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M.A. v. VOORHEES TOWNSHIP BOARD OF EDUCATION

May 29, 2002

M.A., A MINOR CHILD, BY HIS PARENTS, G.A. AND E.A., PLAINTIFF,
V.
VOORHEES TOWNSHIP BOARD OF EDUCATION, DEFENDANT.



The opinion of the court was delivered by: Jerome B. Simandle, United States District Judge.

  OPINION

Plaintiff M.A. brought this action through his parents, G.A. and E.A.,*fn1 against defendant Voorhees Township Board of Education ("Voorhees"), under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq. ("IDEA"), and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("Section 504"), as an appeal from the final administrative decision of the Honorable Bernard Goldberg, New Jersey Administrative Law Judge ("ALJ"), issued on May 1, 2001. Plaintiffs assert that the education M.A. is currently receiving at Osage Elementary ("Osage"), his neighborhood public school in Voorhees, is appropriate and sufficient, and that the 2000-2001 Individualized Education Plan ("IEP") created for M.A. and the decision of the ALJ below, which called for M.A., an autistic child, to be instructed at an out-of-district placement with a program for autistic children in order to obtain a free and appropriate public education ("FAPE") in the least restrictive environment ("LRE") were inappropriate.*fn2 Plaintiff asserts that the Osage educational program, with some adjustments, is appropriate and the least restrictive option, and that the IEP is flawed because it fails to identify a specific out-of-district placement for M.A. Defendant asserts that it is incapable of providing M.A. with a FAPE in the LRE at Osage, despite its best efforts to do so, and that G.A. and E.A. are responsible for the failure to designate an out-of-district placement.

Presently before the Court are plaintiffs' motion and defendant's cross-motion for summary judgment. Plaintiff seeks to have the ALJ decision reversed and an order directing Voorhees to continue providing M.A. with a FAPE in district at Osage with certain program enhancements, as recommended by plaintiff's expert witness. Defendant seeks to have the ALJ decision affirmed and have M.A. placed in an out-of-district day program. Defendant also seeks a court directive instructing G.A. and E.A. to cooperate in the application and selection process for an out-of-district school.*fn3 For the reasons stated herein, plaintiff's motion for summary judgment will be denied, and defendant's cross-motion for summary judgment will be granted, and the ALJ decision will be affirmed. M.A. shall be placed in an out-of-district program at Eden, Bancroft, or Sawtelle-Collingswood, whichever is first available. G.A. and E.A. are directed to cooperate with the application process.

I. PROCEDURAL HISTORY

On August 11, 2000, after no agreement could be reached about M.A.'s IEP, Voorhees filed a petition for hearing pursuant to N.J.A.C. 6A:14-2.7, seeking to compel placement of M.A. in an out-of-district school for the 2000-01 school year. (App. at 1.) On August 22, 2000, the parties reached a partial mediation agreement and G.A. and E.A. agreed to release M.A.'s records to the Eden School ("Eden") and to the Bankbridge School in Gloucester County ("Gloucester"). (See App. at 3-4.) According to M.A.'s parents, Eden had no openings at that time and also Gloucester was inappropriate. (See 7 Tr. 182-85.) On September 8, 2000, Voorhees sought emergent relief and an Order directing that M.A.'s records be released to Gloucester and that M.A. be placed there pursuant to the IEP. (See App. at 5-6.) Voorhees also sought to have M.A.'s home schooling period extended until an appropriate out-of-district placement was found.

On September 15, 2000, plaintiff and his parents made application for emergent relief and a "stay-put" order to keep M.A. at Osage pursuant to 20 U.S.C. § 1415(j) and 6A:14-2.7(o). On September 29, 2000, after a hearing, the Honorable Bernard Goldberg, Administrative Law Judge, authorized the release of M.A.'s records to four additional schools, Burlington County Special Schools District ("Burlington"), Durand School ("Durand"), Bancroft School ("Bancroft"), and Yale School ("Yale"). (App. at 18-21.) On October 5, 2000, Judge Goldberg ordered that M.A. should remain in his at home placement until October 22, 2000, and that G.A. and E.A. should visit Burlington and Durand to determine whether either was appropriate for M.A. (App. at 22-23.) On October 23, 2000, after no appropriate out-of-district placement could be identified, M.A. returned to Osage to be educated in a self-contained classroom with inclusion during lunch, recess, art, and physical education. Voorhees renewed its request for placement of M.A. in an out-of-district program.

