria for a 504 Plan because he has a chronic impairment that impacts his access to learning. He expressed the opinion that social and emotional development is a part of learning. A.T. is at risk for failure for anxiety disorder if there are no accommodations. He felt that A.T. is a gifted youngster who should be nurtured. He needs accommodations for equal access to school programs. A.T. will not be able to participate with non-disabled students on an equal basis. He felt that any accommodations should be documented in a formal Section 504 Plan.

Testimony of Lorraine Sgarlato-Inducci, Au.D.

Lorraine Sgarlato-Inducci, Au.D., identified her curriculum vitae. (P-37). She testified to her educational background and experience. She stated she has evaluated thousands of children, including thousands of children with ADD and ADHD. She has testified as an expert witness in other cases. She was accepted as an expert in audiology based on her educational background and experience.

Dr. Sgarlato testified it is estimated that 30 percent of all children have an Auditory Processing Disorder (APD). She explained that there is a differentiation between ADHD and auditory processing disorder. She met A.T. in February 2007, and tested him (P-26), and saw him again on February 29, 2008. She always recommends that patients come back for testing one year later in order to determine if there are any changes. She identified her Central Auditory Processing Assessment of February 29, 2008 (P-39). She described APD as the inability to take in effectively information presented auditorily. It is a neurological condition that occurs at birth. She explained that the brain must process the auditory information and integrate it. She identified the various tests that she used.

Dr. Sgarlato indicated that A.T. displays a mild to moderate deficit in auditory processing skills and indicated that the degree of A.T.'s deficit will impact him significantly, both academically as well as socially. This is impacting A.T.'s ability to communicate adequately and to learn without accommodations to his curriculum and classroom environment. He shows deficits in the areas of auditory decoding, binaural separation, auditory closure and auditory integration skills. She indicated this is a substantial limitation on his ability to keep up with his instructions and this has a significant impact on his academic functioning. This is a disability and a medical impairment, and high grades do not mean that it is not necessary to accommodate this disability. A.T. is showing significant impairments. An FM system would help but will not cure the problem. She stated that even mild deficits in auditory integration are significant impairments because the student is not able to take in information effectively. It impairs A.T.'s ability to engage socially with his peers and to participate in class.

Dr. Sgarlatto has made a number of recommendations based on a reasonable degree of scientific certainty. The direct intervention she recommends includes a Section 504 Plan, and she gave the opinion that A.T. will have significant difficulty hearing and learning without proper accommodations. He would benefit from auditory therapy/rehabilitation. He should also receive speech therapy to address articulation. Clear, concise and explicit language should be used when speaking to A.T. Instructions should be kept simple, examples should be provided and important information should be rephrased or restated. New information should be presented in small chunks to facilitate comprehension, storage and recall.

A.T. has difficulty completing multiple or sequential directions. He would benefit from intensive auditory therapy and she identified programs that may be used. A.T. should be given ample time for processing information and integrating thoughts before responding to auditory instructions or questions. He should have all directions for tests written and not given orally. He should have assistance in packing his books and homework assignments. He should be counseled toward self-advocacy for listening, including recognition of adverse listening conditions and methods of dealing with them. New vocabulary, class and homework assignments should be given as a handout or written on the board to provide a visual input as well as auditory input. He will need additional time to take tests at school or complete in-class assignments. He should have a study guide and preview of new vocabulary and concepts before introduction in class. Assignments should be modified when requiring copying in a timed setting. He should receive preferential seating away from any distractions and close to the teacher in order to take full advantage of both auditory and visual cues. The teacher should speak clearly, slowly and loud enough to maximize his ability to understand and process the information. Standardized testing should be untimed in a quiet test environment. A sound field amplification system is recommended.

Dr. Sgarlatto explained that accommodations can only be provided by a Section 504 Plan; otherwise, they are not legally binding. She, again, gave the opinion that A.T.'s APD deficits were significantly impacting on his ability to learn and function in the classroom. A mild impairment in this area impacts a child significantly, both in and out of the classroom. The combination of ADHD and APD is an amazingly difficult situation. Her testing showed impairment which impacts his daily functioning.

