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M.S. v. Mullica Township Board of Education

April 12, 2007

M.S. AND D.S., INDIVIDUALLY AND ON BEHALF OF M.S., JR., PLAINTIFFS,
v.
MULLICA TOWNSHIP BOARD OF EDUCATION, DEFENDANT.



The opinion of the court was delivered by: Honorable Joseph E. Irenas

OPINION

Plaintiffs, M.S. and D.S., individually and on behalf of their minor son, M.S., Jr., bring this Individuals with Disabilities Education Act ("IDEA") suit, 20 U.S.C. §§ 1400-1491, against the Mullica Township Board of Education (the "Board of Education" or "School Board"). Plaintiffs assert that Defendant failed to provide M.S., Jr. with a free and appropriate public education. They seek tuition reimbursement for their unilateral placement of M.S., Jr. in private school for the 2004-2005 school year, as well as reimbursement for additional private occupational therapy sessions and independent evaluations performed on M.S., Jr. Defendant asserts a counterclaim, appealing the Administrative Law Judge's ("ALJ") decision that Plaintiffs were entitled to reimbursement of costs associated with certain independent evaluations of M.S., Jr.

Plaintiffs move for summary judgment. Defendant cross-moves for judgment on the administrative record.*fn1

I.

M.S., Jr. was born on February 24, 1999, eight and one half weeks premature, due to complications with his mother's pregnancy. He spent the first five weeks of his life in the hospital, during which time he suffered end-lung disease, heart failure, and a brain hemorrhage. These events, and the health challenges M.S., Jr. faced after leaving the hospital,*fn2 resulted in developmental delays in his gross and fine motor skills, speech-language development, and sensory integration.

Plaintiffs became involved with Defendant Mullica Township Board of Education in the first months of 2002, when a Child Study Team ("CST") evaluated M.S., Jr. He was three years old at the time. Because the CST determined that he was Preschool Disabled,*fn3 an Individualized Education Program ("IEP") was created for M.S., Jr., pursuant to which he was enrolled in the Board's mainstream preschool.*fn4 He received early intervention services, including occupational therapy, speech therapy, and physical therapy. Most relevant to the present dispute, the IEP provided that M.S., Jr. was to receive 30 minutes of occupational therapy once a week. (Administrative Record ("A.R.") at R-2, p. 9)

Approximately one year after M.S., Jr.'s preschool enrollment, the CST reconvened for an Annual Review IEP conference. D.S. attended the conference. The Annual IEP Review Report, dated February 21, 2003, states, [M.S., Jr.] has demonstrated wonderful progress thus far in [the Occupational and Speech Therapy] program. [He] is participating well with the other children and is even attempting to help other students with things they find difficult. [He] is communicating well, using appropriate sentence length utterances to describe things, answering and asking questions and participating in simple conversations. Although he has improved greatly, it is still felt that he would benefit from continued Occupational and Speech Therapy to maintain his skills and introduce new skills as he matures.

(A.R. at R-4) The Report provided that during the next year, M.S., Jr. would receive occupational therapy once a week for 30 minutes. (Id.) D.S. signed the IEP Review Report indicating with a check-mark in the appropriate box that, "I (We) the parents of [M.S., Jr.] agree to the recommendation of program [sic] and related services described in this Individualized Education Program." (Id.)*fn5

Despite the CST's conclusions regarding M.S. Jr.'s progress in occupational therapy, in September, 2003, D.S. sought an independent evaluation of M.S., Jr., by Leigh Ann Bliss, an occupational therapist at Voorhees Pediatric Hospital. The report generated from the evaluation observes that M.S., Jr. exhibited "moderate to severe impairment" in fine motor skills and sensory processing and "moderate impairment" in postural mechanisms, visual perception, and "activities of daily living." (A.R. at P-6) The report further explained, [M.S., Jr.] is having difficulties in the areas of auditory processing, vestibular (movement) processing, touch processing, multi-sensory processing, and modulation of sensory input as related to emotional responses and activity level. [He] also demonstrates some challenges with his behavioral responses to sensory input, including emotional and social responses. [He] also demonstrates overall postural weakness, especially in his upper extremities and trunk. It was very difficult for him to assume and sustain anti-gravity postures. Overall, [M.S., Jr.] is demonstrating challenges in all developmental areas and it therefore negatively impacts his abilities to independently perform age appropriate daily tasks such as ADL's, play skills and school activities. (A.R. at P-6) Ms. Bliss recommended occupational therapy once a week for 60 minutes to improve "fine motor, visual motor/visual perceptual, motor coordination and sensory processing/sensory modulation skills." (Id.) The long term goals of the occupational therapy included,

