Opinion
Civ. No. 01-0784 (JBS).
February 15, 2002
James Schwerin, Esquire, Parker, McCay Criscuolo, P.A., Marlton, NJ, Attorney for Plaintiff Deptford Township School District and Third Party Defendant Raymond Sherman.
Jamie Epstein, Esquire, Collingswood, NJ, Attorney for Defendants and Third Party Complainants.
John J. Farmer, Jr., Attorney General of New Jersey, Todd J. Schwartz, Deputy Attorney General, Department of Law and Public Safety, Trenton, NJ, Attorney for Third Party Defendants, Barbara Gantwerk and the State of New Jersey.
OPINION
Plaintiff Deptford Township School District ("Deptford") brings this action against defendant H.B., individually and by her parents and legal guardians E.B. and P.B., pursuant to 20 U.S.C. § 1415(i)(2) under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et seq., as an appeal of the final administrative decisions of December 6, 2000, and January 3, 2001, entered by the Honorable John R. Futey, New Jersey Administrative Law Judge (ALJ). Parents of H.B. had challenged the Individualized Education Plan ("IEP") created for their child H.B. for the school year 1999-2000 in the state administrative proceeding below, and Judge Futey's decision ordered Deptford to provide H.B., an autistic child, with certain educational services, to create a specialized educational program, and to reimburse H.B. and her parents for certain costs incurred. Presently before the Court is plaintiff Deptford's motion for summary judgment.
In the state administrative proceeding, H.B. had also initially challenged the IEP that had been created for the school year 1998-99. However, the Voorhees District, which had created the 1998-99 IEP, was never a participant in the administrative proceedings, and therefore, that particular IEP is not at issue in this case.
BACKGROUND
H.B. is an autistic child born on November 4, 1994. Upon institution of the state administrative due process hearings in October 1999, H.B. was almost 5 years of age. Presently, H.B. is 7 years old. Before transferring to the Deptford District on or about February 16, 1999, H.B. had lived in the Voorhees District. The Voorhees District had prepared H.B.'s IEP for the 1998-99 school year, calling for her to be educated at the Pre-School Handicapped Program run by the Gloucester County Special Services School District ("GCSSSD") at the Child Development Center ("CDC"), where H.B. had been attending school since November 1997. (P-23; P-31 at 3.) The Voorhees IEP, created in March 1998, had called for discrete trial therapy ("DTT"), picture exchange communication system ("PECS"), applied behavioral analysis ("ABA"), as well as parent training for promotion of generalization of skills during H.B.'s 1998-99 school year. (P-31 at 1.)
This Court herein refers to the exhibit numbers of the Administrative Record.
DTT is a particular methodology that is a one-on-one method of behavioral therapy. DTT is a type of therapy in which an instructor provides an antecedent, such as showing an object to a child or giving a direction to a child. The instructor then waits for the child's response and then gives the child a reward or reinforcer if the response is appropriate. (Tr. 2/2/00, at 71:10-19.)
ABA, as had been implemented by CDC, encompassed several different lesson formats, including discrete trial formats, incidental learning, and whole/part task methods; reinforcement strategies; and prompting strategies. Tr. 2/2/00, at 132:10-13. Dr. Edna Barenbaum, however, testified that ABA and DTT were separate and distinct from each other. (Tr. 10/25/00, at 96:10-12.) However, Kathleen McCabe Odri, from Partners in Therapy, testified that "[d]iscrete trial teaching is one method under the umbrella of applied behavior analysis." (Tr. 3/14/00, at 94:12-13.)
When H.B. arrived in the Deptford District in February 1999, she continued her education at CDC. On March 9, 1999, a meeting was held between H.B.'s case manager Janet Ulrich, speech therapist Joann Walton, classroom teacher Margaret Daly, and parents P.B. and E.B., to discuss H.B.'s education for the rest of the 1998-99 school year. The IEP covering the March 1999-June 1999 period called for H.B. to continue at CDC, with "individualized instruction using discrete trial and applied behavioral analysis . . . [and] [p]lacement in an Autistic Preschool Handicapped Program." (P-31 at 2.) H.B.'s program consisted of utilization of PECS, DTT, ABA, occupational therapy, incidental learning, whole/part task, reinforcement, prompting strategies, music, adaptive physical education, and speech/language services. (Letter from Raymond Sherman, 3/30/99; Tr. 2/2/00, at 132-33.) Although not specifically mentioned in the IEP, H.B. was given approximately 30 minutes of DTT per day by her special education teacher Margaret Daly. (Tr. 2/2/00, at 133:10-24.)
By letter dated March 13, 1999 and addressed to District Special Services Director Raymond Sherman, the parents, believing that H.B. "would benefit greatly from an intense one on one therapy model such as the [Lovaas] Discrete Trial" and keeping in mind their goal of mainstreaming H.B. to a regular kindergarten program by September 2000, requested thirty (30) hours a week of DTT at the family home in lieu of H.B.'s proposed placement in the GCSSSD program at CDC for the 1999-2000 school year. (Letter from E.B. and P.B., 3/13/99; P-23.) Mr. Sherman denied this request for home-based DTT by letter dated March 26, 1999, based upon an extensive review of H.B.'s needs and present program, citing H.B.'s strong and steady improvements, and significant progress in many areas. (Letter from Sherman, 3/26/99; P-22.) Mr. Sherman stated that this decision would be reviewed at the April 20 meeting to discuss H.B.'s IEP for the school year 1999-2000. (P-22.)
However, H.B.'s teacher at Deptford did not object to an additional 10 hours of DTT being a part of the program for H.B. Pl.'s Br. at 5; Tr. 2/1/00 at 132:21-133:2; Tr. 2/2/00, at 92:15-22.
In a telephone discussion with Mr. Sherman on March 30, 1999, H.B.'s parents expressed interest in the Baldwin School (P-20), and Mr. Sherman thereafter applied on H.B.'s behalf to the Pennsauken School District on April 7, 1999, stating that Deptford would like "to have [H.B.] attend your program for the 1999-2000 school year." (P-21.) The Baldwin School, however, replied four months later on August 10, 1999, stating that it could not accept her at that time due to lack of space. (P-10.)
On April 11, 1999, the parents of H.B. submitted this request in writing to Mr. Sherman. (P-20.) The parents, in their letter, also informed Mr. Sherman of their taking H.B. out of school at CDC at noon and providing home DTT instruction from Partners in Therapy since March 20, 1999. (P-20.) In addition, H.B.'s parents proposed that H.B. have a half day regular school with a trained "shadow" and three hours of DTT at home if the Baldwin School were not available in September 1999, and indicated that they were in the process of visiting other preschools in case the Baldwin School did not work out. (P-20.) In addition, the parents indicated their desire for H.B. to attend a regular summer camp during summer of 1999 for a half day three times a week with a shadow and then receive DTT for three hours in their home. (P-20.)