Testimony of Robert N. Schweitzer

Robert N. Schweitzer testified that he is A.T.'s private piano teacher. A.T. also participates in the Cub Scouts and he is also A.T.'s cub master and den leader. Mr. Schweitzer holds New Jersey certificates as a teacher of the handicapped, chief school administrator, superintendent and principal. He has been a classroom teacher for 20 years, including two years in Montessori. He was a special education supervisor and a teacher trainer who has taught and given workshops in New York State IDEA. He is a State monitor for the New Jersey Office of Special Education Programs. He appeared as a fact witness and was not paid to testify in this case.

Mr. Schweitzer has been A.T.'s piano teacher for nine months and his interactions with A.T. led him to become aware of A.T.'s impairments. His first exposure to A.T. was approximately two and a half years ago in the Cub Scouts. He recalls A.T. learning to fold a flag, but when he could not get it to look the way that it was done by Mr. Schweitzer, he became very frustrated and upset. He also reported that on many occasions, when he is speaking to the group he loses A.T.'s attention. It is very difficult to keep A.T.'s undivided attention and he seems to tune in and out, and does not respond immediately. On other occasions, A.T. blurts out a response or statement. A.T. has a low frustration tolerance but he typically gets overwhelmed if he is given too much information. If he is taught something step-by-step, A.T. is able to master the task; otherwise, he gets frustrated. Sometimes A.T. interacts with peers but, on other occasions, he is isolated. His interactions are sometimes combative and he gave the example of A.T. making an observation about a boy who is fat, and the boy felt insulted by the comment. A.T. is immature in his actions and his interactions are not engaging. He does not gauge his reactions with others and he has alienated some of the other scouts. As a result, he has no close friends in the Cub Scouts and they do not include him in their conversations.

In many ways, A.T. is typical in that he is exuberant and loves to do projects. However, he has very strong reactions if he is frustrated and angry. He is emotionally immature and lacks self-control. He needs outside controls over his reactions and emotions. As his piano teacher, he found that A.T. picks things up very easily but he has a hard time with his directions as a teacher. If he tries to teach A.T. in the normal way, A.T. will ignore him. A.T.'s behaviors are inconsistent and his mood seems to change, and he can become very intense.

Mr. Schweitzer stated that A.T.'s impairments limit his abilities in many ways. When there is a full pack meeting and a lot of talking and activities going on, there is too much stimulation and he becomes edgy. He must be reminded to calm down. When his attention is called to his poor behaviors, he apologizes. He has seen a lag time between questions and A.T.'s responses. Once A.T. loses focus, it is hard to get him to concentrate. Scouting involves a lot of information, but receiving too much information gets A.T. frustrated. It is necessary to break it down into pieces. A.T. does better when he is successful. He is unable to regulate his emotions and overreacts strongly. It is not common but he has see A.T. cry out of frustration. This occurs when A.T. is not able to get his way, even if it is not his turn. He wants more and wants to be first. He has audibly cried when he cannot do or get something his way. This limits his ability to tolerate stress or frustration.

Everything in scouting is rewards and he gets rewards, praise and a chance to learn new things. These tactics are behavior modifications to keep A.T. on task. He also provides extra time to A.T.

Mr. Schweitzer testified that he has seen A.T. have a meltdown. He explained that he was teaching the use of scout knives to a group of dens. Each scout had to come with a parent or an adult, and they were to carve soap into a shape. First there was a long period of instruction on the proper use of a pocket knife, and they then moved on to use a real pocket knife. The scouts were told to cut the soap away from themselves, but A.T. was cutting the soap toward himself. When A.T. was corrected, he had a very strong reaction and started swinging the knife, and A.T.'s father placed his arms around A.T. to restrain his swinging the knife. It was five minutes until A.T. finally stopped attempting to flail about. He indicated he had never seen that type of reaction before. He felt that the flailing was caused by A.T.'s father, but his father acted reasonably under the circumstances.

