The opinion of the court was delivered by: PARELL
III. Factual and Procedural History
A. R.H.'s educational history
B. The due process hearing
C. The post-hearing administrative results
D. Proceedings in the district court
IV. Dual Requirements for "Appropriate Education" under IDEA
A. Some meaningful educational benefit
B. Least restrictive educational environment
V. Burden of Proof under Dual Requirements of IDEA
VI. Standard for District Court Review of ALJ Decision
ii. Diagnosis, classification and testing
iii. Residential placement - procedural issue
iv. Residential placement - substantive issue
2. Comparison of likely benefits
4. Physical or emotional conditions
5. Behavior or regression
B. IEP format - procedural issue
C. Bias allegation by school district against ALJ
This case arises under the Individuals with Disabilities Education Act ("IDEA" or "the Act"), 20 U.S.C. §§ 1400-1485, and its implementing statute in New Jersey, N.J. Stat. Ann. §§ 18A:46-1 to :46-46.
The underlying administrative proceeding against the Ocean Township Board of Education ("the school district" or "the district") was commenced on behalf of R.H., a mentally retarded sixteen-year-old girl, by her mother, D.B. ("plaintiff"). Plaintiff claimed that the school district had not fulfilled its statutory obligations to R.H. under IDEA because it declined to place her in a full-time residential facility, and because the format of the proposed Individual Education Program ("IEP") for the 1995-96 school year lacked certain required components. The Administrative Law Judge ("ALJ") ordered residential placement and related relief, and the school district appealed to this Court.
We conclude that the district has met its burden of demonstrating that the current educational placement and program are appropriate, and that residential placement is not necessary in order to provide R.H. with a free appropriate public education under IDEA. We further find that although the proposed written IEP was procedurally deficient in format, the school district took timely action to address that deficiency under the circumstances, and no declaratory relief should be entered by the Court on that issue. We have also considered whether to make an award of attorneys' fees limited to that issue, and have concluded that in the sound exercise of discretion conferred upon the Court under the Act, no such award should be granted.
The IDEA, originally known as the Education of the Handicapped Act,
("EHA") "represents an ambitious federal effort to promote the education of handicapped children." Board of Educ. v. Rowley, 458 U.S. 176, 179, 73 L. Ed. 2d 690, 102 S. Ct. 3034 (1982). The Act was passed in order "to assure that all children with disabilities have available to them . . . a free appropriate public education which emphasizes special education and related services designed to meet their unique needs." 20 U.S.C. § 1400(c).
States receiving federal funding under IDEA are required to comply with federal guidelines and regulations established to assure the availability of a "free appropriate public education" (sometimes referred to as FAPE) for all of their disabled children. Id. § 1412(1). They must develop a plan containing the policies and procedures which insure the provision of that right for all children "regardless of the severity of their handicap." Id. § 1412(2)(C).
The Act also requires participating states to educate handicapped children with nonhandicapped children whenever possible. Id. § 1412(5); Rowley, 458 U.S. at 202-03. This congressional mandate, also embodied in federal and state regulations, is known as the "mainstreaming," "inclusion," or "least restrictive environment" requirement of IDEA. See Oberti v. Board of Educ., 995 F.2d 1204, 1206-07, 1213-15 (3d Cir. 1993). "The use of 'appropriate' in the language of the Act, although by no means definitive, suggests that Congress used the word as much to describe the settings in which handicapped children should be educated as to prescribe the substantive content or supportive services of their education." Rowley, 458 U.S. at 197 n.21.
Special education and related services must be tailored to the unique needs of the handicapped child by means of an individualized education program. Id. § 1401(18). The IEP must be reviewed and revised by the local educational agency at least annually. Id. § 1414(a)(5).
New Jersey participates in the federal funding program established by IDEA. That participation is reflected in state statutes, N.J.S.A. §§ 18A:46-1 to :46-46, and regulations, N.J.A.C. §§ 6:28-1 to -11. See Lascari v. Board of Educ., 116 N.J. 30, 34, 560 A.2d 1180, 1182 (1989). The New Jersey statutory scheme provides for the initial evaluation and classification of a child by a "child-study team," consisting of a school psychologist, a learning disabilities teacher-consultant, and a school social worker. Id. at 35, 560 A.2d at 1183 (citing N.J.A.C. § 6:21-3.1(b)). The child-study team determines whether a child is eligible for special education, then develops, monitors, and evaluates the child's IEP. Id. (citing N.J.A.C. § 6:28-3.1(a)). Parents have the right to be involved in the formation of the IEP, and the team must meet with the parents in developing the IEP for the child. Id. (citing N.J.A.C. § 6:28-3.6(b)).
The Act creates significant procedural safeguards for handicapped children and their parents. Whenever the local agency proposes to change, or refuses to change, the identification or evaluation of a child, or the provision of a free appropriate public education to a child, the child's parents or guardian must be notified and must be given the opportunity to present complaints about any such matter. 20 U.S.C. § 1415(b)(1). Parents dissatisfied with their child's IEP are entitled to an "impartial due process hearing," featuring numerous procedural protections. Id. § 1415(b),(d).
These safeguards are meant to "guarantee parents both an opportunity for meaningful input into all decisions affecting their child's education and the right to seek review of any decisions they think inappropriate." Honig v. Doe, 484 U.S. 305, 311-12, 98 L. Ed. 2d 686, 108 S. Ct. 592 (1988). "Congress repeatedly emphasized throughout the Act the importance of parental participation in both the development of the IEP and any subsequent assessments of its effectiveness. See §§ 1400(c), 1401(19), 1412(7), 1415(b)(1)(A), (C), (D), (E), and 1415(b)(2)." Id. at 311; see also Rowley, 458 U.S. at 208 ("Congress sought to protect individual children by providing for parental involvement in the development of state plans and policies, . . . and in the formulation of the child's individual education program.").
States may choose either a one-tier or a two-tier administrative review system. Some states, including our neighboring state of Pennsylvania, have a two-tier system in which the initial hearing occurs at the local educational agency level followed by an "independent" review at the state administrative appeals level. Carlisle Area Sch. v. Scott P., 62 F.3d 520, 527 (3d Cir. 1995) (citing 20 U.S.C. § 1415(c)), cert. denied, 134 L. Ed. 2d 544, 517 U.S. 1135, 116 S. Ct. 1419 (1996). New Jersey employs the one-tier administrative system, under which due process hearings are conducted before an administrative law judge of the New Jersey Office of Administrative Law. Lascari, 116 N.J. at 39, 560 A.2d at 1185 (citing N.J.S.A. § 6:28-2.7(b)(4)(iv), N.J.A.C. § 6:28-2.7(a)(6)).