A meeting was subsequently held on April 20, 1999, to create H.B.'s IEP for the 1999-2000 school year, covering the period from June 1999 to June 2000, which is at issue in this appeal. (R-3.) Parents of H.B. met with social worker Linda Oliver, case manager Janet Ulrich, speech therapist Joann Walton, and special education teacher Margaret Daly. (R-3.) Mr. Sherman was not present. (R-3.) The IEP stated that "[H.B.] presents as a concrete, multisensory learner with delayed communication and social-emotional skills. She requires individualized and small group instruction using PECS and verbalizations in a well-structured classroom which utilizes a behavior modification system." (R-3 at 2.) Although the April 1999 IEP did not specifically refer to utilization of DTT, (R-3), H.B.'s current instruction at CDC had included DTT, in addition to other ABA techniques, and such instruction was likely to continue into the 1999-2000 school year at CDC. (Tr. 3/7/00, at 110:12-111:10; P-29.) In addition, discussions between Margaret Daly and H.B.'s parents indicated that 10 hours of DTT instruction at home was to be a possible supplement to the IEP. (Tr. 2/2/00, at 92:8-93:5; 93:12-17.) The IEP, based on test results showing H.B.'s progress and needs, called for H.B. to be educated daily at CDC for a half day, then to spend a half day at either of two pre-school classes offered by Deptford at its Pine Acres School. In the morning session, H.B. was to be placed in the transitional primary program, which consisted of children from four and a half to six, where she would have learned school-based skills, speech therapy, and occupational therapy. (Tr. 2/2/00, at 83:24-84:21.) The Pine Acres School had two preschool programs: one special education class including five children with a teacher, an aide, and a speech/language pathologist; and one regular education preschool program, consisting of about fifteen students, a teacher, an aide, and a speech/language pathologist. (Letter from J. Ulrich, 5/17/99.) The focus of both programs at Pine Acres was to prepare students for kindergarten. (Id.) In the afternoon at Pine Acres, H.B. was to be mainstreamed into a regular setting by transitioning her with a shadow during the afternoons, among peers with better communication skills. (Tr. 2/2/00, at 81:15-22; Tr. 3/7/00, at 112:16-22.) In terms of specific methods of instruction, the IEP called for H.B. to receive six 15-minute sessions of speech and language instruction in an individual small group setting; integrated speech and language instruction daily in the classroom; one 30-minute session of occupational therapy on an individual basis; and one 30-minute session of occupational therapy in a classroom setting. (IEP, 4/20/99, at 5.) In addition, for the specific objectives listed, the educational services to be applied included "1:1 and/or small group instruction," "individual small group," "integrated s/l therapy," and "integrated functional instruction." (R-3, at 7-11.) Plaintiff states in its brief that the IEP for the 1999-2000 school year was essentially a continuation of the Voorhees IEP program for the school year 1998-99.
By this time, H.B. had completed testing by April 1999 using the Hawaii Early Learning Profile ("HELP"). (Annual Rev. 4/99; R-4.) She also completed the Receptive One-Word Picture Vocabulary Test, Expressive One-Word Picture Vocabulary Test, Oral Apraxia Test, Pure Tone Hearing Screening, and Childhood Autism Rating Scale. (Annual Rev. 4/99; R-4.) These reports indicated that her educational status was six to twelve months delayed, her language age was 2 years 7 months, and that she was in the moderately autistic range. (Annual Rev. 4/99; R-4.)
P.B. testified that the Pine Acres program, as presented to her at the April 1999 IEP meeting, was described as a handicapped class. (Tr. 4/19/00, at 246:15-18.)
The participation of H.B.'s parents at the April 20, 1999 meeting was limited to signing the IEP with the notation "Attendance only — not agreement with implementation of IEP." (R-3.) H.B.'s parents, at the time of the meeting, discussed the possibility of other program options for H.B., but neither identified particular programs nor requested any specific changes or additions to the program as proposed by the IEP. (Letter from Sherman, 4/26/99; R-5.) During that period, however, the parents' request for 30 hours of DTT and for placement in a typical classroom remained prevalent. During the summer of 1999, parents of H.B. enrolled her in the Goddard School, a private school, at their own expense, where H.B. is currently enrolled today.
During the summer, H.B. spent five days a week at Goddard for 3 hours a day, then received 4 hours of DTT at home after school from Partners in Therapy. (Tr. 10/25/00, at 175.) In fall of 1999, H.B. continued her attendance at Goddard School for 12 hours a week, and received 24 hours a week of DTT at home.
On August 3, 1999, Mr. Sherman, on behalf of the Deptford Township Child Study Team, requested a Mediation Conference to resolve the educational placement concerns for H.B. (Letter from Sherman, 8/3/99.) Parents of H.B. rejected the mediation, the request for which was subsequently withdrawn by the State. (P-29 at 2.) On or around October 14, 1999, parents of H.B. filed a petition of due process with Barbara Gantwerk, Director of the New Jersey Office of Special Education (NJOSE). (Tr. 10/25/00, at 163:6-7; P-29 at 2.) The petition was subsequently transmitted from the New Jersey Department of Education to the Office of Administrative Law ("OAL"). (ALJ, 12/6/00, at 2.) The matter was originally assigned to the Honorable Robert Miller, but was reassigned to the Honorable John R. Futey. Parents of H.B. sought relief regarding H.B.'s IEP, placement, independent evaluation, supplemental aids, extended school year, and free appropriate public education ("FAPE").
After several days of due process hearings and delays due to scheduling conflicts of counsel, Judge Futey issued a decision on December 6, 2000, finding that plaintiff Deptford "failed to provide H.B. with a meaningful education by a preponderance of the credible evidence." ALJ, 12/6/00, at 34. The ALJ ordered Deptford to create a full day in-district program in a regular education class, incorporating applied behavioral analysis and discrete trial techniques to be coordinated with the Partners in Therapy program. ALJ, 12/6/00, at 34. The ALJ ordered Deptford to pay for reimbursing all costs to date incurred by H.B.'s parents regarding H.B.'s DTT from Partners in Therapy, and any future costs as part of that programming. (Id.) Until a program is created, the ALJ ordered that H.B. shall be permitted to remain at the Goddard School so long as it remains educationally appropriate, and all services since her initial enrollment there in the summer of 1999 to her reintroduction into the Deptford program was to be borne by Deptford. (Id. at 35.) In addition, the ALJ ordered Deptford to reimburse H.B.'s parents for all transportation costs incurred during her period at GCSSSD and at Goddard School. (Id.) The ALJ also ordered Deptford to provide compensatory education in the areas of speech therapy and occupational therapy to H.B. from the point of her enrollment at Goddard School and for all times she was not given such services by the district. The ALJ also ordered Deptford to reimburse Dr. Edna Barenbaum for the costs of her independent evaluation of H.B. The ALJ denied the request for a comprehensive evaluation for physical therapy. Finally, the ALJ ordered H.B.'s parents to submit an itemized list to Deptford and for Deptford to pay within 30 days of its receipt. (ALJ, 12/6/00, at 35.)
The ALJ held due process hearings on February 1, 2000; February 2, 2000; March 7, 2000; March 14, 2000; and October 25, 2000. The hearings included testimony from several individuals, including Edna Barenbaum, Ph.D., Todd Harris, Ph.D., Kathleen McCabe Odri, Nicole Swanfeld, Margaret Daly, Laura Oliver, Raymond Sherman, P.B. (H.B.'s mother), and Raymond Sherman.
Plaintiff Deptford filed an appeal from the ALJ's decision in this Court on February 15, 2001. On May 29, 2001, plaintiff Deptford moved for a stay of enforcement of the ALJ's decision, which this Court denied on September 20, 2001. This Court heard oral argument on the summary judgment motion on January 25, 2002.
On May 29, 2001, plaintiff Deptford moved this Court for stay of enforcement of the ALJ's decision, which this Court denied on September 20, 2001. Third-party defendants Barbara Gantwerk and the New Jersey Attorney General subsequently moved for enforcement of the ALJ's December 6, 2000 decision, which this Court granted on November 2, 2001. On November 16, 2001, plaintiff Deptford filed a motion for reconsideration of the Court's order of November 2, 2001. On December 12, 2001, this Court granted the motion for reconsideration and ordered that the previous motion for enforcement by third-party defendants Barbara Gantwerk and the New Jersey Attorney General shall be deemed granted in part and denied in part. The Court also ordered that defendant's cross-motion for contempt be denied without prejudice, and that the Court's opinion and order entered November 2, 2001 be amended to reflect that plaintiff Deptford shall make reimbursement as determined in Judge Futey's orders by January 2, 2002. On January 3, 2002, defendant H.B. submitted application for an order to show cause why plaintiff Deptford should not be in contempt for its failure to make payment under the ALJ's decision. After plaintiff Deptford complied with the ALJ's order, this Court denied H.B.'s request on January 8, 2002.
DISCUSSION
I. Plaintiff's Motion for Summary Judgment
Plaintiff Deptford moves for summary judgment, asserting that the IEP it created for H.B. offered her a Free Appropriate Public Education in the least restrictive environment for the school year 1999-2000, pursuant to the IDEA. Deptford moves this Court to overturn the ALJ's order and to rule that it has no further obligation to H.B. or her parents.