Testimony of Nancy Icenhower

Nancy Icenhower was the first witness to testify for the respondent. She testified that she is currently the Director of Guidance and Services, K-12, employed by the West Windsor-Plainsboro Regional Board of Education. She testified to her prior work experience as a high school counselor, a lead counselor, chair of the pupil assistance committee (PAC), and to her prior employment as a health and physical education teacher in middle school. Among her current duties are involvement with Section 504 requests. Section 504 applications come to either the principal or counselor and are filtered to the Intervention and Referral Services (I&RS) Committee. Each school has an I&RS Committee. The committee members consist of an administrator, a nurse, a counselor, a member of the Child Study Team, a regular education teacher, and a special education teacher. The counselor is present advocating for the student, and the parents are invited to attend, as is the child. In her position, she hears appeals from all I&RS committees as the Section 504 appeals person.

Ms. Icenhower became familiar with A.T. when she received an appeal letter from the parents in September 2006 (P-11). She has been trained in Section 504 eligibility. There was a prior determination by letter of September 25, 2006. (P-9). When she received the appeal letter, she talked to A.T's mother and was given permission to observe A.T. in school and review all related documents.

Ms. Icenhower went to A.T's class and his teacher told her that A.T. was in the top reading group and he was performing at the top level of the class. Although he was seated by the air conditioner, most of the instruction occurs while the children were seated around the teacher on a rug. The teacher had A.T. sit beside her to refocus him without interfering with the class. A.T. did not have an FM system at the time. She also reviewed his grades and there was nothing negative, and he appeared to be progressing well and doing well in academic areas. She observed circle time and there were no negative behaviors by A.T. She talked to the teacher about his behavior and the teacher said nothing out of norm and said nothing about any meltdowns. The teacher felt the FM system would be detrimental to him and that it would be better if he sat beside her. She then reviewed the In-View test. (R-2).

Based on this examination, Ms. Icenhower issued a decision affirming the denial of a Section 504 Plan. (R-3). In her letter she indicated that A.T. is performing above grade level on all academic indicators and is well-adjusted to third grade. She found no evidence of A.T. ever mishearing or not hearing his teacher. His standardized test scores and his second grade In-View assessment showed that he is performing well above the norm for his age. Based on this review, she found no evidence that his disabilities are impacting his ability to learn.

On cross-examination, Ms. Icenhower admitted that the school district's policy is if a child has a disability, the child must first be evaluated for purposes of determining qualification for special education before considering Section 504 eligibility. She stated her belief that no accommodations are permitted for Statewide testing without Section 504 or IDEA eligibility. She felt that A.T. has a documented disability consisting of ADHD and a hearing impairment. She knows that the school district decided to allow testing accommodations but she does not know what accommodations they are.

Testimony of Scott Feder

The next witness was Scott Feder, who has been employed by the West Windsor-Plainsboro Board of Education for eight years. He is the school principal at Dutch Neck School. He was familiar with A.T. in his kindergarten year and he is now in fourth grade. He recalls observing A.T. in first grade and remembers him having a number of emotional difficulties. A.T. always wanted to be first and had emotional problems if he was not. During first grade, A.T.'s first teacher went on maternity leave, his second teacher was terminated and the third teacher finished the year. As a result, his third grade year was full of turmoil. He also acknowledged that A.T. has meltdowns, but his meltdowns were significantly less in third grade than in first grade. A behavior modification plan was put in place by the teacher in kindergarten, but nothing was put in place in first grade.

Mr. Feder testified that he observed A.T. while he was in third grade, although he cannot recall the date. A.T. had a very good third grade year and he did very well. He was provided with accommodations involving a problem with seating arrangements. He looked over A.T.'s third grade report card and it showed growth, particularly in behavior. In language arts and literacy he was not performing at a superior level but he was above average levels in both reading and writing. His standardized test scores did not show a level of giftedness. The In-View testing (R-2) was considered but an individual must score 97 or above to move on and A.T. only scored 89, but did very well.