Any party aggrieved by the decision at the administrative level has a right to appeal to a state court of competent jurisdiction or to a federal district court. 20 U.S.C. § 1415(c)(2). That court conducts an independent review of the case, but should give "due weight" to the findings of the administrative agency. Rowley, 458 U.S. at 206. The Act was supplemented in 1986 to provide for the recovery of attorneys' fees after a successful challenge by the parents or guardian. 20 U.S.C. § 1415(e)(4)(B).
III. Factual and Procedural History
A. R.H.'s educational history
Her most recent triennial educational re-evaluation, in June, 1995, summarized her functional status as follows:
Current evaluation results indicate that [she] is functioning within the mentally retarded range of intelligence at the trainable level. Significant developmental delays were recorded in cognitive development, gross and fine-motor skills and adaptive behaviors. Language development also represented an area of significant deficit, with receptive language skills falling at a somewhat higher level than expressive language skills. [She] is a highly distractible adolescent, but responds at least momentarily to directions to focus attention to task. Socially, [her] mood is generally positive, she is compliant and docile, and appears to enjoy being with her classmates.
She has physical anomalies associated with trisomy 18 syndrome including short stature, stooped posture, malocclusion of the jaw, and high arched palate. She has had orthopedic surgery for congenital problems with her legs and feet; her ears are located low; "her hands are very crooked (and) all of her bone structure is a little off." (Tr. 9 at 96 (plaintiff's description)). She has an open-mouthed appearance and frequent drooling, which are not considered to be under her control, and the drooling is partially controlled with medication.
A brief description of her current abilities and limitations would include the following. She has poor motor coordination. She can walk and use stairs, but not run or jump. Her fine motor abilities include opening doors and scribbling, but she cannot draw a line or circle or use scissors. Her "receptive language" level permits her to respond to more than fifteen simple verbal directions. She has an oral vocabulary of only a few words, although she does sign some words to communicate, and can sign additional words in response to being shown pictures or objects. She is also able to express messages concerning her likes and dislikes by means of manual gestures and facial expressions, but she is basically nonverbal. She can clear dishes from a table with directions, perform other household chores with assistance, and pour liquid with "considerable spilling." (Ex. J-57 at 3.) "Self care is a struggle for [her]. She is not toilet trained and does not make [her] needs known.
She needs assistance with all areas of self care." (Id.) "She is a social child. She enjoys greeting familiar others and attempts to assist others involved in simple tasks." (Ex. J-55 at 2.) She rarely displays temper. She cooperates with adult requests and is not disruptive. Her general development is summarized as being at the eighteen-month level.
R.H. began school when she was approximately three and one-half years old, at the Ocean Township preschool handicapped program during the 1984-85 school year. Speech therapy was provided to her when she entered school. Prior to that, from birth, R.H. had received special services for her disabilities from an assigned agency, including physical therapy at home and at the agency facility. During the 1985-86 school year, R.H. was placed by Ocean Township School District at the Aldrich School in Howell Township, in a self-contained TMR class. The child remained in that placement until in or about 1988. At that time, plaintiff moved to Toms River, New Jersey. R.H. attended a self-contained class in the Toms River School District for less than a year, and then plaintiff moved with R.H. to Richmond, Virginia in April, 1989. There, R.H.'s educational placement was in a self-contained TMR class in the Virginia Randolph Special Education Center, a self-contained school for disabled children. R.H. continued in that placement during the school years from 1989 until January, 1995, when plaintiff returned to reside in Ocean Township.
When they were living in Virginia, R.H. attended a church-based after school and weekend respite program for which plaintiff paid on a sliding scale based on need. The same private day care program was run as a summer day camp, which R.H. attended in the summers of 1990 through 1992. The school district IEP did not provide R.H. with an extended day or summer program in Virginia. The district made plaintiff aware of the church-sponsored programs, and plaintiff enrolled R.H. on her own. During the summers of 1993 and 1994, plaintiff was in the child care business at her home, and she kept R.H. at home with her except for a two-week attendance at a sleep-away camp in 1994, at plaintiff's expense.
The Virginia Randolph School provided a comprehensive program at the trainably mentally retarded level that addressed R.H.'s individual educational needs in the general areas of gross and fine motor skills, communication, self-help and social skills, and vocational skills. Related services in her IEPs for those years included, at various times, speech therapy and physical therapy. Plaintiff consistently expressed satisfaction with R.H.'s educational program while they were in Virginia, and at no time did she request that the IEP include any additional services or parent training. Plaintiff also did not request residential placement for R.H. during any of those years until the spring of 1994. Plaintiff testified that during that spring, she brought up the subject in conversation with R.H.'s teacher, but made no formal request.
Plaintiff moved to Ocean Township from Virginia in January, 1995 and contacted the school district to enroll R.H. The child-study team for the district was Mr. Briard (social worker), who served as case manager for R.H., Ms. Venino (school psychologist), and Ms. Beirne (learning consultant). They were supplied with R.H.'s extensive records which they reviewed, and met with plaintiff and R.H. on January 10, 1995. They conferred with plaintiff, observed R.H., and after considering several possible placements, they proposed to plaintiff that R.H. be placed in the TMR class headed by Ms. O'Keefe, located within the district at the Ocean Township Intermediate School. This class provided a program that was consistent with the program R.H. had been receiving in her TMR class in the Virginia school. Plaintiff met the child-study team and Ms. O'Keefe, toured the school and briefly visited the class that day. The district and plaintiff agreed at that time that R.H. would enter that class and be monitored to see whether it was appropriate.
Plaintiff indicated at that initial meeting that she was very anxious to have R.H. start in the program immediately. The child-study team was able to accommodate her so that R.H. entered Ms. O'Keefe's class the very next day, January 11, 1995. At the same time, the team and Ms. O'Keefe advised plaintiff that while R.H. was being placed at least initially in that class, "we certainly would look at a continuum of alternate placements, which we have." Also at that meeting plaintiff was informed that the previous IEP would be considered while the district was working with R.H., and during that initial period an IEP would be developed and presented.
Plaintiff did not request residential placement for R.H. during the initial meeting on January 10, 1995. She did indicate to Ms. O'Keefe and Mr. Briard at that meeting that she was interested in a residential placement, and had been looking into that in Virginia before she moved, but had not been able to accomplish it there. However, during that meeting and the ensuing three months, plaintiff made no requests for different or additional educational services relating to her daughter except a bus aide, nor voiced any objections to the program that R.H. was receiving at her school. She did not attend the meeting for the development of the interim IEP, (Ex. J-44), despite the school's efforts to include her in the process. She also did not sign that document, which was adopted as a working outline by the district on or about April 3, 1995. At the hearing plaintiff testified that in March or early April, 1995, she had retained counsel. On April 19, 1995, counsel directed a letter to the district requesting residential placement for R.H.