A. Standard of Review
The standard of review under which this Court considers an appeal of a state administrative decision under the IDEA "differs from that governing the typical review of summary judgment."Heather S. v. State of Wisconsin, 125 F.3d 1945, 1052 (7th Cir. 1997). Section 1415(e) of IDEA provides that district courts "shall receive the records of the [state] administrative proceedings, shall hear additional evidence at the request of the party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(e). The Supreme Court has required that federal district courts afford "due weight" to state administrative proceedings in evaluating claims under the IDEA.See Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206 (1982). The Third Circuit has held that district courts have discretion to determine how much deference to accord the administrative proceedings, and although the district courts "must consider the administrative findings of fact, they are free to accept or reject them." Oberti v. Board of Educ. of Borough of Clementon Sch. Dist., 995 F.2d 1204, 1219 (3d Cir. 1993). "But if the district court chooses to depart from the agency's ruling, it should provide some explanation for its departure." Carlisle Area Sch. v. Scott P., 62 F.3d 520, 527 (3d Cir. 1995) (citing Doyle v. Arlington County Sch. Bd., 953 F.2d 100, 105 (4th Cir. 1991)), cert. denied, 517 U.S. 1135 (1996). And when there is no new evidence presented to the district court, as in this case, "the motion for summary judgment is simply the procedural vehicle for asking the judge to decide the case on the basis of the administrative record." Heather S., 125 F.3d at 1052 (quoting Hunger v. Leininger, 15 F.3d 664, 669 (7th Cir.), cert. denied, 513 U.S. 839 (1994)). Since neither party has presented new evidence, this Opinion decides the case based upon the administrative record.
B. Analysis
Deptford School District seeks relief from the Administrative Law Judge's decisions of December 6, 2000, which held that Deptford violated the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1401 et seq., and January 3, 2001, which ordered Deptford to complete certain evaluations regarding H.B. pursuant to its earlier decision. The IDEA was enacted "to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living." 20 U.S.C. § 1400(d)(1)(A). The IDEA requires that states receiving federal funds for education must provide every disabled child with a "free appropriate public education," 20 U.S.C. § 1412(1), the core of which is embodied in the Individualized Education Plan ("IEP"), the package of special educational and related services designed to meet the unique needs of the disabled child.See Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 181 (1982); Carlisle Area Sch. v. Scott P., 62 F.3d 520, 526 (3d Cir. 1995) (citing Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171, 173 (3d Cir. 1988), cert. denied, 488 U.S. 1030 (1989)), cert. denied, 517 U.S. 1135 (1996).
The main issue here is whether Deptford provided H.B. with a free appropriate public education ("FAPE") in the least restrictive environment ("LRE") under the IDEA. Plaintiff asserts that Administrative Law Judge (ALJ) Futey did not apply the correct standard for determining whether the IEP offered H.B. a FAPE. Plaintiff argues that the appropriateness of the IEP was assessed after the IEP was created, rather than determined as of the time it was offered to the student. Defendant asserts that Deptford did not provide H.B. with a meaningful educational benefit in the least restrictive environment, as required by the IDEA, because the IEP did not provide necessary DTT services and segregated H.B. in a classroom setting with other children with special needs.
1. Whether the ALJ Applied the Correct Standard in Determining the Appropriateness of H.B.'s IEP
Plaintiff's main argument is that Judge Futey applied the wrong standard in determining the appropriateness of H.B.'s IEP, relying on testimony of individuals regarding their observations and assessments of H.B.'s program after the time the IEP was created, rather than at the time the IEP was offered to the student. Plaintiff points specifically to the ALJ's reliance on testimony of Kathleen McCabe Odri and Nicole Swanfeld, arguing that Odri's participation as a consultant began in March 1999, only one month before the IEP was created, while Partners in Therapy, which employed Swanfeld, only began providing DTT services to H.B. in May 1999, after the IEP was presented to H.B.'s parents.
The Third Circuit has concluded "that the measure and adequacy of an IEP can only be determined as of the time it is offered to the student, and not at some later date." Fuhrmann v. East Hanover Bd. of Educ., 993 F.2d 1031, 1040 (3d Cir. 1993); see also Scott P., 62 F.3d at 530 ("[A]ppropriateness is judged prospectively so that any lack of progress under a particular IEP, assuming arguendo that there was no progress, does not render that IEP inappropriate."). At the time this initial evaluation is undertaken, the Third Circuit has determined thatRowley requires the IEP to be "reasonably calculated to enable the child to receive educational benefits." Fuhrmann, at 1039-40 (quoting Rowley, 458 U.S. at 206-07).
In Fuhrmann, the Third Circuit adopted and published the district court's opinion as its own, holding that in spite of the student's dramatic progress at a private school placement at State Street School by his parents in lieu of the district's proposed IEP placement at a preschool handicapped program, that it could not say that the student's IEP was not "reasonably calculated" to provide some educational benefit. Notably, the Third Circuit stated that "[n]either the statute nor reason countenance `Monday Morning Quarterbacking' in evaluating the appropriateness of a child's placement." Fuhrmann, at 1040. The Third Circuit thus held that "this Court's inquiry is not whether State Street was better for [the student], as it appears to have been, but whether the placement of [the student] in East Hanover's Preschool Handicapped program during 1989-90 was appropriate." Fuhrmann, 993 F.2d at 1037; see also Scott P., 62 F.3d at 534 ("[T]he statute requires that school districts prepare the IEP's based on the student's needs; so long as the IEP responds to the needs, its ultimate success or failure cannot retroactively render it inappropriate.").
This Court gives due weight to the ALJ's findings, especially considering his ability and opportunity to review and observe firsthand the evidence and testimony of witnesses presented in the state administrative proceedings. The Third Circuit's ruling in Fuhrmann, however, provides the correct guideline for determining when the appropriateness of a child's educational placement should be assessed, which is at the moment of its creation. Like Fuhrmann, much of the evidence in the record in the instant matter refers to H.B.'s progress with DTT and at the Goddard School after the creation of the IEP at issue. In addition, the record refers to expert observations, reports, and testimony made and submitted post-IEP. The ALJ's decision relies considerably on the testimony and reports of Dr. Edna Barenbaum, Kathleen McCabe-Odri, Nicole Swanfeld, and Dr. Todd Harris, most of which concerned observations regarding H.B.'s education and DTT instruction that occurred after April 1999.
For example, the ALJ appears to rely heavily on the positive effect DTT instruction has had on H.B., incorporating the testimony of these individuals in his decision:
I thoroughly considered the width and breadth of the testimony offered by Dr. Harris and Dr. Barenbaum in this matter. . . . I find that the discrete trials have had a positive impact upon H.B. at a most crucial time in her life as well as the home environment. Thus, to the extent that H.B. had only received approximately one half of the optimum amount of weekly discrete trials recommended by Dr. Barenbaum, H.B. has nonetheless already recorded progress. . . . The involvement of Partners in Therapy appears to have played the singular most positive role in that regard, particularly the actions and interventions of Kathleen McCabe Odri, who has superintended H.B.'s DTT program, as well as Nicole Swanfeld, who appears to be a talented rising professional.
ALJ, 12/6/00, at 28, 29, 30. While it is assumed that Dr. Barenbaum's observations in June were conducted at CDC, it is doubtful that her recommendations regarding H.B.'s DTT instruction could be properly weighed considering that, by that point, H.B. had completed three months of DTT and her progress had been noted.
For example, Kathleen McCabe Odri's testimony related to provision of DTT services to H.B. at home. Although Ms. Odri, behavior consultant and president of Partners in Therapy, became H.B.'s consultant in March 1999, most of the testimony cited by the ALJ refers to DTT instruction that occurred after the creation of the IEP at issue. The ALJ refers specifically to DTT given in the summer of 1999, and to Odri's observations of H.B.'s progress after such instruction ensued. See ALJ, 12/6/00, at 18-20. The ALJ also stated that it was Odri's opinion that "H.B. should have a one to one support person trained in applied behavioral analysis . . . due to her `lingering' deficits in expressive and receptive language." ALJ, 12/6/00, at 20. The ALJ stated that Odri was concerned that the IEP "even failed to indicate the availability of a one to one support person." ALJ, 12/6/00, at 20. Kathleen McCabe Odri also submitted a report, dated January 21, 2000, to the ALJ in the state proceedings, based on her observations of H.B. on December 20, 1999 at the Goddard School preschool classroom and at her home where she received her individual ABA instruction.