Mr. Feder felt there was no indication of a need for a Section 504 Plan. A.T.'s current report card does not show a need for Section 504. They were concerned about emotional issues, and the Section 504 committee did discuss social skills and peer relations, but there has been a great improvement from first grade. His third grade classroom behaviors were not below average. His adaptive behaviors are below average but it is not impacting to severe levels. By third grade, A.T. was pulling everything together and making significant progress. He agreed with the letter of Nancy Dunn, School Counselor, dated September 25, 2006 (P-9), denying A.T.'s request for Section 504 accommodations.

On cross-examination, Mr. Feder denied any recollection of A.T. being sent to his office for problems during third grade. His teacher would have taken care of any problems that occurred. He is aware that A.T. has difficulty auditorially, focusing and socially, and in social skills he is at less than a third grade level. He talked to Mrs. Geel, A.T.'s third grade teacher, and was not told of any difficulties. At the November 19, 2004, PAC meeting, social difficulties were referred to.

Mr. Feder denied stating, "We do not do 504s". He does recall A.T. being frustrated to the point of tears in first grade, to a lesser degree in second grade and not at all in third grade. A.T.'s issues with oral directions were discussed at three PAC meetings. A.T. was precluded from the exceptionality program by his scores in school standardized testing with modifications, including small group and extra time. In January 2008, A.T. was allowed in the gifted and talented program even though he did not test into it. Any modifications did not make a difference in his scores.

Testimony of James F. McKethan, Ed.D.

James F. McKethan, Ed.D., testified on behalf of the respondent school district. He identified his Vitae (R-5) and testified to his experiences with handicapped children. He indicated he has three handicapped children. He has testified previously as an expert in Section 504 student eligibility determinations and he was offered as such an expert in this matter. He was accepted as an expert with respect to such determinations, with the understanding that he would not be recognized as an expert in legal interpretations.

Dr. McKethan was contacted by respondent to render an opinion in this matter. The evaluations conducted for Section 504 eligibility are almost as comprehensive as for eligibility under the IDEA. Decisions as to eligibility must be based on a variety of sources, not just a clinical opinion by a physician. He explained that simply having an impairment does not cause a child to be eligible. He considered numerous documents in A.T.'s case file and these are listed in his report. (P-6, p. 4). In addition, he considered Dr. Sgarlatto-Inducci's evaluation of February 28, 2007, and her assessment of February 29, 2008. (P-26 and P-38).

Dr. McKethan stated it is clear that A.T. has problems with auditory processing disorder but there is uncertainty as to the level of his problem. His social skills development is delayed based on problems stemming from a perfectionist approach to work. He suffers meltdowns, generally based upon misunderstanding of instructions. However, some of his social skills are on target. These may be related to his perfectionist attitude. He reviewed the psychological evaluation of Dr. Plasner and reviewed the Cognitive Learning Evaluation of December 2007. (P-36). He looked at a wide variety of testing and it is clear that A.T.'s test results are well above his age in all areas. He referred to the August 21, 2006, Cognitive-Educational Evaluation. (P-7).

Dr. McKethan noted that A.T. is a student with ADHD and who has been diagnosed as having a central auditory processing disorder. A.T.'s mother describes his relative weaknesses in auditory decoding skills and attentional issues, and describes how the disorders impede his ability to organize for instruction, follow multi-step directions and class routines. However, she does not acknowledge A.T.'s successful academic performance in all areas and his being promoted from grade to grade. In his third grade NJASK, A.T. was found to be proficient for language arts and advanced proficient for mathematics. A.T.'s performance on the SCAT given prior to third grade placed him at the 95th percentile in mathematics and the 73rd percentile in verbal abilities, both compared with fifth grade students. Based on this performance, A.T. was admitted to the Johns Hopkins University Center for Talented Youth.