On May 1, 2001, Judge Goldberg issued his final decision after receiving nine days*fn4 of testimony and evidence. (See 1-9 T.) Seven witnesses testified on behalf of defendant Voorhees*fn5 and three on behalf of plaintiff.*fn6 Judge Goldberg made numerous findings in his opinion, including that M.A.'s aggressive behavior adversely affects his education, that M.A. is socially unengaged, that M.A.'s educational goals are largely unfulfilled, and that M.A. needs a specialized educational program which cannot be made to work at Osage. (See App. 29-54, May 2001 ALJ Decision, at 46-47.) Judge Goldberg also found that M.A. cannot be included in any mainstream class at Osage and that the Sawtelle School in Collingswood offers a day program for autistic children. (See id. at 47.) Judge Goldberg finally found that although implementing Dr. Holmes's suggestions could perhaps provide an appropriate education at Osage, such a result is unlikely based on the record. (See id.) Judge Goldberg noted M.A.'s parents' opposition to having M.A. placed anywhere outside of Osage and also G.A.'s refusal of his expert's offer of a placement at Eden for the extended 2001 school year. (See id. at 47-49.)

Judge Goldberg concluded that the record indicated that M.A. required placement in an out-of-district school for autistic children in order to receive an appropriate education. (Id. at 49.) Judge Goldberg further concluded that Eden was an appropriate placement for M.A. in its 2001 extended school year program and ordered placement of M.A. at Eden for the 2001 extended school year. (Id.) Judge Goldman finally concluded that Eden, Sawtelle, Bancroft, and Gloucester also had programs for autistic children and ordered M.A. to be placed in one of those four placements for the 2001-2002 school year. (Id.) Judge Goldman retained jurisdiction over implementation issues. (Id. at 50.)

On May 31, 2001, the instant Complaint was filed by M.A. On December 11, 2001, plaintiff filed a motion for summary judgment on his Complaint. Also on December 11, 2001, defendant filed a cross-motion for summary judgment. On January 31, 2002, a consent order was filed withdrawing certain damages claims. Pursuant to the stay put order, M.A. has remained at Osage since October, 2000.

II. FACTUAL BACKGROUND

The ALJ heard testimony from ten witnesses, including two experts, and the administrative record before this Court contains nine volumes of their testimony, in addition to over 800 pages of documents entered into evidence and relating to M.A.'s education.*fn7 Plaintiffs G.A. and E.A. cite their own testimony and portions of the testimony of their expert, Dr. Holmes, in support of their argument that M.A. made real progress during the 2000-01 school year because Rebecca Null, who they believed was an ineffective teacher, was replaced by Jeff Giancaterino. Therefore, they assert, since Giancaterino arrived, M.A. has been obtaining a "meaningful educational benefit" at Osage. Defendants cite the testimony of teachers, professionals, and administrators at Osage, in addition to the testimony of their expert Dr. Breslin, in support of their position that M.A. is gaining little educational benefit and no social benefit at Osage. Defendants therefore assert that they are unable to provide M.A. with a FAPE in the LRE in-district at Osage and ask the Court to affirm the ruling of the ALJ. Payment for the private, out-of-district placement is not an issue in this case.