This Court's inquiry is neither whether H.B.'s subsequent placement at the Goddard School was better than the proposed placement as stated in the IEP, nor whether H.B. showed significant progress with her subsequent DTT instruction. Instead, as in Fuhrmann, the proper inquiry is whether the IEP at issue was appropriate when created in April 1999. While evidence, testimony, and reports regarding a child's subsequent progress and needs are helpful in determining the subsequent success of a certain IEP, this Court is of the view that consideration of such evidence in hindsight of a particular IEP's creation runs counter to the Third Circuit's holding inFuhrmann. Thus, to the extent that testimony, reports, and observations refer to H.B.'s needs at or prior to the time of the IEP's creation in April 1999, this Court will consider such evidence in its review of the administrative record, while giving considerably less weight to post-April 1999 evidence.
2. Whether Deptford Provided H.B. With a Free Appropriate Public Education in the Least Restrictive Environment
Defendant H.B. asserted at oral argument that Deptford did not provide an IEP that offered a free appropriate public education to H.B. because the April 1999 IEP eliminated the provision of DTT services and placed H.B. in a segregated environment, violating the "least restrictive environment" requirement of the IDEA and denying H.B. the right to be educated with non-handicapped children by placing her in an educational setting with handicapped children. Plaintiff, at oral argument, asserted that even without the provision of DTT services, Deptford provided H.B. with a FAPE.
The IDEA statutory framework imposes dual requirements on school districts, mandating both substantive and procedural compliance: first, they must provide an "appropriate" education to a child with special needs, and second, they must construct a program in the least restrictive environment ("LRE") appropriate to the needs of the child. Carlisle Area Sch. v. Scott P., 62 F.3d 520, 533-34 (3d Cir. 1995) (citing Bd. of Educ. of Handpick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 200 (1982); U.S.C. § 1412(5)(B)). The Supreme Court has construed the FAPE provision of the IDEA to require "education specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child `to benefit' from the instruction." Rowley, 458 U.S. at 200. In administrative and judicial proceedings, the school district bears the burden of proving the appropriateness of the IEP it has proposed. Scott P., 62 F.3d at 533 (citing Oberti v. Bd. of Educ. of Borough of Clementon Sch. Dist., 995 F.2d 1204, 1219 (3d Cir. 1993)). In assessing whether the educational program as embodied by an IEP is appropriate, "[d]istricts need not provide the optimal level of services, or even a level that would confer additional benefits, since the IEP required by IDEA represents only a `basic floor of opportunity.'" Scott P., 62 F.3d at 533-34 (quotingRowley, 458 U.S. at 201). However, Rowley requires that a school district demonstrate that an IEP is sufficient to confer more than a trivial or de minimis educational benefit; indeed, the IEP must confer a meaningful educational benefit.Polk, 853 F.2d at 181 (reversing district court's granting of summary judgment where material issues of fact remained as to whether district's refusal to provide direct physical therapy conferred meaningful benefit); Oberti, 995 F.2d at 1213; see also T.R. v. Kingwood Township Bd. of Educ., 205 F.3d 572, 577 (3d Cir. 2000) ("`[T]he provision of merely more than a trivial educational benefit does not meet' the meaningful benefit requirement of Polk.") (quoting Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 247 (3d Cir. 1999)). Thus, the relevant inquiry is not whether plaintiff's IEP confers more than a trivial benefit, nor whether the IEP confers the optimum benefit, but whether plaintiff's IEP would confer a meaningful educational benefit upon H.B. See T.R., 205 F.3d at 576 ("By failing to inquire into whether the Board's IEP would confer a meaningful educational benefit on N.R., the District Court applied the incorrect legal standard on this issue.") (emphasis in original).
Indeed, the Supreme Court recognized in Rowley that "[w]hatever Congress meant by an `appropriate' education, it is clear that it did not mean a potential-maximizing education."Rowley, 458 U.S. at 197 n. 21. The Third Circuit has also noted that "[h]owever desirable the goal of maximizing each child's potential may be in terms of individuals, the Court obviously recognized that achieving such a goal would be beyond the fiscal capacity of state and local governments, and that Congress had realized that fact as well." Polk v. Cent. Susquehanna Intermediate Unit 16, 853 F.2d 171, 178-79 (3d Cir. 1988).
The LRE component of the IDEA reflects the statute's goal of "mainstreaming" children with special needs into regular classrooms. The IDEA requires states to establish "procedures to assure that, to the maximum extent appropriate, handicapped children . . . are educated with children who are not handicapped." T.R., 205 F.3d at 578 (quoting 20 U.S.C. § 1415(5)(B)). The Third Circuit has interpreted this requirement to mean that a disabled child must be placed in the least restrictive environment ("LRE") that will provide him with a meaningful educational benefit. See Scott P., 62 F.3d at 535 ("The least restrictive environment is the one that, to the greatest extent possible, satisfactorily educates disabled children together with children who are not disabled, in the same school the disabled child would attend if the child were not disabled."). The correct standard to be applied in determining the LRE is not to find an optimum placement, but to decide whether an appropriate educational placement can be achieved in a non-restrictive setting. Scott P., 62 F.3d at 532.
a. Whether the IEP Was Reasonably Calculated to Confer a Meaningful Benefit
To determine whether H.B.'s educational program was appropriate, this Court must assess whether H.B.'s educational needs were adequately addressed by the April 1999 IEP. The IDEA requires "education specifically designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child `to benefit' from the instruction."Rowley, 458 U.S. at 188-89. The Third Circuit has stated that the educational benefit of an IEP "must be gauged in relation to a child's potential." Kingwood, 205 F.3d at 578. The appropriateness of an IEP, however, may be successfully challenged "by identifying particular needs not addressed" in the IEP at issue. Scott P., 62 F.3d at 534 ("[I]f a student had failed to make any progress under an IEP in one year, we would be hard pressed to understand how the subsequent year's IEP, if simply a copy of that which failed to produce any gains in a prior year, could be appropriate."). The relevant inquiry here is whether plaintiff's IEP would confer a meaningful educational benefit on H.B., not just "more than a trivial education benefit." T.R., 205 F.3d at 576. It is essential for this Court to review the underlying evaluations of H.B.'s progress at the time of the IEP's creation in order to determine whether the IEP was appropriately designed to convey to H.B. a meaningful benefit.
A review of the ALJ's findings in the state proceedings is instructive to this Court's determination. The ALJ determined that the district failed to provide H.B. with a meaningful education by a preponderance of the credible evidence. ALJ, 12/6/00 at 34. The ALJ based this conclusion on several findings, including that the April 1999 IEP failed to "either endorse or explain away the previous identified need for discrete trials for H.B." that was exhibited in the March 1999 IEP. ALJ 12/6/00 at 29. The ALJ, determining that the April 1999 IEP failed to provide for DTT, additionally found that DTT had a positive impact on H.B., that Deptford was not equipped to handle provision of DTT services, that H.B. had received only half the optimum amount of weekly DTT recommended by Dr. Edna Barenbaum and had shown progress with DTT since then, that the use of DTT up through December 1999 has helped H.B., that compensatory education services could have been provided for but "for whatever reason, were not," that the IEP failed to address behavior modification methods to intercept H.B.'s increasing bad behaviors, and that due to H.B.'s maturation and growth, her needs could not appropriately be met by CDC.
A review of the record indicates that, while H.B. had demonstrated significant progress with her educational program prior to the April 1999 IEP, there were specific areas in which she needed improvement. For example, H.B. had shown regression in her February 1999 Annual Review, which charted her progress in several areas and was used in evaluating her educational needs in the April 1999 IEP. In addition, defendants argue that H.B. required DTT and her April 1999 IEP was inappropriate because it eliminated these necessary services. Furthermore, the record demonstrates that H.B. had exceeded the level of skills exhibited by her peers at CDC, sometimes leading to aggression, and needed to be exposed to model peers with higher educational and social skills and abilities.