(1) "mature grasp pattern of writing utensil 100% of the time";

(2) "fasten/unfastening of buttons, snaps and zippers 90% of the time";

(3) "complete unfamiliar motor actions with only one additional verbal cue after initial instruction";

(4) "demonstrate age appropriate postural strength as needed to participate in gross motor games such as animal walks, and sitting upright in a chair for extended periods of time";

(5) "demonstrate an appropriate response to sensory input in the areas of touch, vestibular and auditory input";

(6) "complete tasks of visual motor/visual perceptual skills (i.e. puzzles, construction/building games, and writing) with minimal assistance"; and

(7) "Family will demonstrate carryover of recommended home activities 100% of the time." (Id.)

In a letter D.S. sent to the CST on September 26, 2003, D.S. reports that based on the results of Ms. Bliss' evaluation, "[M.S., Jr. appears to have weakness and rapid fatigue in his hands and upper body. He continues to have difficulty with fine motor skills, posture, and auditory processing. It seems that he needs more frequent occupational therapy than is available on site at the school." (A.R. at R-6) D.S. inquired "whether the child study team could cover the expense of this additional occupational therapy." (Id.)

Loretta Becker, a social worker and member of the CST, spoke to D.S. about the letter on October 1, 2003. They scheduled a meeting for October 17, 2003, "to discuss [D.S.'s] concerns." (A.R. at R-6) Ms. Becker spoke to D.S. again the following day. Ms. Becker's notes in the "Parent/Guardian Contact Log" (maintained in M.S., Jr.'s file) state,

[D.S.] voiced concern re: Vor. Pediatric Hospital O.T. statements that [M.S., Jr.] has auditory processing problems and needs additional O.T. services . . . further discussions are warranted at 10/17 meeting. (A.R. at R-6) A formal letter to M.S., Jr.'s parents followed, indicating that a Program Review was scheduled for October 17, 2003, in order "to review the progress your child has made, discuss your concerns as noted in the letter you submitted to the Child Study Team on September 30, 2003, and to review whether or not the program and placement currently being provided are still appropriate for your child's needs." (A.R. at R-7)

The Program Review was held on October 17, 2003. The "Reevaluation Evaluation Plan" that resulted from the meeting states,

The Mullica Township Child Study Team has reviewed and considered the Occupational Therapy Evaluation report from Voorhees Pediatric Hospital, however, [M.S., Jr.] is not demonstrating those delays in his academic environment with the exception of weak grasp pattern on writing utensil. He is beginning to do this with verbal cues. The goals recommended by the Occupational Therapist from Voorhees Pediatric Hospital are the same as the goals the school based Occupational Therapist is focusing on. The Mullica Township Child Study Team discussed in length with [D.S.] [M.S. Jr.'s] achievements and progress thus far. Due to the discrepancy between [M.S. Jr.'s] behavior and functional abilities at home, the report from Voorhees Pediatric Hospital, and his behavior and functional abilities at school, the Mullica Township Child Study Team has suggested a re-evaluation to be completed at school to assess his academic status, occupational and speech skills at this time. . . . [D.S.] has not agreed to this re-evaluation at this time. [She] is requesting Occupational Therapy at Voorhees Pediatric Hospital instead of the school based Occupational Therapist as she feels more comfortable with them. As stated above, the school based Occupational Therapy is presently working on the same goals that were suggested by Voorhees Pediatric Hospital. She would also like auditory processing therapy, however, he is not demonstrating difficulties in this area during school.