A. Fran Collins

The first witness before the ALJ was Fran Collins, Director of Special Services at Voorhees, on behalf of defendant. (See 3T16-148 and 9T169:22-176:16; App. 31-33.) The ALJ found that Ms. Collins acknowledged that M.A. demonstrated aggressive behavior problems during the 1999-2000 school year. (App. at 32.) M.A.'s aggressive behaviors were addressed by reducing expectations and demands for M.A., which improved the behavior problems but caused some educational regression. (Id.) Ms. Collins further testified that a more intrusive behavioral modification plan than the one in place for M.A., developed by the Douglass Consultants, was rejected by G.A. and E.A. (Id.) Ms. Collins testified that she felt it was inappropriate to implement the additional behavioral modification restraints contemplated by Dr. Holmes in a public school setting. (Id.; 3T 82:24-84:5.) Further, Ms. Collins indicated that although M.A.'s aggressive behaviors had decreased with the decreased demands, M.A. had regressed educationally, demonstrated by his rote learning and a general lack of progress in the development of skills. (3T 53:4-54:22.)

B. Dr. Anita Breslin

The second witness before the ALJ was defense expert Dr. Anita Breslin. (See 4T5-115; App. 33-36.) In her experience as an expert witness in this type of case, Dr. Breslin has never before testified as an independent expert at the request of a school board; her approximate 100 past experiences have been as an expert on behalf of the child. (4T 11:20-12:4.) Dr. Breslin's two reports, from May, 2000 and December, 2000, are also a part of the administrative record. (See App. 519-591.) The ALJ noted that Dr. Breslin evaluated M.A. and his educational program and also interviewed teachers and consultants while observing him in his program at Osage in May and December, 2000. (App. at 33.) Additionally, the ALJ noted that Dr. Breslin observed no significant learning, an inability to maintain skills, and no interaction with his peers. (Id.) During her observation, Dr. Breslin noted that M.A.'s vocalization increased from May to December, but that his overall progress was marginal and not meaningful and also that he was unable to generalize isolated skills. (Id. at 34.) Dr. Breslin concluded that M.A.'s educational program could not be made to work at Osage and testified that he needed a comprehensive educational program implemented by in-house specialists. (Id.)

Dr. Breslin expressed real concern about M.A.'s aggressions and potentially self-harmful (pica) behavior. (App. at 34; App. 532, May, 2000 Expert Report.) During her observation of M.A. in May, 2000, Dr. Breslin noted a disturbing intensity of aggressive behaviors against peers and adults, sometimes prompted by demand situations and other times seemingly unprompted, unprovoked, and compulsive in nature. (App. 532-33; 4T 26:12-25.) Dr. Breslin also noted that staff were repeatedly injured by M.A., and required antibiotic ointment for infections. (Id.; App. 661-85, Photographs of staff injuries.) With respect to the more intrusive restraints referenced by Dr. Holmes, discussed below, Dr. Breslin indicated to the ALJ that such methods are not generally employed in a public school setting. Elopements are also a problem, as observed by Dr. Breslin (App. at 536-37), and as reported by his home behaviorist Marjorie Horenstein, B.S., who indicated that M.A. had to be "watch[ed] like a hawk" because he was "fast and impulsive." (App. at 533.)

Additionally, Dr. Breslin opined that M.A.'s placement at Osage is not the Least Restrictive Alternative for him. (App. 535, 549.) Dr. Breslin testified that M.A. has minimal, non-meaningful inclusion with his peers, and is educated in an almost entirely self-contained program within the traditional elementary school setting. (App. 35-36, App. 535-36.) M.A. also demonstrates an aversion to social interaction. (App. at 34-36; 4T 25:1-26:1.)

On cross-examination, Dr. Breslin indicated that she did not conduct a home visit because she perceived G.A. and E.A. to be hostile and felt that such an observation would not be productive. (5T 15:18-17:6.) Dr. Breslin, however, clearly stated that "Mr. and Mrs. A[] are caring and concerned parents who continue to remain proactively involved in securing appropriate educational and related services for their son." (App. 537.) After her observational school visit in December, Dr. Breslin determined that M.A. had fewer aggressions, but reiterated her determination that M.A.'s placement at Osage was not appropriate and offered no opportunity for learning. (App. 35, 535-36.)