The child-study team conducted a full triennial evaluation of R.H.'s current educational status in May and early June, 1995, as part of the process of drafting her proposed IEP for the 1995-96 school year. Evaluation reports were prepared by each of the child-study team members and by R.H.'s speech therapy teacher. Ms. O'Keefe also provided data from her experience as R.H.'s primary teacher. Plaintiff participated in the evaluation process in interviews with the school psychologist, Ms. Venino, and the school social worker, Mr. Briard.
Mr. Briard testified that in the course of his meeting with plaintiff to prepare for the social assessment portion of the evaluation in early June, 1995, he brought up the subjects of after school and respite care in order to help her as a parent to be aware of resources that might be available in the community.
Mr. Briard determined that plaintiff had taken the initiative to register R.H. with the Division of Developmental Disabilities ("DDD") for respite care. He also discussed with plaintiff the fact that the Association for Retarded Citizens ("ARC") had a location nearby with various programs and services that might be of interest to her. He also asked whether plaintiff had any plans for R.H. for the summer, and when plaintiff inquired whether the school district would provide a summer program for R.H., he said that he would look into the question and respond at the upcoming IEP meeting. Plaintiff made no formal request for an extended summer program at any time.
The district presented and explained its evaluation reports and proposed IEP for the 1995-96 school year to plaintiff at the formal IEP meeting conducted on June 16, 1995. There is no indication that plaintiff was accompanied by her counsel at that meeting, although the notice letter from the district invited plaintiff to bring anyone she wished to bring. Based upon the district's evaluation, the IEP proposed at that time set forth essentially the same program identified in the interim IEP adopted in April, with the addition of transitional planning for R.H., as required by federal and state regulations. 34 C.F.R. § 300.346(b); N.J.A.C. § 6:28-3.6(d)(5). That proposed IEP specified the current TMR class program, with speech therapy and van transportation as related services. (Ex. J-48.) It did not include an extended summer program. Mr. Briard testified that at the time of that meeting that it was the judgment of the district, based upon all currently available information, that the proposed IEP for 1995-96 was appropriate for R.H. Plaintiff later enrolled R.H. for two two-week sessions at Camp Mary Heart during the summer of 1995, and obtained a grant from DDD covering the full expense.
Subsequent to the IEP meeting of June 16, 1995, plaintiff requested mediation within the New Jersey Department of Education as permitted by N.J.A.C. § 6:28-2.6. A mediation conference was conducted on July 26, 1995 by due process mediator Thomas Frost, which was attended by the parties and their counsel. Two issues were raised on behalf of plaintiff at the mediation session: (1) her request for residential placement, and (2) her objection to the fact that the IEP as proposed did not include an extended summer program. On the latter issue, the district again explained, as it had at the June IEP meeting, that it did have such a program available and had considered it for R.H. in the current summer. The district said, however, that an extended summer program would be indicated in cases where significant regression over the two summer months was likely to occur. In R.H.'s case, because she had not had an extended summer program in her IEPs in Virginia and this would be R.H.'s first summer in their district, the district explained that it could better evaluate that question when she returned to school in the fall, which it would do. The mediator then suggested that when the district did make its evaluation on that question based on observations in the fall, it should document those observations.
On the issue of residential placement, the district relied upon its previously stated position that based upon the information presently available, in its view the current educational placement was appropriate for R.H. From the record before this Court, it appears that residential placement and the summer program were the only two issues raised by plaintiff at the mediation conference, and that the parties reached no agreement.
By letter from counsel dated August 2, 1995, plaintiff withdrew from mediation and presented her complaint for a due process hearing before the Office of Administrative Law, pursuant to 20 U.S.C. § 1415(b) and N.J.A.C. § 6:28-2.7. The matter was assigned to the designated Administrative Law Judge, and the hearing commenced on October 12, 1995.
B. The due process hearing
The hearing proceedings took what can accurately be described as a bizarre and tortured path. Initially the district, as the party bearing the burden of proof, presented its employee witnesses, beginning with R.H.'s teacher, Ms. O'Keefe, continuing with the three members of the child-study team, and concluding with Joseph Petillo, the Coordinator of Special Services for the district. On the fifth day of the hearing, the testimony of the first four witnesses had been concluded and Mr. Petillo was testifying on cross-examination. The ALJ at that point initiated a sidebar conference which was off the record, and when the record was resumed the ALJ made a statement that he had called the sidebar "because of a timely need to review where we were going with the direction of the case up to this point;" that he had "addressed some of [his] own concerns to the parties;" that he had "instructed counsel however that there are ways that this matter can be approached that maybe can perhaps address a significant amount of concerns raised by the mother in this matter;" and that he was inviting the parties to adjourn the hearing, "my purpose, of course, is to give you all the opportunity to embrace what I addressed to both counsel in that sidebar, if nothing else."
As events developed, that break in the hearing began on October 27, 1995, and the parties and the ALJ were engaged in off-the-record settlement efforts until the hearing resumed on February 5, 1996. No settlement had been reached, and the case had been rendered vastly more convoluted by the off-the-record events. Those events featured as major distractions in the subsequent testimony and the ALJ decision.
What occurred during the hiatus before the settlement efforts were exhausted and the hearing resumed was largely off the record, but certain events from that period later became of record because of the further disputes which those events produced. The "concerns" which the ALJ had communicated to counsel at sidebar, to which he made reference in the text quoted above, were not otherwise spelled out by him on the record. However, during the settlement discussions which followed (involving the ALJ and both counsel) it appears of record that "[counsel for plaintiff] demanded and [the ALJ] agreed that it would be of assistance to have a specialist in IEP development retained[,] "such person to have a "background in applied behavior analysis," and that "the name Dr. Howard Margolis which theretofore had been unknown to [counsel for the district] was thrown out as somebody who would be good."
Next, through a series of contacts involving members of the child-study team and counsel for plaintiff, the services of Dr. Margolis were retained pursuant to letters from each side which, later in retrospect, revealed different views of the scope of his retention. The undisputed basis of his retention, however, was that he was to be jointly consulted by the parties, paid by the district, and that: "You will not testify for the district, nor the parent. You are not an advocate for the district, nor the parent, but an advocate for the child." (Ex. R-26.) Dr. Margolis was not designated by the ALJ as a court-appointed expert as permitted under the regulations. See N.J.A.C. § 6:28-2.5. Rather, he was retained by the parties under the stated arrangement.
