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BAYONNE BD. OF EDUC. v. R.S.

January 2, 1997

BAYONNE BOARD OF EDUCATION, Plaintiff,
v.
R.S., by his parents K.S. and S.S., Defendant.



The opinion of the court was delivered by: LECHNER

 LECHNER, District Judge

 This is an action by the Bayonne Board of Education (the "Bayonne Board") against defendants R.S. ("R.S."), by his parents K.S. and S.S. On 18 October 1996, the Bayonne Board filed a verified complaint (the "Complaint") seeking review, pursuant to 20 U.S.C. § 1415(e)(2), of the 9 October 1996 decision of Administrative Law Judge Margaret M. Hayden ("ALJ Hayden") (the "ALJ Hayden Decision"). Complaint, P 3. ALJ Hayden held that, pursuant to 20 U.S.C. § 1415(e)(3), and pending litigation over a Due Process Petition filed by R.S., the Bayonne Board was to pay all costs associated with R.S.'s placement at the Alpine School (the "Alpine School"), a private school for pre-school handicapped students in Bergen County, New Jersey. Complaint, P 3; Bayonne Board 12G Statement, P 3. The parties have both moved for summary judgment in the instant action, which they have "agreed ... would dispose of the case." *fn1" Bayonne Board Moving Brief at 1; R.S. Moving Brief at 3 ("There are no facts in dispute for the purpose of adjudicating the ... cross-motions."). For the reasons which follow, the Bayonne Board Motion for Summary Judgment is denied; the R.S. Motion for Summary Judgment is granted.

 Facts

 A. Parties

 The Bayonne Board "is a body corporate and politic responsible for the provision of education to the students enrolled in the public schools of the City of Bayonne." Complaint, P 1. R.S. is a minor child who resides with his parents within the City of Bayonne. Id., P 2.

 B. Background

 R.S. is autistic and has been classified as pre-school handicapped by the Bayonne Child Study Team. Bayonne Board 12G Statement, P 4. During the 1994-1995 school year, R.S. was educated in a pre-school handicapped class in the Bayonne school district (the "Bayonne Program"). Id., P 5. In September of 1995, R.S.'s parents unilaterally placed him at the Alpine School, for the 1995-1996 school year. Id., P 6. In November of 1995, R.S.'s parents filed a Due Process Petition with the New Jersey Division of Special Education (the "Division of Special Education") asking that the Bayonne Board be required to reimburse them for the cost of R.S.'s education at the Alpine School. Id., P 7. The matter was transmitted by the Division of Special Education to the New Jersey Office of Administrative Law, which scheduled hearings in February of 1996. Id.

 1. The Settlement

 On 28 February 1996, after two days of hearings before Administrative Law Judge Arnold Samuels, the parties reached an agreement "which was memorialized as a Stipulation of Settlement" (the "Settlement"). Bayonne Board 12G Statement, P 8. The Settlement provided the Bayonne Board would pay R.S.'s costs at the Alpine School starting on 1 March 1996 and that R.S. would be transferred to the Bayonne Program in September 1996 if certain conditions were met. The Settlement specifically provided:

 
A. The Bayonne Board ... will undertake the placement of R.S. at the Alpine School effective [1 March 1996], and will assume responsibility for transporting R.S. to school effective [4 March 1996].
 
B. R.S. shall attend the Bayonne Autism Program effective, on or about [1 September 1996], subject to the following :
 
1. The parents, the classroom teacher, and other staff involved with the home program will meet bi-weekly between the hours of 2:00 and 3:00 P.M. to review progress and revise the program as needed.
 
2. The parents will receive daily progress reports which will include discrete trial programming scores and other relevant information.
 
3. A doctorate level consultant with an expertise in autism and applied behavioral analysis will be available on an as-needed basis by telephone to staff and to parents. The consultant will attend one of the bi-weekly meetings with the teacher and parent each month to review R.S.'s overall progress and to make suggestions for program modifications as needed.
 
4. The classroom teacher and R.S.'s aides will consult daily about his program.
 
5. All staff who work with R.S., including aides and therapists, will be appropriately trained in the education of children with autism. Training will include the subjects of applied behavioral analysis and discrete trial teaching.
 
7. Instructional methods shall be consistent across instructional settings, including home, school, and on field trips.
 
8. It is also recognized that the parents are supplementing R.S.'s school program at home in order to promote generalization outside of school. The parents will continue to provide this instruction at their expense. Given R.S.'s unique circumstances and the fact that he is transitioning back to Bayonne from Alpine in September of 1996, the district will provide a home program to complement this effort....
 
9. R.S. will be placed in a class only with other children who are preschool handicapped and who are either autistic or PDD....
 
10. The class will have a teacher and at least one aide per child and there will be a floating aide for the program so that discrete trial teaching will be administered to R.S. on a 1:1 basis.
 
11. Class size shall not exceed 5 pupils, including R.S.
 
12. The district will make reasonable efforts to ensure that the physical layout of the Bayonne classroom will be free of distractions and noise to facilitate administration of discrete trial teaching and individual therapy. A separate location for therapy will be provided if necessary to accomplish the foregoing.
 
13. The number and type of individual skill acquisitions problems shall be comparable to those used by R.S. during his final month at the Alpine School. Each program will be taught and charted daily.
 
14. A transition plan will be developed to offset possible regression when R.S. transfers from Alpine to Bayonne. During Bayonne's summer program R.S. will spend one day a week in the Bayonne Program working on a program comparable to that provided at Alpine. In conjunction with the transition plan, items 2, 3, 5, 6, 9, 10, 11, 12 and 13 will be implemented at the start of the transition period, and with regard to item 8, staff will initiate the home program at this time. R.S. will attend the Bayonne class on either Wednesdays or Fridays.

 Complaint, Exhibit A (the "Settlement Agreement").

 2. The Dispute

 The instant dispute involves the implementation of the transition plan (the "Transition Plan"), required by the Settlement. R.S. argues the Bayonne Board "failed to fulfill the terms of the [Settlement]." R.S. Moving Brief at 3.

 During July of 1996, R.S. attended the Bayonne Program on four days, one day per week, as called for in the Settlement. Bayonne Board 12G Statement, P 10. R.S.'s mother attended all four days; R.S.'s father attended one day. Id., P 11. Both the Bayonne Program and the Alpine School were closed for summer recess after the first week in August. Id., P 13.

 On 14 August 1996, R.S.'s parents notified the Bayonne Board they were not satisfied with the execution of the Transition Plan. They specifically asserted "the Transition Plan was never prepared nor implemented. [The] Bayonne staff had nothing prepared for [R.S.] and he attended what amounted to a custodial program. And, when the Alpine staff visited on [31 July 1996] at the request of Bayonne, they were told by the teacher that she was not prepared to meet with them because she had not yet developed a program for [R.S.].... [R.S.'s parents] have not been provided with any of the reports or other information set out in paragraph 2" of the Settlement. ...


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