therapeutic approach through trained surrogate parents, utilization of a contained classroom for emotionally disturbed children, outside therapy, and inclusion of the F.G.'s through a parent training program. YBP's establishment of limited and long-term goals seemed to Volenski a reasonable approach and, together with the other enumerated facets of the program, was the reason he recommended it to the F.G.'s.
Volenski made two other critical observations in his testimony: first, that B.G.'s educational and emotional needs were inseparable in terms of program placement; and second, that the CST's recommendation that B.G. be classified Perceptually Impaired ("P.I.") was inappropriate since it ignored B.G.'s emotional disturbance.
During Volenski's therapeutic intervention with B.G., he was alerted to certain death wish ideation that led him to believe that B.G. was potentially suicidal. This focus, together with B.G.'s anger, depression and withdrawal, obliged Volenski to refer B.G. for a psychiatric evaluation in order to determine possible psychiatric factors relating to B.G.'s behavioral problems.
On March 24, 1986, Dr. Felicia Oliver-Smith, a duly licensed psychiatrist, interviewed B.G. Her psychiatric evaluation confirmed for the F.G.'s the earlier observations of Volenski. Oliver-Smith concluded that B.G. "appears to be a multi-handicapped individual with neurological dysfunction, emotional disturbance and social maladjustment." She recommended a residential placement with family and individual therapy due to the unremitting difficulties between B.G. and his parents, particularly his mother. As an interim plan, Oliver-Smith suggested Woodbridge Child Diagnostic Center in order to get a better diagnostic picture of B.G. outside the home. Through this type of evaluation, she reasoned, the most appropriate placement could be determined for him.
On February 27, 1986, while Volenski was treating B.G., F.G. requested, in writing, a CST evaluation. At that time B.G. was at the Brookside School in a normal fifth grade placement. His assigned teacher was Sobelson. The evaluation commenced in March 1986 though Sobelson, according to the school principal, thought it premature.
A CST evaluation is comprised of three components representing various disciplines integral to the educational process. They include the social, learning disability and psychological aspects of a student's profile. Each discipline is represented by a certified trained professional who prepares a report. Subsequent to the completion of their reports they meet ("staffing") and discuss their findings preliminary to the preparation of a conference report containing a classification and an IEP. A CST conference with the parents follows the report preparation.
B.G.'s Child Study Team consisted of Bridget DePinto, a School Social Worker, Ethel White, a Learning Disability Teacher Consultant ("LDTC"), and Robert Hegedus, a Certified School Psychologist. DePinto was in charge of preparing the CST report. Her social evaluation consisted of a home interview, two observations of B.G. in class, a conference with Sobelson and a review of outside consultant reports. At the home interview on March 12, 1986, the F.G.'s demonstrated great concern as to B.G.'s home behavior and its impact on existing family relationships. Mrs. F.G. was distraught and confided that she had done everything she could do. Though the negative characteristics of B.G.'s personality dominated the interview, F.G. did stress that "He's a nice boy. He's not mean, he doesn't do mean things to other boys or other girls."
In May 1986, White tested B.G., spoke with Sobelson and also spoke with B.G.'s comp-ed teacher. White's duty as the LDTC is to determine how a child functions in a classroom and to evaluate the child's overall level of classroom performance.
Hegedus's input consisted of performing other tests and a comp-ed observation and holding discussions with the school's psychiatric consultant, Samuel Levine, M.D.
Meanwhile, as other reports were being prepared, Sobelson, in two reports dated February 28, 1986 and April 11, 1986, advised the CST that B.G.'s personal and social behavior in class was very poor. He experienced problems in social interaction with his peers and was difficult to deal with.
Her April report characterized B.G.'s personal and social behavior as " very, very poor." (emphasis added).
When DePinto summoned the CST for staffing on May 19, 1986, the information available consisted of reports prepared by DePinto, White, Hegedus, Dr. Vicci
(an optometrist), the outside consultant reports of Volenski, Oliver-Smith and Dr. Gold,
and the written observations of Sobelson. Additionally, Hegedus had spoken to both Levine and Volenski. Present were the CST members, Sobelson and the school principal, Mr. Mandel. After a review of all of these materials, the CST concluded that a classification of Perceptually Impaired was appropriate. Each member of the CST testified that prior to the staffing, none of them had a preconceived notion as to the proper educational handicap classification of B.G. DePinto said all reports were considered and evaluated as to their relevance in the educational setting. In discussing the reports of Volenski, Oliver-Smith and Gold, she commented that the behavior in those reports was not the behavior the CST observed in the classroom setting. Thus, an E.D. classification was determined to be inappropriate. Hegedus, in his testimony, further elaborated that the Volenski and Oliver-Smith reports followed a medical model and did not focus sufficiently on B.G. in the classroom setting. He was satisfied, as a Certified School Psychologist, that such reports dealt with emotional difficulty in the home environment and had no impact in the educational setting. In his opinion, a P.I. classification was conducive to meeting B.G.'s educational needs and a proposed YBP placement was therefore not in B.G.'s best interest.