Edna Barenbaum, Ph.D., a psychological and educational consultant, provided testimony relevant to whether the April 1999 IEP was appropriate during the due process hearings on April 19, 2000. Dr. Barenbaum holds an educational masters degree in School Psychology, and a doctorate in Special Education. (Tr. 4/19/00, at 7:9-15.) Dr. Barenbaum referred specifically to H.B.'s regression and "babbling," noted in Objectives 6A and 6E of her February 1999 review.
Dr. Barenbaum also submitted a report of her psycho-educational evaluation of H.B., which occurred on June 4, 8, and 18, 1999, when H.B. was 4½ years old. (P-6.) Dr. Barenbaum administered five tests to H.B., which indicated that H.B. was functioning at the age equivalent of 3 years, 4 months old in the area of language and communication. (P-6, at 4.) The tests showed uneven development in the areas of fine motor skills, gross motor skills, and self-help skills, and significantly delayed development in the areas of communication, socialization, and academic development. Dr. Barenbaum recommended that H.B.'s IEP include goals and objectives for the development of functional language, academic skills, leisure skills, and social skills. She gave the opinion that H.B.'s current classroom placement and recommended placement (assumedly at CDC) were not appropriate and did not meet her current educational needs. (P-6 at 6.) Because Dr. Barenbaum's report evaluated H.B. at a later moment in time, almost 2 months after the IEP had been created and about 2½ months after H.B.'s home-based DTT instruction had already commenced, this Court does not consider such evidence in determining whether the April 1999 IEP was appropriate.
Dr. Barenbaum stated that the DTT, PECS, ABA, and parent training to promote generalization of skills, specified in the May 1998 Voorhees IEP, never occurred, according to H.B.'s mother, and that this may have caused H.B.'s regression as noted in objectives 6A and 6E in the February 1999 review. However, Margaret Daly's testimony, which is discussed infra and given considerable weight due to her extensive experience teaching H.B., provides a more compelling explanation.
GCSSSD's evaluation of February 1999 reviewed the annual goals and objectives for H.B. and indicated significant improvement in several areas, including pre-academic skills, such as sorting and identifying differently sized objects; fine motor skills, such as cutting and drawing; personal and social skills, such as playing cooperatively with other children and complying with teachers' directives; gross motor skills, such as balancing on one foot and being able to change directions while crawling or walking; and self-help skills, such as brushing her teeth and washing her hands and face independently. (P-32.) The February 1999 evaluation indicated that H.B. experienced "some regression" and "babbling" in the area of language skills, however. (P-32.) Objective 6E stated that H.B. had occurrences of "babbling" in the objective of strengthening her lips and tongue movement. (P-33.) Objective 6A noted specific "regression" in the objective of improving "her ability to follow verbal directions and commands." (P-33.)
The evaluation indicated H.B. had "mastered" 5 out of 22 specific objectives under these annual goals, meaning that she could complete the objective, in most cases, at least 3 out of 4 times. As for other objectives, the evaluation stated that H.B. had "shown improvement," while in other areas, H.B. could complete the objective 2 out of 4 times. See P-32.
Comments under Objective 6A noted specifically that H.B. was able to complete 20% of "come here" commands, 60% of "take it" commands, 10% of "put it here" commands, 35% of "give it to" commands, and 50% of "yes/no" responses. (P-33.)
Margaret Daly testified that she did not contact H.B.'s case manager or Deptford regarding H.B.'s slight regression in this area because it was "not significant enough." Tr. 2/2/00, at 119:9-17. Further testimony of Daly indicated, however, that Deptford did have a plan developed to deal with her behaviors that interfered with her learning, specifically referring to the classroom strategies provided by the Pyramid Educational Consultants to address certain behaviors. Tr. 2/2/00, at 119:18-21, 120:16-23. Ms. Daly testified that a behavior modification system, or a reinforcement system, was developed around February. The April 1999 IEP indeed referred to "individualized and small group instruction using PECS and verbalizations in a well-structured classroom which utilizes a behavior modification system." R-3 at 2. The behavior management system was to "reward for appropriate behavior." IEP, 4/20/99, at 3; R-3. This system essentially rewards the child with a token if the child succeeds in not exhibiting certain behavior over an extended period of time. H.B.'s program was a five token program that rewarded her for good on-task behavior and for no aggression. Tr. 2/2/00, at 193:2-4.
Although the ALJ based his decision in part on the absence of a program to correct H.B.'s slight regression, the record demonstrates that the April 1999 IEP specifically provided for implementation of a behavior management system, and that one was currently being utilized in the classroom, to combat H.B.'s slight regression in certain areas.
The ALJ specifically pointed to "behaviors [that] did interfere with [H.B.'s] learning. However, no specific goals were set forth to deal with that identified problem." ALJ, 12/6/00, at 6.
This Court credits Ms. Daly's testimony regarding the behavior modification system and on other issues in this case due to her considerable teaching experience, spanning from fall 1997 to spring 1999, with H.B.:
My experience and expertise in working with these children gives me enough knowledge on different strategies and approaches to use when one of these situations comes up, and it's not rare that a child will experience changes in behavior, changes in educational needs . . . and I think that I was aware enough of H. and knew her well enough to be able to implement an appropriate program within the classroom.
Tr. 2/2/00, at 126:17-127:2.
Defendants assert that the elimination of DTT from the IEP rendered the IEP inappropriate. While it is true that Deptford denied H.B.'s parents' request for 30 hours of home DTT instruction by Partners in Therapy, the record demonstrates that, although the April IEP did not specifically mention DTT as the March 1999 IEP had done, H.B. received DTT instruction at CDC and would have continued receiving DTT instruction at CDC during the 1999-2000 school year. The testimony of witnesses in the administrative proceedings demonstrates that DTT was incorporated into the methodology employed by personnel at CDC. H.B.'s classroom teacher Margaret Daly, in particular, testified that H.B. was given approximately 30 minutes of DTT per day from February 1999-June 1999 at CDC. Ms. Daly testified that these DTT sessions were "not written in the IEP." Tr. 2/2/00, at 133:10-23. In addition, the basic program for the 1999-2000 school year "was the same" as that for the previous 1998-99 school year, which had specifically referred to DTT in the IEP. Tr. 2/2/00, at 39:15-24. Furthermore, discussions between H.B.'s parents and Margaret Daly indicated that Deptford was amenable to an additional 10 hours of DTT instruction that was to supplement the April 1999 IEP. What had not been agreed upon, however, was the 30 hours of home-based DTT instruction requested by H.B.'s parents and denied by Deptford.
Furthermore, defendants' argument that H.B. required the 30 hours of DTT they had requested is questionable, as the record indicates that an inordinate amount of DTT instruction may be damaging. Todd A. Harris, Ph.D., an educational consultant, also provided a report dated January 9, 2000, and testimony during the administrative proceedings. (R-13.) Dr. Harris observed H.B. at the Goddard School preschool classroom for approximately 60 minutes, and then observed H.B. in her home-based discrete trial program for about 90 minutes, both of which occurred on December 20, 1999. (R-13.)
Dr. Harris stated that "although discrete trial training is appropriate for teaching certain types of skills (i.e., discrimination skills, pre-academics), to rely on just this type of lesson format would be a mistake. To enhance spontaneity and generalization, incidental teaching and chaining strategies should also be employed." (R-13 at 5.) Dr. Harris was concerned regarding the use of discrete trials as the only type of lesson format and associated problems with skill generalization and spontaneity. Dr. Harris felt that this type of format can impede on a child's independence and ability to take acquired skills and use those skills in novel situations and other settings.
Ms. Daly also discussed the negative effects that 30 hours of DTT may have on H.B.: "H.B. is in school for 30 hours a week. A lot of times, what happens is when — when a program is implemented at home, they may add on 30 and 40 hours. That's like asking a child to work for 70 hours a week. And if you're talking about a child between the ages of 3 and 5, it ends up being detrimental as — detrimental rather than beneficial." (Tr. 2/2/00, at 92:24-93:5.)