In conclusion, Dr. Breslin opined that M.A.'s current placement at Osage was "highly restrictive" and that he requires an instructional setting that uses a systematic data-based approach to improve skills, communication, and interaction while still keeping M.A.'s excessive behaviors under control. (App. 536, 549.) Dr. Breslin further opined that if M.A.'s aggressive behaviors can be further reduced and if he is placed in an appropriate, highly specialized out-of-district setting, M.A. can make the meaningful progress that is crucial to his development as a severely impaired young man with autism. (App. 536-37.) Dr. Breslin concluded that, despite the best efforts of the school district to develop an appropriate program for M.A., the nature and extent of his disabilities require more than can be implemented in a public school setting. (App. 549.)

C. Jeff Giancaterino

The third witness before the ALJ was M.A.'s teacher since the fall of 2000, Jeff Giancaterino. (App. 37-38; 5T 123-6T 75.) Mr. Giancaterino advised the ALJ that while M.A.'s behavioral controls had improved from the 1999-2000 school year, the frequency of aggressions was still significant. (App. 37-38.) Giancaterino acknowledged on cross-examination that a good amount of the comments in M.A.'s daily reports were positive. (6T 51:2-23.) Giancaterino reported that M.A.'s behavior is unpredictable, that he has been injured on numerous occasions by M.A., and also that M.A.'s frequent elopements are dangerous to the child. (5T 146-161, 169-170; App. 661-685, photos of injuries; App. 37-38.) Mr. Giancaterino further indicated that he has never worked with a child as severely autistic as M.A. in a public school. (6T 65:5-11; App. 37-38.) Giancaterino advised the ALJ that M.A. had mastered only 3 of the 35 objectives in his IEP and also that M.A. does not maintain eye contact and often loses skills previously mastered. (App. 37.) Mr. Giancaterino concluded that he felt M.A.'s placement at Osage was not proper. (5T 204:19-22; App. 38.)

D. Rebecca Null

The fourth witness to testify before the ALJ was Rebecca Null, M.A.'s teacher during the 1999-2000 school year. (App. 36-37; 6T 75-159.) Ms. Null has a B.S. degree in speech/language therapy from Purdue University, a masters degree in education from Beaver College, and is currently working towards her Ph. D. in educational psychology and special education at Temple University. (6T 76:5-17.) Prior to her time at Osage, Ms. Null worked at Durand Academy for two years and also provided respite care and shadow teaching to autistic children. (6T 76:18-77:5.) Null testified that although M.A. made some progress in the program at Osage, his level of functioning did not improve and he did not become more independent. (App. 36.) Null reported that although M.A. was able to spell certain words and identify certain objects, he did not know the meaning of the words and could not generalize information. (6T 86:14-88:11.) Ms. Null testified that M.A. needed more than the program he was receiving at Osage, which she concluded provided "isolated splinter skills," and recommended a program that promoted generalization of learning and functional skills. (6T 95:22-96:22.)

Ms. Null also testified about M.A.'s aggressions, which she said were not able to be controlled with the level of intervention available at Osage. (App. 36.) Ms. Null testified that M.A. aggressed against other students on multiple occasions, and that one child cried every time she saw M.A. (6T 96:23-103:8.) Null concurred that elopement was also a problem that was dangerous to M.A. (6T 103:10-104:3.) Ms. Null noted that M.A.'s inclusion time with non-disabled children was reduced after the 1999-2000 school year, primarily because of his aggressions toward other students and staff. (6T 94:17-95:12.)

Ms. Null concluded that M.A.'s education at Osage was not appropriate for him. (6T 92:4-94:1.) Ms. Null, after reviewing the expert reports of Dr. Breslin, concurred that M.A.'s program was not appropriate because he requires level 3 behavioral interventions (physical restraints), which are not used in public schools. (6T 94:3-14.)

E. Ali DeGeorge

The fifth witness to testify before the ALJ was Alexandra (Ali) DeGeorge, the program coordinator for Douglass College Outreach and M.A.'s on-site program coordinator at Osage. (App. 38-40; 6T 161-7T 46.) DeGeorge began working with the Douglass Developmental Disability Center in 1996 and, upon her graduation from college, began working with Douglass Outreach, working at home programs and shadowing in school districts in the area. (6T 162:10-164:22.) DeGeorge had also provided consulting services throughout New Jersey and New York. (6T 163:16-168:2.)