Dr. Margolis had met with the child-study team and briefly discussed the case on the first day that he was involved in it. After being formally retained he proceeded to review all of R.H.'s educational records, observed R.H. in the classroom and conferred with Ms. O'Keefe and the classroom aide, and observed R.H. in the home setting and interviewed her mother and grandmother. A letter was sent by Dr. Margolis to Mr. Petillo and counsel for plaintiff dated December 23, 1995, which stated, "enclosed is the 8th draft of my recommended IEP which I reviewed in part (draft 7) with Mrs. B. Your comments would be appreciated." The enclosure was a "suggested IEP for R.H." Dr. Margolis had discussed one earlier draft with the parent, and made some revisions. He had not shown that draft or any previous drafts to the district. After delivering the "eighth draft," he conferred by telephone with Mr. Briard and went over some of the goals and objectives and orally agreed to delete certain items, but he produced no further drafts of his proposed IEP. The district indicated at that time that it had no major problems with the formulation of goals and objectives in the draft IEP prepared by Dr. Margolis, which it viewed as a more detailed description of some portions of the program which it was already providing to R.H. However, both the district and Dr. Margolis viewed it as only a draft to be used in further discussions between the parties leading to development of a revised IEP to meet plaintiff's contentions regarding measurable goals and objectives and evaluation criteria. See Section VII(B).
The parties were scheduled to meet with Dr. Margolis on January 12, 1996. The prior day he faxed to both sides a one-page document which he had written, entitled "Implementation Points for Proposed Program for R.H.--Minimal Needs." The accompanying cover sheet referred to the possibility of inclement weather and stated, "to expedite matters, in case I cannot physically make tomorrow morning's meeting, I have listed some implementation particulars for discussion. . . . Hope this helps." The "implementation plan," as it came to be referred to in the later testimony, included specifications as follows:
. A program scheduled for 365 days a year, an average of 6 or so hours each day (e.g., 1.5 hours in the morning, before school; 4.5 hours in the afternoon and evening).
. Instructor . . . needs masters level skills in special education instruction and applied behavior analysis. To reduce costs and provide for instruction over a 7-day a week, 52-weeks a year, the instructor should be complemented by a well-trained (in applied behavior analysis) bachelor's level teaching assistant, who is supervised by the instructor. . . . .
. Instructor . . . should work with R.H. at least weekly[,] . . . observe the teaching assistant work with R.H., instruct Mrs. B. and R.H.'s grandmother, and attend weekly meeting to make instructional decisions. . . .
. Frequent and planned use of the community, to teach R.H. about the community and meet her community-based goals and objectives.
. Frequent and planned social activities outside of the home, to help R.H. meet her social (and related) goals and objectives.
No plan such as this had ever been proposed by Dr. Margolis in all of his approximately thirty years of experience in his career. It was unprecedented in the experience of the district in working with handicapped students. It was predictably unworkable, as both Dr. Margolis and plaintiff observed when they later testified. It was the functional equivalent of residential placement, as plaintiff and her own expert Dr. Gallina indicated in their testimony. Yet Dr. Margolis rendered no expert report at all, nor did his later testimony, under plaintiff's subpoena at the resumed hearing, go so far as to recommend residential placement. Instead, he opined during his hearing testimony that if his plan did not succeed, which he predicted it would not, then that failure would be a "very strong indicator [for] residential placement in a high quality residential facility . . . ."
The parties met with each other and with the ALJ at the hearing location on January 23, 1996 for several hours of negotiations concerning the suggested implementation plan. Two days later, on January 25, after more hours of settlement discussions, some with Dr. Margolis and some with the ALJ, the negotiations were concluded without resolution. There ensued six more days of testimonial hearings and an additional day devoted to closing arguments.
Dr. Margolis testified as one of the hearing witnesses, under subpoena by plaintiff.
During the cross-examination of Dr. Margolis by counsel for the district, he acknowledged that he was well acquainted with the attorneys for plaintiff; that he had been retained as an expert on behalf of parents in educational disputes in more than 100 cases (and never for a school district when he accepted the R.H. assignment); and that he had worked in such capacity for the law firm representing plaintiff. He also testified that the ALJ in this case knew of his working relationships with that firm, and the fact was no secret. He asserted that he had made it very clear to the district, at the time he was retained in this matter, that he had worked with that firm previously. Dr. Margolis declared that he had been independent in the work that he undertook in this case.
The district vigorously disputed Dr. Margolis' claim of independence, based upon the nature of the services that he had rendered and also its perception that he had not been forthright in informing it of his connections to the Sussan firm. The district recalled the child-study team and Mr. Petillo to testify to their conflicting recollections as to whether Dr. Margolis had disclosed to them his prior working relationship with the firm representing plaintiff. It is not necessary for us to resolve that issue here. However, we note that by his own testimony, Dr. Margolis did have an extensive and virtually exclusive background of providing expert services on behalf of parents in these disputes.
We have been obliged to provide a description of the circumstances surrounding the settlement negotiations and participation of Dr. Margolis in the case because those events heavily influenced the entire remaining course of the administrative proceedings. After that hiatus in the hearing, much of the testimony of the other witnesses focused upon Dr. Margolis and his suggested implementation plan.
When the ALJ decision ("ALJ Op.") was rendered, it also largely concentrated upon Dr. Margolis and his relationship to the case. See Section III(C). This was not surprising, given the fact that the ALJ played a dominant role in procuring both the initial participation of Dr. Margolis as a consultant and his eventual appearance as a witness. However, this emphasis was misplaced because it tended to divert attention from the historical facts about R.H., none of which were in dispute. It also obscured the need to deal with the information and opposing inferences and opinions offered by all of the other witnesses, who were called in the usual and customary course of litigating the issues in a case of this type.
The Administrative Law Judge rendered a decision granting the following relief:
Based upon all the foregoing, it is ORDERED that (1) R.H. shall, subject to its approval and acceptance, be placed at the Bancroft School, Haddonfield, New Jersey immediately and she shall remain there so long as it is educationally appropriate and (2) the Ocean Township School District shall immediately create and implement an appropriate individualized education program for R.H. which shall accurately and adequately reflect all of her defined needs and pursuant to the requirements set forth in N.J.A.C. § 6:28-3.6 including but not limited to the specified goals and objectives created on behalf of the parties by Dr. Howard Margolis and (3) R.H.'s program and placement at the Bancroft School shall include a related service of an extended school year in accordance with the current programming and schedule of the Bancroft School and (4) D.B. shall be provided with a related service of parental training henceforth in order to assist her in coping with and providing consistency for R.H.; and (5) all costs attendant to R.H.'s matriculation at the Bancroft School shall be borne by respondent Ocean, and shall also include all reasonable transportation costs incurred by D.B. in transporting her daughter back and forth from Bancroft as well as the cost of one visitation per month by D.B. with R.H. at the Bancroft School; and (6) in light of my conclusion relative to the services of R.H.'s attorney, it is RECOMMENDED that an ORDER be granted for attorneys' fees and costs incurred with this action.