DTT as incorporated into the methodology utilized by CDC personnel was not the traditional "Lovaas" form of DTT employed by Partners in Therapy and specifically sought by H.B.'s parents. Tr. 2/2/00, at 77:18-78:5.
Mr. Sherman had not officially offered the 10 hours of home-based DTT to H.B.'s parents, however. Tr. 2/1/00, at 134:13-135:13.
Thus, while H.B. asserted at oral argument that the DTT was deleted from the April 1999 IEP and that PECS took the place of DTT instruction, the record demonstrates by a preponderance of the evidence that DTT would have been incorporated in the child's instruction at CDC during the 1999-2000 school year in the same manner and quantity provided in the child's program at CDC the previous year. Although 10 hours of home-based DTT was discussed as a possible supplement to the child's program, this Court does not find by a preponderance of the evidence that 10 hours of home-based DTT would have conclusively been provided in the April IEP. Furthermore, the correspondence between H.B.'s parents and Deptford indicate that H.B.'s parents pulled H.B. out of CDC at 12 noon starting March 20, 1999, not because the April IEP (which had not yet been created) called for no DTT instruction, but because Deptford had denied the parents' request for the additional 30 hours of DTT per week. Based on this evidence, this Court finds that DTT instruction, though not provided in the quantity that H.B.'s parents had requested, was not eliminated as defendant suggests, and would have been implemented in the child's program pursuant to the April 1999 IEP.
This Court notes, however, that inclusion of all specific methodologies need not be included in the IEP. In evaluating the adequacy of an IEP document, the District of New Jersey stated that "we would not find that applied behavior analysis must be included in the program or the IEP for this child, but rather would view it as one available methodology which the district may employ if it so chooses." D.B. v. Ocean Township Bd. of Educ., 985 F. Supp. 457, 536 n. 59 (D.N.J. 1997) (citing Honig v. Doe, 484 U.S. 305 (1988) (observing "the inescapable fact that the preparation of an IEP, like any other effort at predicting human behavior, is an inexact science at best")), aff'd by 159 F.3d 1350 (3d Cir. 1998).
Defendants also assert that the proposed program embodied in the IEP was inappropriate because and H.B. had outgrown her placement at CDC. The record does demonstrate that H.B.'s level of skills and functioning exceeded those of her peers at CDC. Ms. Daly's testimony indicated that H.B.'s aggressiveness may have stemmed from H.B.'s communication skills progressing above those children in her classroom and her resulting frustration in trying to communicate with lower functioning children. Tr. 2/2/00, at 185:3-20.
Although Dr. Harris's report was written subsequent to the April 1999 IEP meeting, his report that "it is critical that [H.B.] is with more social peers with better communication skills (such as a regular preschool classroom . . .)" provides further support for this proposition. (R-13 at 6.)
However, the record shows that H.B.'s educational program was altered to allow for more interaction with children with higher skills. The April 1999 IEP outlined changes that would have allowed for meaningful educational growth. The April 1999 IEP placed H.B. at CDC only in the morning to allow for ABA techniques, including DTT. In the afternoons, H.B. was to be placed at the Pine Acres School, in either its handicapped classroom or its regular classroom. Testimony from H.B.'s classroom teacher indicated that this placement was made to help H.B.'s transition from a classroom for special needs children to one for regular children, especially considering H.B.'s parents' wishes to have their child attend a regular school by September 2000, when she would begin attending kindergarten. In addition, Ms. Daly testified that at CDC they "did provide her with time in a class where children had more superior skills." Tr. 2/2/00, at 185:7-10. Nevertheless, considering that H.B. had possibly become aggressive due to having progressed more than other children in her classroom at CDC and that the children with more superior skills were likely to have moved on from CDC, Deptford's placement of H.B. at Pine Acres in the afternoon would likely have allowed for some progression of H.B.'s skills without undermining the ABA techniques, including DTT instruction, that H.B. would have received at CDC in the morning. Such a placement would have likely conferred a meaningful benefit, considering H.B.'s combination of needs for individualized instruction, ABA techniques, and placement with higher level peers, and the goal of mainstreaming into a regular classroom.
Evidence indicates that the regular classroom consisted of children with nonclassified problems, such as speaking with a stutter, speaking English as a second language, and testing below normal prior to entering kindergarten. Tr. 4/19/00, at 251:20-25-252:1-10.
The record demonstrates that the April 1999 IEP sufficiently addressed and tried to resolve the problems encountered in H.B.'s education that arose after implementation of the previous IEP. Unlike the ALJ's finding, this Court finds that the April 1999 IEP sufficiently addressed problematic areas of H.B.'s education that had been discovered during evaluations of her progress, and provided for reasonable methods and educational placements to correct H.B.'s increasingly bad behaviors and to address particular needs not previously met. This Court therefore finds that H.B.'s educational program as embodied by the April 1999 IEP was reasonably calculated to confer a meaningful benefit to H.B.
b. Whether the IEP Provided for the Least Restrictive Environment
Defendants argue that the IEP at issue did not provide H.B. with an appropriate education in the least restrictive environment. The Third Circuit in Oberti adopted a two-part test for assessing a school district's compliance with the LRE requirement of the IDEA. "First, the court must determine whether education in the regular classroom, with the use of supplementary aids and services, can be achieved satisfactorily." Oberti, 995 F.2d at 1215. Factors to consider in determining this first prong are: (1) the steps the school district has taken to accommodate the child in a regular classroom; (2) the child's ability to receive an educational benefit from regular education; and (3) the effect the disabled child's presence has on the regular classroom. Id. at 1215-17. The second requirement mandates that if the court finds placement outside a regular classroom is necessary, the court must examine "whether the school has mainstreamed the child to the maximum extent appropriate, i.e., whether the school has made efforts to include the child in school programs with nondisabled children whenever possible."Id. T.R. v. Kingwood Township Bd. of Educ., 205 F.3d 572 (3d Cir. 2000) presents similar facts and is instructive in that regard. In T.R., the district court held that a handicapped student's placement preschool program in which half the children were handicapped was the least restrictive environment. Such a class was deemed more restrictive than a "regular," fully-mainstreamed preschool class. Under the IDEA's strict mainstreaming requirement, the Third Circuit stated that a hybrid preschool program such as this "would ordinarily provide the LRE only under two circumstances: first, where education in a regular classroom (with the use of supplementary aids and services) could not be achieved satisfactorily or, second, where a regular classroom is not available within a reasonable commuting distance to the child." T.R., 205 F.3d at 579. The court stated that the record contained no evidence that the child could not have been educated satisfactorily in a regular classroom. In addition, testimony indicated that the child could have received a meaningful benefit from a regular classroom. The court stated that "the school district is required to take into account a continuum of possible alternative placement options when formulating an IEP, including placing children with disabilities in private school programs for nondisabled preschool children." T.R., 205 F.3d at 579-80 (internal quotations omitted). The Third Circuit held that the district court erred in not inquiring into whether regular classroom options were available within a reasonable distance to implement the child's IEP, remanding to the district court to consider the question.
In reviewing the record, the Court's first inquiry is whether education in the regular classroom, with the use of supplementary aids and services, could have been achieved satisfactorily. The Court first looks at what steps the district took to accommodate the child in a regular classroom. In the instant matter, H.B.'s parents wanted their child to be placed in a typical classroom with regular children who did not have special needs. H.B.'s parents made their wishes known to Deptford and specifically asked for H.B. to be placed in a regular class at the Baldwin School, a public school in the Pennsauken School District. Deptford did seek admission to that school on H.B.'s behalf, but the school unfortunately replied that it lacked space for her.