After determining the P.I. classification, an IEP was developed for B.G.
It consisted of the following:
1. Transfer to Orange Avenue School.
2. Assignment to a self-contained classroom staffed by a certified teacher of the handicapped, and a teacher's aide.
3. Individualized instruction and mainstreaming as to non-academic curricula.
4. Participation in a school swimming program.
With the classification decided and the IEP developed, DePinto proceeded to have the conference report and IEP finalized in preparation for a meeting with the F.G.'s.
In the latter part of May 1986 the F.G.'s met with the CST. Though F.G. was cynical about B.G. receiving a fair evaluation "when the bucks are on the line and somebody has to pay for it", both he and his wife were relatively optimistic that B.G. was going to be classified as E.D. DePinto had been attentive, sympathetic, and reassuring in her contacts with the F.G.'s and requested input from them as to potential placements for B.G.
Volenski attended the conference with the F.G.'s. Much to their collective surprise, B.G. was classified as P.I. The F.G.'s were aghast and after listening, left in "absolute, total, sheer disgust" because F.G.'s worst fears had been realized.
He characterized the CST conference as an "absolute, positive charade" and attributed the recommendation to "nothing more than a school board fearful that they were going to have to pay for a kid to go to a special treatment center and they didn't want to fund it."
The F.G.'s did not sign the IEP as this would have indicated acceptance of the classification and program recommended by the CST. Each left with a copy of it with the understanding they would be provided an opportunity to study the report and reconvene the CST after digesting it. On June 6, 1986 F.G. advised the Child Study Team by letter that he refused to consent to the proposed IEP. F.G. viewed any further contact or effort to request a different placement as a "waste of time." The F.G.'s made no attempt to contact William Cashman, the school district Director of Special Services, nor did they request a CST follow-up meeting.
In advance of the CST meeting in late May, the F.G.'s had been gathering literature on potential placements for B.G. By chance circumstance, F.G.'s brother called his attention to YBP, a program located in Colorado that specialized in attachment disorders. F.G. received the literature and shared it with both Volenski and Hegedus. Volenski recommended it. Hegedus thought it was not in B.G.'s best interest. By the first week in June, the F.G.'s had determined to place B.G. in YBP if a space became available.
F.G. was resigned to paying B.G.'s monthly costs of approximately $ 2,000.00 but hoped to be eventually reimbursed if he were successful in future litigation pertaining to B.G.'s status as E.D. YBP was not then, and is not now, on the approved list maintained by the New Jersey Department of Education.
YBP notified F.G. that there was a potential opening for placement of B.G. On June 15, 1986, F.G. and his family traveled to Evergreen, Colorado. B.G. was conditionally accepted subject to two weeks of family therapy in advance of formal acceptance. At the end of June, B.G. was formally accepted into YBP and the F.G.'s returned home.
On June 10, 1986, the Cranford Board of Education requested a due process hearing under N.J.A.C. 6:28-2.7 because of the refusal by the F.G.'s to consent to the initial placement. Thereafter, the Department of Education held a settlement conference on July 10, 1986, which was unsuccessful. September 22, 1986 was then assigned as a peremptory hearing date. On request of the Commissioner of Education, an ALJ was assigned to hear the matter of classification and appropriate placement. Hearings were held on September 22, 23 and 24, October 23 and November 20, 1986. The ALJ rendered her decision on December 10, 1986 and found that B.G. should be classified as E.D. Since the CST had mistakenly classified B.G. as P.I. and had not focused on his placement in a program placement appropriate for E.D., the ALJ ordered the CST to consider appropriate placements for B.G., including YBP.
She ordered B.G.'s continued placement at YBP until the Child Study Team had the opportunity to develop a suitable IEP and placement for him. The ALJ did not retain jurisdiction.
Her decision was final pursuant to 20 U.S.C.A. § 1415(e) and neither party appealed.