The decision was eighty-two pages in length, excluding witness and exhibit lists. The bulk of the decision consisted of summaries of the testimony of each witness.
The discussion section of the decision, entitled "Legal Analysis," consisted of an apparently emotional discourse, largely devoid of analysis, in which the ALJ criticized the district and its witnesses and passionately extolled Dr. Margolis.
The ALJ focused his discussion on only two of the witnesses in deciding the issue of residential placement in favor of plaintiff. First, he dismissed the testimony of Dr. Pietrucha, the district's expert child neurologist, characterizing her testimony as bleak, harsh, and suspect. In contrast, the ALJ lavishly praised and defended Dr. Margolis, and then expressly likened Margolis to himself in terms of their role in the case, stating:
Specifically I would hope that Dr. Margolis shall not become jaded by his involvement in this matter so as to preclude him from appropriately participating in further matters on a professional basis in the future. As indicated earlier on, it is unfortunate that Dr. Margolis has been unfairly drawn into this matter because of the uncalled-for attacks made upon him and his professional integrity during the course of this matter. I trust that he will appreciate the concern with which I view such unfounded attacks and that he shall stand even taller and more resolute on behalf of children with special needs. For, in reality, Dr. Margolis does not represent parents and Dr. Margolis does not represent school districts. Dr. Margolis represents children.
And that is akin to the mission of this tribunal i.e., to ensure that children receive a free and appropriate public education in the least restrictive environment. That of course is the requirement of each district board of education under N.J.A.C. § 6:28-2.1(a). And, where a district fails to meet that obligation, then it is incumbent upon this tribunal to demand that steps be taken to appropriately address concerns raised on behalf of those affected children.
That portion of the ALJ opinion also gives the strong impression that while verbally espousing the proper standard of educational benefit under Rowley, the ALJ actually employed the rejected "best achieve success-in-learning" standard, or even the wholly inapposite "best interests of the child" approach. Those inapplicable standards are discussed in note 36.
Following the issuance of the ALJ decision, a series of correspondence was exchanged among counsel for plaintiff, counsel for the district, and personnel of the New Jersey Department of Education. In that exchange, counsel for plaintiff sought the assistance of the Department to compel the district to implement the ALJ decision by transferring R.H. to residential placement immediately. The district responded that the matter was on appeal, and cited the stay-put provision of IDEA and related state and federal regulations in support of its position that the current educational placement of the student was not changed by the ALJ decision.
According to the certification of counsel for the district, following that exchange of correspondence she was advised by Department of Education personnel that "no enforcement proceedings would take place as the Department did not think that such was appropriate under the law cited," and also "that there was an Attorney General's opinion on a matter similar to this which went back many years. This opinion also apparently confirmed that the provisions cited in [counsel's] letter would mandate that R.H. 'stay put'." The result of that exchange was that the Department of Education took no steps to compel the district to implement a placement change for R.H. while the district appealed the decision of the Office of Administrative Law.
D. Proceedings in the district court
Plaintiff filed her action in this Court on May 8, 1996, seeking an award of attorneys' fees and costs as the prevailing party below. See 20 U.S.C. § 1415(e)(4)(B). The school district filed its appeal of the administrative decision in the New Jersey Superior Court, Chancery Division, which action was removed to this Court by plaintiff, and the two actions were consolidated by consent.
Plaintiff initially moved for preliminary injunctive relief directing the school district to implement immediately the decision of the Administrative Law Judge. Following briefing and oral argument directed to that limited issue, we denied the motion in an unpublished written Memorandum and Order filed July 2, 1996. In that opinion, we found that R.H.'s current educational placement was the pendent placement under the "stay-put" provision of IDEA, 20 U.S.C. § 1415(e)(3), and that no injunctive relief should be issued by the Court to change that placement while the appeal was pending here. Plaintiff did not appeal from that denial of injunctive relief. See 28 U.S.C. § 1292(a)(1).
The parties next filed cross-motions for affirmance and reversal, respectively, of the decision of the ALJ. At oral argument on the cross-motions for judgment in this Court, each party agreed that the matter was ripe for review, and neither party requested the Court to take additional evidence. See 20 U.S.C. § 1415(e)(2) ("The court shall receive the records of the administrative proceedings, [and] shall hear additional evidence at the request of a party. . . ."). Also at oral argument on the motions for judgment, on October 21, 1996, counsel for plaintiff requested that we reconsider the denial of preliminary relief in view of the decision of our court of appeals issued September 18, 1996, in Susquenita School District v. Raelee S., 96 F.3d 78 (3d Cir. 1996). We advised that we did not believe that case to be controlling under the facts presented here.
IV. Dual Requirements for "Appropriate Education" under IDEA
Courts interpreting IDEA have recognized that the statutory framework imposes dual requirements on states and their school districts. See, e.g., Scott P., 62 F.3d at 533-34. First, they must "provide personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." Rowley, 458 U.S. at 203. Second, and equally important, they must "construct a program in the least restrictive educational environment appropriate to the needs of the child." Scott P., 62 F.3d at 534 (citing 20 U.S.C. § 1412(5)(b)); see also Rowley, 458 U.S. at 202 ("The Act requires participating states to educate handicapped children with nonhandicapped children whenever possible.").
Courts have also observed the inherent "tension within the Act between the strong preference for mainstreaming . . . and the requirement that schools provide individualized programs tailored to the specific needs of each disabled child." Oberti, 995 F.2d at 1214 (citations omitted). However, both policies are clearly and strongly reflected in the Act as written. See Rowley, 458 U.S. at 189 ("The face of the statute evinces a congressional intent to bring previously excluded handicapped children into the public education systems of the States and to require the States to adopt procedures which would result in individualized consideration of and instruction for each child."). Accordingly, public school officials are admonished to "devise means to reconcile these conflicting but compelling interests." Scott P., 62 F.3d at 536 n.7.
In this section we examine these dual statutory requirements, particularly as they have been interpreted to apply in the education of severely and profoundly impaired children. Also in this section and the following section, we note the interplay between the various procedural and substantive rights and obligations embodied in the Act.