Although H.B.'s parents did not have other specific suggestions at the April 20 IEP meeting, case manager Janet Ulrich stated that she "had numerous phone conversations with Mrs. B. [Mrs. B.] mentioned several different programs to me that she was interested in. One was the Baldwin School in Pennsauken. Another one was Little Angels, which was a preschool her son had attended. She mentioned Here We Grow Nursery School, that was of St. John of God." Tr. 2/1/00, at 41:22-42:3. Although Mr. Sherman applied on H.B.'s behalf to the Baldwin School, which responded that it was full, Ms. Ulrich stated that she "never spoke to the preschools directly as to whether they would allow any type of special education students to attend their program with an aide. I never spoke to them myself so I cannot testify about that. . . ." Tr. 2/1/00, at 44:24-45:3. Ms. Ulrich stated that she did not investigate these options because "[Mrs. B.] called me back and changed her mind before I had a chance to investigate them." Tr. 2/1/00, at 57:23-24.
Thus, without independently investigating possible placements suggested by the parents, Deptford placed H.B. at CDC for individual and small group instruction, then at Pine Acres in its handicapped class or classroom with "nonclassified" students. As in T.R., this placement would be considered more restrictive than a "regular" mainstreamed class would be. Janet Ulrich, H.B.'s case manager, testified that in the district's determination of H.B.'s placement, she considered the two components of a free appropriate public education in the least restrictive environment by assessing H.B.'s progress, H.B.'s parents' wishes to have H.B. in a regular kindergarten class, and concluded that H.B. should be placed at "Child Development Center where she could continue to get her applied behavior analysis and speech language therapy, and occupational therapy in the morning, and then place her in a public school afternoon handicapped setting . . . [i]n an effort to get her into a public school program, and to get her more prepared for a regular kindergarten program." Tr. 2/1/00, at 52:23-53:20.
As for the CDC placement, Mr. Sherman stated that the State had identified the program as a "level four" on a scale of one to fourteen, with one being the least restrictive and fourteen being most restrictive. Tr. 10/25/00, at 130:24-131:4.
In stating that Deptford objected to the 30 hours of home-based DTT, Ms. Ulrich reasoned that "we as a school district focus on least restrictive environment, which places a child in a program with other children." Tr. 2/1/00, at 140:25-141:2. This Court contends that mere "placement with other children" does not comport with the strict LRE requirements under the IDEA.
The evidence suggests, however, that the district did not discuss the extent to which H.B. could possibly be educated in a regular classroom setting, as Ms. Daly's testimony regarding the district's discussion at the April 1999 IEP indicates:
Q Is there any reference in the IEP about any plans concerning whether H. can have her education in a non-segregated environment?
A Discussions with who?
Q Is it addressed in the IEP?
A I don't understand the question.
Q Is it addressed in the IEP whether H. needs to have her education in a segregated setting such as your school?
A Can I look?
Q Yeah.
A It does say, "H.'s developmental delays require a more specialized educational program."
Q And does that mean that the specialized program has to be in [a] segregated environment like your school?
A It doesn't say that here.
Q Okay. So that's not an issue that was addressed, or at least it — it doesn't appear to be addressed in the writing of the IEP; isn't that correct?
A No, it doesn't.
In addition, in the only exchange during Mr. Sherman's testimony regarding the district's determination of the least restrictive environment for H.B., Mr. Sherman's response indicates some level of confusion:
Q Okay. There's no determination made by anyone as to what was the least restrictive program for H.B. though, was there?
A I don't understand your question.
Tr. 10/25/00, at 132:1-4.
Under the first prong of the first inquiry, the district took few steps to accommodate H.B. in a regular classroom. Even with suggestions offered by H.B.'s parents, the district did not investigate the options given to them by H.B.'s parents, instead placing her in a setting considerably more "restrictive" than a regular classroom. Further, the evidence suggests that the district did not initiate any discussion regarding possible regular classroom placements for H.B., even though such placements were likely available.
H.B.'s subsequent placement at Goddard School supports such a conclusion.
The Court, under the second prong, looks at whether H.B. is able to receive an educational benefit in a regular classroom setting. This requires reviewing H.B.'s educational progress at the time of the April 1999 IEP meeting. Here, H.B. functioned with developmental delays and consequently required individual instruction to minimize the amount of prompting needed for H.B. to initiate and complete a task. Utilization of ABA techniques, including DTT instruction, appeared to be necessary to H.B.'s education. The concern that "H's developmental delays require a more specialized educational program" was noted in the April 1999 IEP.
While Dr. Harris's testimony refers to observations conducted post-April 1999, his recommendations are nevertheless instructive. He stated, "I feel that for H. to be appropriately educated she needs to spend about 30 hours per week in instructional educational environment that employs ABA techniques." Tr. 3/7/00, at 109:10-13.
Ms. Daly also noted that "[a] setting with normal children would not provide the specialized services that . . . [CDC] provide[s]. . . . The . . . teachers are not trained in different behavioral techniques and also they are not trained in specific functional skill development; strategies to teach children with autism; strategies to teach speech and language skills to children with autism." Tr. 2/2/00, at 177:15-23. She further testified that a one-to-one aide in a regular classroom would not adequately provide such individualized instruction that H.B. needed in order to function appropriately with typically developing peers. Tr. 2/2/00, at 180:10-24.
However, the record also shows that H.B. needed to be and, indeed, could benefit greatly from, an environment of socially and educationally advanced peers. H.B. had progressed to a level that exceeded those of her peers at CDC, presumably leading to her aggressive behavior. Ms. Daly reaffirmed this conclusion when she testified that "H. was probably on the higher end of . . . the functioning ability of the children in the classroom." Tr. 2/2/00, at 135:2-3. In addition, she stated, "[H.B.] had obtained some skills that she would benefit from being included in a district program for less severe handicapped children." Tr. 2/2/00, at 187:19-21. Because most of her older peers would be leaving CDC, it appears that H.B. remained at the CDC location as one of its highest functioning students. The need for H.B. to be around more advanced peers is reflected by Dr. Harris's testimony, which indicated that "[p]articularly when you're talking social skills, you have to be around other children who have those skills so she can learn." Tr. 3/7/00, at 109:18-20. H.B.'s need for exposure to educationally advanced students in order to learn skills more appropriate for children her age was therefore evident.
Based on the above, the Court finds that H.B. could have received educational benefit from placement in a regular classroom setting. While H.B. most likely required some instruction in a small group or individual setting, it appears that she nevertheless needed to be exposed, part-time at a minimum, to more advanced students with better communication and social skills and could therefore receive a significant amount of educational benefit in a regular classroom environment.
Under the third prong, the Court looks at the effect that H.B. would have on the regular classroom. A review of the administrative record gives no indication as to the effect H.B.'s presence would have on students or teachers in a regular classroom. While testimony and evaluations reported that H.B. showed aggression to students in her handicapped school setting at CDC, it is not certain that such behavior would have continued around typical peers in a regular classroom environment; indeed, it is conceivable that such behavior would have subsided, given H.B.'s exposure to more advanced peers.
This Court, however, does envision that H.B.'s inclusion into a regular classroom setting under the LRE provision of the IDEA would allow for numerous social benefits to the classroom and the community at large, as discussed by Chief Judge Gerry:
We are impressed by the common sense of this preference for inclusion. Brown v. Board of Education, 347 U.S. 483, 493, 495 (1954), highlighted the importance of education and the inequality inherent in any segregated educational system. The point of the IDEA is to bring children with disabilities back into the community to which they belong. The fact that this approach benefits every member of the community, not simply children with disabilities, is often overlooked. The goal of this type of integration is not only for people with disabilities to learn to live and function in the community, but also for those community members without disabilities to learn to live and function along with them.Oberti v. Bd. of Educ. of Borough of Clementon Sch. Dist., 789 F. Supp. 1322, 1326 n. 7 (D.N.J. 1992), cited in D.B. v. Ocean Township Bd. of Educ., 985 F. Supp. 457, 489 n. 25 (D.N.J. 1997).