Based upon A.T.'s classroom performance in all academic areas, Dr. McKethan expressed the opinion that A.T. is not handicapped under Section 504 so as to entitle him to Section 504 accommodations. He expressed the opinion that his disabilities consisting of ADHD and central auditory processing disorder do not substantially limit the major life activity of learning.

On cross-examination, Dr. McKethan admitted that major life activity is not limited only to learning. He admitted that the school uses an FM system, it has used a behavior management plan, and it has provided test accommodations for in-school testing, but he explained that these accommodations are discretionary. He admitted that his review was limited to "learning" as the only major life activity, and did not consider any other major life activity. He admitted that the law does not require an evaluation for eligibility under the IDEA as a condition for Section 504 eligibility. He also admitted that the focus of Section 504 is on nondiscrimination. He indicated that psychologists and psychiatrists are qualified to render professional opinions on the impact of a disability on a major life activity.

Dr. McKethan admitted that at least one informant stated that A.T. has had a meltdown and has difficulty following instructions. He also admitted that he did not witness or observe such a meltdown. He testified that the other activities, such as following directions, listening, difficulties with socialization, difficulties following directions, test completion issues, and behavioral problems, are all subcomponents of the major life activity of "learning".

Testimony of Susan J. Brown

Susan J. Brown testified that she has been employed by the respondent school district for 18 years and teaches fourth grade at the Village Elementary School. She has over 25 years of teaching experience. She is familiar with A.T. and he is in her fourth grade class. She met A.T.'s mother at back-to-school night where his mother thanked her for using the FM system. She explained the FM system amplifies for the entire room and A.T. benefits from it. The guidance counselor had explained to her that this FM system was for A.T.'s auditory processing difficulty so that he could hear her talk more clearly.

A.T. is taught by a team of three teachers. Ms. Brown teaches A.T. homeroom, language arts and science. His academic performance in science is an A, which is very successful. In reading and writing he is progressing at a fourth grade and fourth grade plus level. In science he is a solid average student with his written work a little above average. She identified his progress reports for the 2007-08 school year. (R-7).

As far as class participation, A.T. is hesitant to verbalize in the class. She tries to get him to participate and encourages him if he wrote something, but there is always tension in his voice when he speaks. She does a lot of partner shares and he is more likely to converse one-on-one with a partner. He also does better in small groups and teams but he is not comfortable talking to others. The other students accept him. She has prompted him to participate in research as part of a team.

With regard to A.T.'s ability to take tests, there are only tests in science. There are four tests altogether and he has taken those successfully. In one test he missed two questions on a page because he overlooked it. There have been two practice New Jersey ASK tests, which is 25 minutes time. The first of them in writing he did in 17 minutes. He has always completed every test in her class.

On in-class assignments A.T. works very well independently. He is very conscientious about completing his work. She lets students hand it in the next day but she does not recall this in his case. He completes most of his homework assignments in a timely manner. It is only if he does not take an assignment home that he does not return it the next day.

With regard to A.T.'s organizational skills, A.T. needs structure and she tries to have a structured day. At the end of the day, she has a period where everyone packs up and they have ten minutes to do so. At that time, she orally reminds A.T. of her class assignment, which is on the board. She does not know what goes on in the A&E students' math class. She does recall an occasion when A.T. was upset because he missed having a snack. He is now doing much better about remembering things but sometimes he needs to be reminded. A.T.'s mother gave her a list of strategies to use with A.T. She indicated these are common practices with all students.

Ms. Brown testified that the class is not too noisy except at the end of the day, but this does not seem to bother A.T. For the most part, he seems to understand her. Sometimes she must refocus him.

Ms. Brown described A.T. as very calm and quiet. She tells him to sit in the circle and she tells others too, and she also tells him to put down his pencil and he does so, and she tells this to others too. With regard to social skills, he has a difficult time interacting socially. He tries and interjects comments, which sometimes it is in line but other times it is not. He has a difficult time interacting with others a