A. Requirement of some meaningful educational benefit
The Court drew upon the express language of the Act and its legislative history in searching for the substantive standard of benefit required for a "free appropriate public education." Reading the language of the statute, the Court made these observations:
According to the definitions contained in the Act, a "free appropriate public education" consists of educational instruction 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. Almost as a checklist for adequacy under the Act, the definition also requires that such instruction and services be provided at public expense and under public supervision, meet the State's educational standards, approximate the grade levels used in the State's regular education, and comport with the child's IEP. Thus, if personalized instruction is being provided with sufficient supportive services to permit the child to benefit from the instruction, and the other items on the definitional checklist are satisfied, the child is receiving a "free appropriate public education" as defined by the Act.16
Id. at 188-89 (emphasis added).
The express language of the Act, however, was seen to provide no substantive standard by its own terms. "Noticeably absent from the language of the statute is any substantive standard prescribing the level of education to be accorded handicapped children." Id. at 189.
The legislative history of the Act, which the Court also carefully considered, prompted the following conclusions:
By passing the Act, Congress sought primarily to make public education available to handicapped children. But in seeking to provide such access to public education, Congress did not impose upon the States any greater substantive educational standard than would be necessary to make such access meaningful. Indeed, Congress expressly "recognized that in many instances the process of providing special education and related services to handicapped children is not guaranteed to produce any particular outcome." . . . Thus, the intent of the Act was more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside.
The Supreme Court's conclusion on this issue in Rowley was expressed in terms of "some educational benefit":
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. It would do little good for Congress to spend millions of dollars in providing access to a public education only to have the handicapped child receive no benefit from that education. . . . We therefore conclude that the "basic floor of opportunity" provided by the Act consists of access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child.17
Despite its frequent mention, we cannot conclude . . . that self-sufficiency was itself the substantive standard which Congress imposed upon the States. Because many mildly handicapped children will achieve self-sufficiency without state assistance while personal independence for the severely handicapped may be an unreachable goal, "self-sufficiency" as a substantive standard is at once an inadequate protection and an overly demanding requirement. We thus view these references in the legislative history as evidence of Congress' intention that the services provided handicapped children be educationally beneficial, whatever the nature or severity of their handicap.
Rowley also addressed the role of the courts in providing the judicial review granted by the Act under 20 U.S.C. § 1415(2). See Section VI. During that discussion, the Court stressed the importance of the extensive procedural safeguards provided to parents and guardians under the Act as a means of promoting the substantive goals of the legislative scheme. Rowley, 458 U.S. at 205-06.
The Third Circuit, in its decisions both before and after Rowley, has pointed out that the statutory requirement of educational benefit has both procedural and substantive aspects. See, e.g., Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171 (3d Cir. 1988) (discussing plaintiff's procedural and substantive claims under IDEA), cert. denied, 488 U.S. 1030, 109 S. Ct. 838, 102 L. Ed. 2d 970 (1989). The Polk decision is also noteworthy for purposes of the present analysis because it arose in the context of a severely mentally and physically handicapped child, unlike the situation in Rowley.
Christopher Polk, age fourteen, had the functional and mental capacity of a toddler due to having contracted encephalopathy, a disease of the brain similar to cerebral palsy, during infancy. He could sit and kneel, was learning to stand independently, and was showing "some potential for ambulation." Id. at 173. His education "consisted of learning basic life skills such as feeding himself, dressing himself, and using the toilet. He was cooperative, but found such learning difficult because of his short attention span. All parties agreed that he required "special services" in order to learn. Placed in a class for the mentally handicapped in his own school district, he was also assigned a full-time classroom aide. Previously he had also received direct physical therapy as part of his education program, but this had been replaced by a "consultative model" in which a physical therapist came once a month to train his teacher in how to integrate physical therapy with his education. His parents did not object to the consultative model itself, but argued that his individual needs also required direct, hands-on physical therapy.
Id. at 173-74. The court of appeals reversed summary judgment in favor of the school district, holding that there were factual issues under both the procedural and substantive aspects of the educational benefit inquiry. In so holding, the court articulated the relevant tests to be applied.
The decision in Polk first addressed plaintiffs' argument that the school district violated the procedural requirements of the Act. More specifically, the parents contended that the district in fact had an inflexible rule that it applied to all students, offering only consultative therapy and prohibiting direct physical therapy. The district contended that they had no such rigid policy. Without deciding the factual issue (which was for the district court), the court of appeals held that in its view, " a rigid rule under which defendants refuse even to consider providing [the specified service] . . . would conflict with [the child's] procedural right to an individualized program." Id. at 177.
The court's rationale for this holding was based primarily upon Rowley 's emphasis on parental participation in the formulation of the IEP as being one of the essential procedural protections under the Act. Thus, according to the court in Polk, "this system of procedural protection only works if the state devises an individualized program and is willing to address the handicapped child's 'unique needs.'" Id. (citing 20 U.S.C. § 1401(16); Rowley, 458 U.S. at 208). Other significant support for this holding was found in decisions including Battle v. Pennsylvania, 629 F.2d 269 (3d Cir. 1980), cert. denied, 452 U.S. 968, 101 S. Ct. 3123, 69 L. Ed. 2d 981 (1981), in which Pennsylvania's inflexible policy of limiting special education to 180 days per year had been held to violate the Act because such an across-the-board policy conflicted "with the Act's emphasis on the individual." Id. at 280.
Turning then to the substantive issue of whether the child's education was adequate to meet his unique needs, the court in Polk noted that the Supreme Court had not been forced in Rowley to confront "the question of how much benefit is sufficient to be 'meaningful,'" because the deaf Amy Rowley had nevertheless been receiving quite substantial benefit from her education. In the case of a severely handicapped individual such as presented in Polk, however, the court found that substantive issue "inescapable." Polk, 853 F.2d at 180.
Simply put, the court in Polk announced that as a substantive educational standard, " we hold that the [Act] calls for more than a trivial educational benefit." Id. The Court explained, "put differently, and using Rowley 's own terminology, we hold that Congress intended to afford children with special needs an education that would confer meaningful benefit."
Id. at 184. That holding was based upon the court's reading of Rowley (which it found partially distinguishable on the facts), its own analysis of the statutory language and legislative history, as well as precedent in the Third Circuit and other courts addressing these issues as relating to the severely handicapped. The court particularly relied upon the decisions in Battle and Board of Education v. Diamond, 808 F.2d 987, 991 (3d Cir. 1986) ("Rowley makes it perfectly clear that the Act requires a plan of instruction under which educational progress is likely.").