While the due process hearing was ongoing and after its conclusion, B.G. was participating in YBP and also attending the sixth grade in the Jefferson County Public School system ("Jefferson").
At Jefferson he did not receive special education service assistance; he was "mainstreamed"
and unclassified. However, individual therapy and group therapy were provided to B.G. by the school psychologist on a weekly basis. Some confusion exists as to whether B.G. was in fact classified as Emotionally and Behaviorally Disturbed ("EBD") as well as the basis for his receiving school psychological services as an unclassified student. Documentary evidence supplied by Jefferson appears to support the conclusion that B.G. was in fact unclassified and not enrolled as a special education student.
During January 1987, Cashman and Hegedus, in an effort to comply with the ALJ's order to develop a suitable IEP and placement for B.G., contacted Jefferson. Each learned that B.G. was being mainstreamed and was not receiving special education service assistance. They were particularly surprised, in light of their prior IEP recommendation, that he was not receiving self-contained classroom assistance. Hegedus also sought information from a program called SCRIPT, which references all day and residential placements throughout New Jersey and surrounding states.
Also, Cashman had received a letter from Eileen Ware, an employee of the State Department of Education, dated February 10, 1987, advising that YBP was not on the Department's approved list and that in her opinion YBP was not an educational program. Accordingly, the Youth Behavior Program was not considered by the CST as an appropriate placement for B.G., despite the ALJ's order.
The CST held another preliminary planning staffing conference, considering the following information: reports from B.G.'s previous staffing (when he was classified as P.I.), B.G.'s current status in Jefferson, Ware's letter and Hegedus's SCRIPT information. There had been no updated contact and retesting of B.G., no further contact with the F.G.'s, and no current contact with YBP officials. Also, Jefferson's IEP and B.G.'s current report card were missing.
At the staffing conference the CST concluded that the most appropriate educational program for B.G. in the least restrictive environment would be one that retained him in the district. The recommended IEP provided for:
1. Regular sixth grade placements (mainstream);
2. Daily resource room referral for one period to develop his organizational and study skills;
3. Counseling with the school psychologist on Monday mornings for approximately one hour;
4. Availability of an E.D., self-contained classroom, if required, for a "time-out."
In adopting this program, the CST reasoned that the Jefferson program could be duplicated in Cranford, since B.G. was mainstreamed, unclassified and not provided resource room access. They felt that the psychological component could be replicated through Hegedus, who could counsel B.G. on his attachment disorder. Members of the CST expressed their view that if their IEP was inadequate it could be supplemented or changed, but that it should be tried before its lack of success was judged. DePinto testified "that a program was not written in stone." At the time of their recommendation, the CST members were aware of other district programs that they felt would be more restrictive.
In their opinion, B.G.'s behavior pattern did not merit consideration of these programs and in fact Hegedus did not view B.G. as severely emotionally disturbed. (Id. at 121).
Having arrived at its recommendation, the CST held a planning conference with the F.G.'s on February 12, 1987. The CST presented its revised program and placement. There was no discussion of alternatives. The F.G.'s, upon request, were given a copy of the program and left. Unlike the initial planning conference, which consumed one and one-half to two hours, this one lasted 10 to 12 minutes. Cashman, who was also in attendance, was of the opinion that the F.G.'s would not accept the CST recommendation, since the F.G.'s thought YBP was the only appropriate placement. YBP placement was a program the CST was unwilling to recommend. Hegedus testified that money was not an issue in considering an appropriate placement to meet B.G.'s educational needs.
On February 25, 1987 the F.G.'s requested a due process hearing. Another unsuccessful settlement conference between the parties occurred on April 1, 1987. ALJ Klinger was reassigned to hear the matter and August 10, 11 and 12, 1987 were scheduled as peremptory hearing dates. The ALJ, in her opinion dated September 30, 1987, decided that B.G. required year-round residential placement for educational purposes and that such a placement would be the least restrictive environment. A conforming order was entered implementing her decision. She also determined that YBP was not an appropriate placement and that F.G. was not entitled to reimbursement for placing B.G. in that program. Once again, as in the prior litigation, the ALJ's decision was final and pursuant to 20 U.S.C. § 1415(e) (2) appealable by filing a complaint and bringing a civil action either in the Superior Court of New Jersey or in a District Court of the United States. The Board filed a complaint in the Superior Court of New Jersey, Docket No. L96384-87. F.G. had the action removed to this Court and consolidated with F.G.'s prior action for counsel fees. In his answer and counterclaim, F.G. concurred with the ALJ's decision except as to her legal conclusion that he is not entitled to reimbursement for YBP placement costs. F.G. also seeks reimbursement for proper and necessary costs associated with this litigation and an award of reasonable counsel fees.