Under the first inquiry of the LRE requirment, education in the regular classroom with supplementary aids and services could have been achieved satisfactorily, on a part-time basis at a minimum. The record contains no indication that, other than inquiring at Baldwin School at the request of H.B.'s parents, the school district tried to accommodate H.B. in a regular classroom setting. There is no indication in this voluminous record that the school district considered a greater degree of mainstreaming or that it ruled it out for any reason. Had such a reasoned approach been evident, this Court might well have deferred to the experience and expertise of those educators who knew H.B. best. The Court finds no articulated basis for the assumption that some amount of regular classroom environment would not be satisfactory. However, while H.B. could have educationally benefitted from such a placement, she had certain needs that required individualized instruction utilizing ABA techniques in a small group or one-to-one setting. While H.B.'s placement in a regular classroom would have likely created a positive effect, this Court finds that H.B.'s education in a regular classroom with supplementary aids and services could have been achieved satisfactorily on a part-time basis at a minimum, with individualized instruction as a supplement.
Because this Court finds that some individualized instruction was necessary, the second requirement under the LRE provision of the IDEA thus applies. This Court must examine, if placement outside the regular classroom is necessary, whether the school has mainstreamed the child to the maximum extent appropriate, that is, made efforts to include the child in school programs with nondisabled children whenever possible. As discussed under the first prong of the first inquiry, Deptford took few steps to accommodate H.B. in a regular classroom. Although H.B.'s parents offered several suggestions regarding regular classroom placement, the district did not investigate these possible options. Instead, without discussion as to whether H.B. could be educated in a regular classroom, Deptford placed H.B. at CDC and at Pine Acres in either its handicapped classroom or its classroom of students with "nonclassified" problems. Such a setting is considerably more "restrictive" than a regular classroom. Because H.B. showed high aptitude and needed to learn skills from peers in a regular classroom environment, it would have been prudent for Deptford to place H.B. at a regular school program instead of the Pine Acres program. The educational placement proposed by the April 1999 IEP, however, would not have provided H.B. with exposure to any "regular" children at all.
Further, the evidence suggests that the district did not initiate any discussion regarding the possibility of regular classroom placements for H.B. Deptford's application to the Baldwin School on H.B.'s behalf suggests that Deptford was aware that such a placement could and would have met her educational needs. The fact that Deptford did not approach the determination of H.B.'s program with the possibility of placement in a regular classroom disappointingly reflects the district's shortfall in providing H.B. with a free appropriate public education in the least restrictive environment as envisioned by the IDEA statute. Based on the above, Deptford did not make sufficient efforts to include H.B. in school programs with nondisabled children whenever possible.
The IDEA mandates that children with disabilities be educated with nondisabled children "to the maximum extent appropriate." 20 U.S.C. § 1415(5)(B). Under § 1415(5)(B), the least restrictive environment "is the one that, to the greatest extent possible, satisfactorily educates disabled children together with children who are not disabled, in the same school the disabled child would attend if the child were not disabled." Scott P., 62 F.3d at 535. This statute requires "maximal educational integration of disabled children with children who are not disabled, and restricting separate schooling to situations when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." Id. The IDEA and its regulations require schools to provide supplementary aids and services to enable children with disabilities to learn whenever possible in a regular classroom. See Oberti, 995 F.2d at 1216 (citing 20 U.S.C. §§ 1401(a)(17), 1415(5)(B); 34 C.F.R. § 300.551(b)(2)). The statute's requirements reflect the "strong congressional preference" for integrating children with disabilities in regular classrooms. Oberti, 995 F.2d at 1213-14.
Because the IDEA's mainstreaming requirement favors "regular" placement of students with special needs whenever possible, Deptford should have inquired whether regular classroom options were available and appropriate for H.B. The record demonstrates that Deptford did not independently inquire into regular classroom settings, instead placing H.B. part-time in a classroom with peers with nonclassified problems. Such a placement without proper inquiry into other options does not comport with the IDEA's procedural requirement that "assure that, to the maximum extent appropriate, handicapped children . . . are educated with children who are not handicapped." 20 U.S.C. § 1415(5)(B).
Where the IEP's placement departs from assigning the special needs child to an educational setting with non-disabled children, Section 1415(5)(B) can nonetheless be satisfied if the district demonstrates that education in a regular classroom (with the use of supplementary aids and services) could not be achieved satisfactorily, or that a regular classroom was not available within a reasonable commuting distance to the child, see T.R., 205 F.3d at 579. Upon the record of this case, H.B.'s education in a regular classroom, at least part-time, would likely have been achieved satisfactorily if supplemented with individualized instruction. However, the district failed to adduce evidence demonstrating that regular classroom options within a reasonable distance to H.B. were not available. Under T.R., Deptford's educational program as proposed in its April 1999 IEP fails to comport with IDEA's LRE requirement.
Indeed, H.B.'s subsequent enrollment at the private Goddard School, a school in the same county as CDC and located 20 minutes from H.B.'s home, Tr. 4/19/00, at 241:5-16, demonstrates that regular classroom placements within a reasonable distance to H.B. were available.
Here, due to its decision to provide a "restrictive" educational program to H.B. despite the option of regular classroom placements, the district did not include H.B. in school programs with non-disabled children whenever possible. Deptford therefore failed to "mainstream the child to the maximum extent appropriate," as required by the Third Circuit in Oberti. Accordingly, this Court concludes that Deptford failed to provide H.B. with an educational placement in the least restrictive environment.
CONCLUSION
Because the April 1999 IEP properly addressed the educational needs of H.B. at the time of the IEP's creation, this Court finds that the April 1999 IEP was designed to confer a meaningful benefit on H.B., and the ALJ's decision to the contrary will be reversed. Deptford's IEP, however, did not provide H.B. with an educational program in the least restrictive environment, as required by the IDEA, and to this extent, the ALJ's decision will be affirmed. The net effect of this ruling is that the Court finds that, for the period of June 1999 until June 2000, the school district was obligated to provide the equivalent of the April 1999 IEP in a less restrictive environment consisting of at least part-time regular classroom experience with appropriate supplemental aids.
This Opinion does not address the issue of what remedy, if any, is appropriate to compensate H.B. to the extent, if any, that her educational experience for June 1999 to June 2000 fell short of the FAPE which would have been defined by the April 1999 IEP but including the less restrictive environment of a part-time classroom.
The Court is mindful that the school district may have been ordered to make reimbursement to H.B.'s educational providers, both by the ALJ's Order of December 6, 2000 and this Court's interim enforcement Order of December 12, 2001, to an extent greater than the educational services actually required to be rendered under the IDEA by the district's April 1999 IEP. Whether such excess reimbursement has been made, and whether such excess shall constitute a set-off in favor of the school district, remain to be determined in the Remedy phase of this case.
The Court will schedule a Remedy hearing on April 26, 2002, at 2:00 P.M.H.B.'s brief and affidavits regarding appropriate remedy will be due 30 days from today's date, and Deptford's response shall be due 15 days thereafter. The accompanying Order is entered.
ORDER
THIS MATTER having come before the Court upon motion by plaintiff Deptford Township School District for summary judgment against defendant H.B. in its appeal of the administrative decisions rendered by Administrative Law Judge John R. Futey on December 6, 2000 and January 3, 2001; and this Court having reviewed the parties' submissions and the administrative record below; and the Court having heard oral argument on January 25, 2002; and for reasons stated in the Court's Opinion of today's date;
IT IS on this day of February, 2002, hereby
ORDERED that plaintiff's summary judgment motion is hereby DENIED ; and it is
FURTHER ORDERED that the decisions of Administrative Law Judge John R. Futey are hereby AFFIRMED to the extent that he found that the April 1999 IEP did not provide H.B. with an educational program in the least restrictive environment; and the decisions of the Administrative Law Judge John R. Futey are hereby REVERSED to the extent that he found that the April 1999 IEP did not confer a meaningful benefit on H.B.; and
IT IS FURTHER ORDERED that on April 26, 2002, at 2:00 P.M., this Court will hold a remedy hearing to determine whether H.B. is entitled to any further relief to compensate for the deficit, if any, of her educational experience for June 1999 to June 2000 from the FAPE which would have been defined by the April 1999 IEP but including the less restrictive environment of a part-time regular classroom, and the set-off, if any, to which the school district is entitled for its excess reimbursement of H.B.'s educational providers under the ALJ's Order of December 6, 2000, and this Court's Order of December 12, 2001.