The facts found by the district court and relied upon by the circuit court in Battle included the following description:
The Severely and Profoundly Impaired (SPI) are generally regarded as children whose I.Q. is below 30. The severely retarded are likely to be physically handicapped and have difficulty moving. They may enter the school system without toilet training and lack many basic self-help skills, such as dressing and feeding. Their language deficit is usually significant. Academically, one expects their achievements to be very limited, although they may be able to count, tell time and identify a few words on sight at the completion of their education. . . . . The profoundly retarded are the next and lowest subgroup . . . unlikely to possess any vocabulary or to be ambulatory. Communication is typically limited to gesturing. . . . SPI children tend to learn much more slowly than nonhandicapped children and tend much more quickly to forget what they have learned. Additionally, SPI children tend to have great difficulty generalizing skills they have learned from one environment to another.
The educational programs of SPI and SED children depend on the individual abilities of each child. Where basic self help and social skills such as toilet training, dressing, feeding, and communications are lacking, formal education begins at that point. If the child masters these fundamentals, the education moves on to more difficult but still very basic language, social, and arithmetic skills, such as counting, making change, and identifying simple words.
The modest objectives of the educational programs of SPI and SED children are related to each child's potential and typically include acquiring additional self help skills, avoiding institutionalization or attaining that level of independence with regard to self care that he or she can live in a community living arrangement or at home and work in a sheltered workshop.
Id. at 274-75 (quotations and citations omitted).
This quoted language from Battle, although originally appearing as findings of fact in that case, has found its way into subsequent decisions as a generally accurate description of the educational process for severely and profoundly handicapped students. See, e.g., Polk, 853 F.2d at 176 (citing Battle); Kruelle v. New Castle Cty. Sch. Dist., 642 F.2d 687, 693 (3d Cir. 1981) (same).
The Battle decision was the first case in the Third Circuit to address the challenges of providing educational services under the Act to severely and profoundly handicapped students. In it, the court of appeals highlighted the great difficulty faced by courts in setting or enforcing substantive educational standards in those circumstances:
The Act probably anticipates that, where possible, educational objectives should be set with reference to those objectives established for the nonhandicapped. . . . However, even where educational objectives may be established with reference to those objectives set for the nonhandicapped, the determination of appropriate educational programming required by the statute raises extremely difficult problems both in selecting the standard for comparison and in making the appropriate comparison. . . . Where, as in this case, the handicap in question profoundly affects the child's learning ability, this comparison reaches a level of difficulty, which, in the absence of legislative guidance, approaches the perimeter of judicial competence.
Battle, 629 F.2d at 277 (citations omitted). Thus, as to such substantive standards, the court in Battle concluded "that the Act contemplates that the determination of appropriate educational goals, as well as the method of best achieving those goals, are matters which are to be established in the first instance by the states." Id. at 278.
This view was confirmed by the Supreme Court in Rowley, which cautioned that "in assuring that the requirements of the Act have been met, courts must be careful to avoid imposing their view of preferable educational methods upon the states. The primary responsibility for formulating the education to be accorded a handicapped child, and for choosing the educational method most suitable to the child's needs, was left by the Act to state and local educational agencies in cooperation with the parents or guardian of the child." Rowley, 458 U.S. at 207 (footnote omitted).
By the same token, however, our court of appeals stated, with reference to the "meaningful educational benefit" test announced in Polk, "we do not read the Supreme Court's salutary warnings against interference with educational methodology as an invitation to abdicate our obligation to enforce the statutory provisions that ensure a free and appropriate education to [each handicapped child]." Polk, 853 F.2d at 184. In establishing that substantive test, the court in Polk acknowledged, "we recognize the difficulty of measuring levels of benefit in severely handicapped children. Obviously, the question whether benefit is de minimis must be gauged in relation to the child's potential." Id. at 185.
B. Requirement of least restrictive educational environment
The duty of the courts to observe the requirements of IDEA extends also to recognizing the "strong preference for mainstreaming" embodied in the Act. Oberti, 995 F.2d at 1214. Thus, "an IEP must not only be designed to confer some educational benefit, but it also must deliver the programming in the least restrictive educational environment." Scott P., 62 F.3d at 535). The Act's preference for mainstreaming "rises to the level of a rebuttable presumption." Board of Educ. v. Holland, 786 F. Supp. 874, 878 (E.D. Cal. 1992), aff'd, 14 F.3d 1398 (9th Cir.), cert. denied, 512 U.S. 1207, 129 L. Ed. 2d 813, 114 S. Ct. 2679 (1994); see also Oberti, 995 F.2d at 1214 ("IDEA's presumption in favor of mainstreaming").
Section 1412(5)(B) of IDEA provides that states must establish:
procedures to assure that, to the maximum extent appropriate, children with disabilities . . . are educated with children who are not disabled, and that special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature and severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. . . ."
20 U.S.C. § 1412(5)(B). The federal and state regulations similarly mandate that handicapped students be educated in the "least restrictive environment," see 34 C.F.R. §§ 300.550 to 300.556; N.J.A.C. § 6:28-2.10, and "as close as possible to the child's home." 34 C.F.R. § 300.552(a)(3) & (c); N.J.A.C. § 6:28-2.10(a)(5).
Courts in this and other circuits have recognized the tension that these dual requirements impose on school districts, as well as the courts' duty to "'be careful to avoid imposing their view of preferable educational methods upon the States.'" See, e.g., Oberti, 995 F.2d at 1214 (quoting Rowley, 458 U.S. at 207). They have sought to accommodate those concerns in providing standards for how the mainstreaming requirement of the Act is to be satisfied in particular cases.
The first step in the Oberti mainstreaming test is to determine "'whether education in the regular classroom, with the use of supplementary aids and services, can be achieved satisfactorily.'" 995 F.2d at 1215 (quoting Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1048 (5th Cir. 1989)). " Second, if the court finds that placement outside of a regular classroom is necessary for the child to benefit educationally, then the court must decide '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. (quoting Daniel R.R., 874 F.2d at 1048).
The Oberti court identified several factors to be considered in applying the first part of the mainstreaming test that it embraced. Although those factors were not explicitly applied to the second part of the test, logic would dictate that they be considered by analogy in evaluating whether a child who cannot be educated satisfactorily in a regular classroom is nevertheless receiving mainstreaming to the maximum extent appropriate. In other words, if a regular classroom is not a feasible placement for a child in light of the nature and severity of that child's handicapping conditions, then presumably these same factors should be considered, insofar as applicable, in evaluating any more restrictive points on the continuum of possible placements.
The first of the factors to be considered by a court in determining whether a child can be educated satisfactorily in a regular classroom with supplementary aids and services is to:
look at the steps that the school has taken to try to include the child in a regular classroom . . . If the school has given no serious consideration to including the child in a regular class with such supplementary aids and services and to modifying the regular curriculum to accommodate the child, then it has most likely violated the Act's mainstreaming directive. 'The Act does not permit states to make mere token gestures to accommodate handicapped students; its requirement for modifying and supplementing regular education is broad.'"