(A) Legal Standards
The Education of All Handicapped Children Act is a comprehensive handicapped educational plan. See generally Board of Education v. Rowley, 458 U.S. 176, 179-84, 102 S. Ct. 3034, 3037-39, 73 L. Ed. 2d 690 (1982). In order for a state to receive federal assistance under the Act, the state must provide all handicapped children, at public expense, with a "free appropriate public education," 20 U.S.C. § 1412(1) & (2). As defined in the Act, a "free appropriate public education" includes "special education" and "related services," id. § 1401(16)-(18), as necessary to "meet the unique needs of the handicapped child," Rowley, 458 U.S. at 188-89, 102 S. Ct. at 3042. Under the EAHCA, Congress sought primarily to identify and evaluate handicapped children, and to provide them with access to a free public education. Rowley, 458 U.S. at 200, 102 S. Ct. at 3048. An important aspect of the EAHCA is the requirement of an Individualized Education Program tailored to the unique needs of the handicapped child. Id. at 181-82, 102 S. Ct. at 3038. As Justice Rehnquist observed: "Implicit in the congressional purpose of providing access to a 'free appropriate public education' is the requirement that the education to which access is provided be sufficient to confer some educational benefit upon the handicapped child." Id. at 200, 102 S. Ct. at 3048. Access to specialized instruction, along with related services that are individually designed to provide an educational benefit to the handicapped child, represents the "basic floor of opportunity" available under the Act. Id. at 201, 102 S. Ct. at 3048. New Jersey, as a recipient of federal financial assistance under the EAHCA, has enacted regulations that assure all handicapped children the right to such a "free appropriate public education." N.J.A.C. 6:28-1.1, et seq.
The interstitial detail of the EAHCA is reserved to the states, who have the right to exceed the federal minimum standards and provide greater protection and services for handicapped children. Town of Burlington v. Department of Education, 736 F.2d 773, 785 (1st Cir. 1984), aff'd sub nom. School Committee v. Department of Education, 471 U.S. 359, 105 S. Ct. 1996, 85 L. Ed. 2d 385 (1985). New Jersey has implemented the EAHCA through an array of statutes, N.J.S.A. 18A:46-1 to -46, and regulations promulgated by the State Board of Education under its "broad legislative rule-making powers." Geis v. Board of Education, 774 F.2d 575, 578 (3d Cir. 1985) (quoting D.S. v. Board of Education, 188 N.J. Super. 592, 598, 458 A.2d 129, 133, certification denied, 94 N.J. 529, 468 A.2d 184 (1983)).
By such enactments, New Jersey has chosen to impose a higher standard of special education than that required by the EAHCA. Geis, 774 F.2d at 583. As noted by Judge Gibbons in Board of Education v. Diamond, 808 F.2d 987, 992 (3d Cir. 1986), local school boards are required to provide educational services according to how the student can best achieve success in learning; despite any amendment to former N.J.A.C. 6:28-2.1, no agency statement indicates an intention to lower expectations for educating disabled children. 16 N.J. Reg. 1982 (December 5, 1983). Permitting children the fullest opportunity to develop their intellectual capacities is consistent with the New Jersey legislative findings in N.J.S.A. 18A:46-19.1; see Geis, 774 F.2d at 582.
This Court is called upon to make an independent determination of the appealable issues before it, after giving due weight to the administrative proceedings. Geis, 774 F.2d at 583. Such a review, however, is not an invitation for this Court to substitute its own notions of sound educational policy for those of the school authorities. Rowley, 458 U.S. at 206-07, 102 S. Ct. at 3051. As set forth in 20 U.S.C. § 1415(e) (2), the starting point of review is this Court's receipt of the record of the administrative proceedings, followed by the hearing of additional evidence. Thereafter, applying a preponderance of the evidence standard, this Court shall grant such relief as it determines is appropriate. This standard of review is now well settled. Wexler v. Westfield Board of Education, 784 F.2d 176, 180 (3d Cir.), cert. denied, 479 U.S. 825, 107 S. Ct. 99, 93 L. Ed. 2d 49 (1986). Thus, the Court's inquiry is twofold: "First, has the State complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act's procedures reasonably calculated to enable the child to receive educational benefits?" Rowley, 458 U.S. at 207, 102 S. Ct. at 3051.