Ms. DeGeorge testified that she has never seen a child as developmentally disabled as M.A. being educated in a public school. (6T 168:18-22.) Ms. DeGeorge testified that in her experience as a consultant in schools all over New Jersey, level three restraints were never used in public schools. (6T 168:3-17.) DeGeorge agreed with Dr. Breslin's conclusions and indicated that it was not even a close call to determine that M.A. requires an out-of-district placement. (6T 168:23-169:18.) DeGeorge indicated that she had personally worked with M.A. at Osage for a year and a half without seeing any real progress. (6T 169:18-23.) DeGeorge testified that a specialized out-of-district placement, such as Douglass, could benefit M.A. since they have more highly specialized facilities and staff. (6T 166:4-15.)

DeGeorge conceded that M.A.'s aggressive behaviors had decreased since the 1999-2000 school year and also that he did not receive his home program until January 2001. (App. 39.) DeGeorge, however, indicated that M.A. still demonstrated significant aggressions and elopements. (App. 39-40.) DeGeorge acknowledged that objectives, such as those in P-9 and asked about by plaintiffs' counsel, can be implemented wherever there are proper materials and staff, but indicated that the program at Osage is "an imitation of what can be done better at an out-of district specialized school" and also that "we've lost a lot of time with M. in these past few years and we need to start moving with some of his more functional curriculum." (7T 8:8-9:1.) DeGeorge concluded that the program at Osage, even with the benefit of Douglass consulting, cannot provide M. with meaningful educational benefit (7T 9:2-5) or any social benefit (7T 9:6-22).

Plaintiffs, just as they did with Mr. Giancaterino, attempt to discount Ms. De George's testimony and experience by referring to her as a "young graduate student who works part-time" and surmising that she is eager to please her "employer," meaning Voorhees. (Pl.'s Br. at 12.) Plaintiffs' unsupported conclusions about Ms. DeGeorge in this area are incorrect. Ms. DeGeorge works for Douglass Outreach, not defendant Voorhees. Indeed, Ms. DeGeorge has a wide breadth of experience in New Jersey and New York, and plaintiffs' attempts to disparage her were rejected by the ALJ. (App. 40.) Similarly, her observations and conclusions will be given weight by this Court.

Plaintiff's brief also refers to admissions and concessions by witnesses not actually present when read in the proper context. For example, plaintiffs argue that "When confronted with these (consultation/progress) reports, DeGeorge indicated that there is nothing in them to support her testimony that M[]'s program or that his placement is inappropriate." (Pl.'s Br. at 14, citing R-4, App. 222-42.) What DeGeorge actually acknowledged was that the reports were generally positive (6T 246:7-9) and also that the positive comments were directed at the staff because she is "always emotionally supportive of [her] staff working with children. . . ." (6T 269:1-13.) Plaintiffs' point, that if things were so bad DeGeorge should have indicated that in her reports, is noted by the Court.

F. Catherine Cook

The sixth witness to testify before the ALJ was Catherine Cook, a school social worker at Voorhees and the case manager for M.A.'s CST. (App. 40-41; 7T 47-116.) Ms. Cook testified primarily about the behavioral intervention plan in place for M.A. at Osage, and also about appropriate out-of-district placements for M.A. (App. 40-41.) Ms. Cook testified that she provided Mr. and Mrs. A with a copy of the 2000-2001 IEP and requested that they cooperate with Voorhees in finding an appropriate out-of-district placement for M.A. (7T 50:5-25.) Ms. Cook indicated that the A's were not cooperative in finding an out-of-district placement for M.A.'s 2000-01 IEP, and a court order had to be entered for the release of M's records to several placements. (7T 51:1-16.)

Ms. Cook testified about several out-of-district placements for autistic children, specifically, the Sawtelle School, which was opening a school in Collingswood, N.J., in addition to its established school in Montclair, New Jersey. (App. 40.) The Sawtelle program is for autistic children only and has an experienced staff and comprehensive ...


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