A second factor in this inquiry is the comparison between the educational benefits the child will receive in a regular classroom (with supplementary aids and services) and the benefits the child will receive in the segregated setting. Id. On this subject, the Oberti court aptly observed:
The court will have to rely heavily in this regard on the testimony of educational experts. Nevertheless, in making this comparison the court must pay special attention to those unique benefits the child may obtain from integration in a regular classroom which cannot be achieved in a segregated environment, i.e., the development of social and communication skills from interaction with nondisabled peers.
The third factor to be considered by a court in this regard is the possible negative effect the child's inclusion may have on the education of the other children in the regular classroom. Id. at 1217. The court in Oberti cautioned, however, that "in considering the possible negative effect of the child's presence on the other students, the court must keep in mind the school's obligation under the Act to provide supplementary aids and services to accommodate the child's disabilities."
Once these factors have been considered, and if the court concludes that the school district was justified in placing the child in a segregated special education class instead of the regular classroom, the court must consider the second prong of the mainstreaming test, which is whether the child has been included in school programs with nondisabled children to the maximum extent appropriate:
IDEA and its regulations 'do not contemplate an all-or-nothing educational system in which handicapped children attend either regular or special education.' . . . As the Fifth Circuit stated, 'the school must take intermediate steps wherever appropriate, such as placing the child in regular education for some academic classes and in special education for others, mainstreaming the child for nonacademic classes only, or providing interaction with nonhandicapped children during lunch and recess. . . .' Thus, even if a child with disabilities cannot be educated satisfactorily in a regular classroom, that child must still be included in school programs with nondisabled students wherever possible.
995 F.2d at 1218 (quoting Daniel R.R., 874 F.2d at 1050). These same criteria are incorporated into the New Jersey regulations requiring the least restrictive educational environment. N.J.A.C. § 6:28-2.10(a)(1), (6), (8).
The courts of appeals have also clearly stated that " application of the mainstreaming requirement of IDEA to a particular case is 'an individualized, fact-specific inquiry.'" Id. at 1223 (quoting Daniel R.R., 874 F.2d at 1048).
Just as placement in a regular class with supplementary aids and services is at one end of the continuum of alternate placements required to be made available to special education students under IDEA, placement at a completely segregated, full time residential facility is at the other end of that continuum. See Oberti v. Board of Educ., 801 F. Supp. 1392, 1400 (D.N.J. 1992) ("Oberti II ") ("There must be available, at one end of the continuum, completely segregated placements within separate schools, and, at the other end, placements within regular classes in public schools."), aff'd, 995 F.2d 1204 (3d Cir. 1993). The IDEA expressly acknowledges that "the nature or severity of the handicap [may be] such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." 20 U.S.C. § 1412(5)(B). Thus, the Act does provide for separate classes and even residential placement in certain circumstances. See 20 U.S.C. § 1401(16) (defining "special education"); Id. § 1413(a)(4)(B) (discussing state plans); 34 C.F.R. § 300.302.
Courts have addressed the issue of whether residential placement was the least restrictive educational environment in an ever-increasing number of individual case determinations under IDEA. See, e.g., M.C. and G.C. v. Central Reg. Sch. Dist., 81 F.3d 389, 393 (3d Cir.) (yes), cert. denied, 136 L. Ed. 2d 116, 117 S. Ct. 176 (1996); Diamond, 808 F.2d at 992 (yes); Kruelle, 642 F.2d at 692 (yes). But see, e.g., Scott P., 62 F.3d at 532 (no); Schreiber v. Ridgewood Board of Educ., 952 F. Supp. 205 (D.N.J. 1997) (no); Lascari, 116 N.J. at 53-54, 60 A.2d at 1192-93 (no).
These case law determinations have not as yet yielded clearly delineated standards to guide the decision-makers (families, school districts, administrative and judicial reviewing officers) in their interpretation of the Act and regulations as applied to the issues surrounding residential placement. While each ultimate outcome has been thoroughly considered and solidly based on the governing law and on specific factual findings, the development of standards of interpretation is not as far advanced in this area as it is, for example, in the area at the other end of the mainstreaming continuum represented by the Third Circuit decision in Oberti. Nevertheless, the general outlines of the relevant considerations can be discerned from examining these cases, in light of others involving education of severely disabled children. Also, a case-by-case factual comparison of decisions addressing residential placement reveals the thread of precedential consistency that connects them, as may be seen in the following discussion of relevant factors.
States participating in IDEA have come to recognize, however, that many severe disabilities can and must be accommodated in community-based educational settings. See, e.g., Irving Indep. Sch. Dist. v. Tatro, 468 U.S. 883, 891, 82 L. Ed. 2d 664, 104 S. Ct. 3371 (1984) (EHA required school district to provide in-school catheterization services to a child with spina bifida so that she could attend regular public school); Polk, 853 F.2d at 185 (direct physical therapy once a week may be required, in addition to other related services, for non-ambulatory severely mentally and physically handicapped child placed in special class within school district); Oberti v. Board of Educ., 789 F. Supp. 1322, 1331 n.18 (D.N.J. 1992) ("Oberti I ") (school not permitted to use lack of toileting skills as excuse to exclude child from inclusive program; "working on such skills becomes part and parcel of the education of the student"), aff'd, 995 F.2d 1204 (3d Cir. 1993); Battle, 629 F.2d at 281 (inflexible 180-day school year policy would violate IDEA rights of severely and profoundly impaired and severely emotionally disturbed students).
It is abundantly clear that the fact of having been classified as severely or profoundly mentally handicapped would not, under IDEA, require or even permit a student to be assigned to a full-time residential facility by the school district. See, e.g., N.J.S.A. § 18A:46-17, -19 (permitting exclusion from school of children so profoundly retarded as to be classified eligible for day training; and requiring Department of Human Services to provide programs and transportation for such children attending day training centers); cf. Battle, 629 F.2d at 283 (application of across-the-board policy to all severely handicapped children in lieu of individual consideration of their unique needs would be impermissible under the EHA); see also Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618, 621 (6th Cir. 1990) (issue whether educational placement for legally blind and mentally retarded child functioning at one-month developmental level should be home instruction or school-based program; no issue of residential placement).
It is also recognized that all severely and profoundly mentally handicapped children "tend to learn much more slowly than nonhandicapped children and tend much more quickly to forget what they have learned . . . [and] tend to have great difficulty generalizing skills they have learned from one environment to another." Battle, 629 F.2d at 274. Typically, severely retarded children "may enter the school system without toilet training and lack many basic self-help skills, such as dressing and feeding. Their language deficit is usually significant." Id. None ...