In evaluating an IEP under the Act generally, the Court, in making its independent determination, may give the ALJ's findings such weight as it deems proper. In light of the agency's expertise, the Court must at least consider the ALJ's findings, though it is free to accept or reject the findings in part or in whole. Burlington, 736 F.2d at 791-92. In the instant case, however, the ALJ has determined that the IEP is invalid because it has not met the state's requirements pertaining to a free appropriate public education for B.G. In such a situation, the Court "should be more circumspect about its intrusion. It is hard to locate a significant federal interest in displacing a state agency's supportable ruling that one of its school systems has not complied with state standards." Id. at 792 (footnote omitted). Thus, an intrusion on the ALJ's findings would be warranted only if they are contrary to established state law. Id. at 792 & n.23.
Neither party disputes that the EAHCA specially provides for residential placement when merited. In Kruelle v. New Castle County School District, 642 F.2d 687, 692 (3d Cir. 1981), the court pointed to specific provisions of the EAHCA authorizing residential placement. 20 U.S.C. §§ 1401(16) & 1413(b)(4)(B). Moreover, the court explained that the regulations under the EAHCA explicitly contemplate residential placement. The federal regulations provide:
If placement in a public or private residential program is necessary to provide special education and related services to a handicapped child, the program, including non-medical care and room and board, must be at no cost to the parents of the child.
Comment. This requirement applies to placements which are made by public agencies for educational purposes, and includes placements in State-operated schools for the handicapped, such as a State school for the deaf or blind.
45 C.F.R. § 121a.302 (quoted in Kruelle, 642 F.2d at 692).
The New Jersey Administrative Code provides that each district board of education shall provide a free, appropriate public education program and related services for handicapped pupils in the least restrictive environment. N.J.A.C. 6:28-1.1(d). For some pupils a residential placement may well be the least restrictive. Geis, 774 F.2d at 583. Thus, the least restrictive environment depends upon the particular disability in question. Diamond, 808 F.2d at 992. Hence, the term "least restrictive environment" means the least restrictive environment in which educational progress, rather than educational regression, can take place. Id.
(B) Evidence Before the ALJ
The ALJ has issued two opinions in regard to B.G. Each opinion found the CST's IEP to be inappropriate for B.G.
The initial IEP classified him as P.I. despite unequivocal testimony from Volenski, B.G.'s therapist, that B.G. was an emotionally disturbed child whose emotional problems will tend to interfere with his learning process until he finds a setting that deals with his emotional problem. Volenski voiced his opinion that the least restrictive program for B.G. would be a residential setting. Only through such an all-inclusive program, encompassing his living needs, could B.G. address his emotional and perceptual problems. Dr. Oliver-Smith, a psychiatric consultant, evaluated B.G. and diagnosed him as a multi-handicapped individual; she recommended a residential placement for B.G. Then Dr. Gold, a pediatric neurologist with impeccable credentials, concluded that B.G. could not be managed at home even with weekly psychotherapy. In his opinion B.G. required a residential therapeutic program. Even Dr. Levine, the Board's psychiatric consultant, characterized the reports of Volenski and Oliver-Smith as excellent and was unable to add anything to them from a psychiatric point of view.
When the CST held its initial staffing, the members rejected the outside consultant reports as inconsistent with the behavior the Team members observed in the classroom setting. They felt that the emotional difficulty in the home environment had no impact in the educational setting. Since B.G. had never been disciplined by the principal, the Team concluded that he had no behavioral problem. This shallow analysis ignored negative conduct at both home and school. In each environment B.G. was immature, distrustful, unconfident, disruptive and alienated from the group. From October through April 1986, Sobelson, an experienced teacher, termed B.G.'s personal and social behavior as "very, very poor." Notwithstanding B.G.'s emotional, neurological and visual problems, the CST concluded that a free, appropriate public education program for B.G. in the least restrictive environment was a classification of P.I. with a program implemented in the Team's own school district. The ALJ disagreed and ordered that B.G. be classified as E.D.
Though the E.D. classification was not appealed, the decision of the ALJ was correct. The "emotionally disturbed" category
means the exhibiting of seriously disordered behavior over an extended period of time which adversely affects educational performance and may be characterized by i. or ii. below. An evaluation by a psychiatrist experienced in working with children is required.
i. An inability to build or maintain satisfactory interpersonal relationships;