(A.R. at R-5) D.S. signed the reevaluation report, acknowledging that she received and reviewed it, but attached a one-page, typed letter outlining the reasons why she disagreed with the CST's conclusions:

[I] sent a letter to the Child Study Team on September 26, 2003 requesting that [M.S., Jr.'s] current occupational therapy services be extended to an outside provider, and requesting a copy of [M.S., Jr.'s] CST records in order to finish his application for funding/benefits through DDD. [I] did not request this meeting, which was planned and arranged by Ms. Loretta Becker. [I] asked why there would be a meeting and Ms. Becker stated, "To discuss your concerns." All [I] wanted was administrative approval for extension of current services to an outside provider. . . . [M.S., Jr.'s] activities at school have not completely reflected what is in his IEP. [I] indicated at the October meeting how [M.S., Jr.'s] developmental issues are too multiple and complicated to be handled by the school, and that we need to obtain more specialized help from the outside. [M.S., Jr.'s] motor skills had not improved after 19 months of therapy at the school, but they began to improve after one month of therapy at Voorhees. The Child Study Team staff kept insisting that [M.S., Jr.] is developmentally normal and does not qualify for special education services anymore. A social worker, Ms. Heins, arranged to have [me] come to the school for counseling to accept that [M.S., Jr.] is 'normal,' despite the recent report from Voorhees Pediatric Rehabilitation Hospital indicating that my son is moderately to severely impaired in at least 5 developmental areas. Although [M.S., Jr.] has improved in expressive language during the past year, he still has multiple serious developmental impairments which affect his ability to learn and function at school. The Child Study Team denied all of the developmental findings of the outside evaluation, and would not consider any of its contents. The goals in the evaluation at Voorhees are different from the ones at school. The recommendation from Voorhees is for OT services once per week for 60 minutes but no duration has yet been determined.

The Child Study Team also repeatedly and adamantly refuted that [M.S., Jr.] has sensory integration disorder. Ms. Grob*fn6 and Ms. Becker also made repeated accusations that [M.S., Jr.] is not performing at home because of his 'home environment.' The Child Study Team dismissed any input and observations stated by [me]. . . . The school so far will only recommend what they have available 'at the school' for [M.S., Jr.], instead of recommending what he actually needs.

(A.R. at R-5)

M.S., Jr. had already begun private occupational therapy once a week when the reevaluation meeting took place. (A.R. at P-48)

On October 24, 2003, D.S. wrote to the Superintendent of the school district advising him that M.S., Jr. was "moderately to severely impaired in 5 developmental categories" and required services from Voorhees Pediatric Rehabilitation Services. (A.R. at R-9) She stated that M.S., Jr. required occupational therapy twice weekly using equipment "not available at the school or home." (Id.) She continued,

I am now requesting that my son no longer be treated by the school's current contracted Occupational Therapist, Sandra Grob. This therapist has not only been ineffective, but she has also caused harmful effects on my child's development.

I am requesting that the Child Study Team and the Hilda Frame School staff no longer discuss or consult with the school's occupational therapist regarding my son's development or activities. Any questions should be forwarded to my son's Occupational Therapist (Lee Ann Bliss) at Voorhees Rehabilitation Services.

I am also requesting that the staff at the Hilda Frame School not do any brushing or sponge brushing activities with my child. This therapy has been taught and used with improper technique, which has sent scrambled messages to my son's brain. I am also requesting that is the school staff uses a compression vest, that it never be applied for more than 15-20 minutes.

(A.R. at R-9)

The principal of M.S. Jr.'s school responded to D.S. on October 27, 2003, advising her that the CST had created a reevaluation plan to guide the CST in their determination whether M.S., Jr. required "additional or different Occupational Therapy Services." (A.R. at R-11) He further advised that the school would honor her request that Ms. Grob stop providing occupational therapy to M.S., Jr. but stated that the school would still consult with Ms. Grob regarding M.S., Jr.'s needs. (Id.) Lastly, the principal indicated that the school would honor D.S.'s other requests regarding her son's treatment. (Id.)

After D.S. requested that M.S., Jr. stop occupational therapy at school, he began twice weekly private occupational therapy, which continued until May 26, 2005. (A.R. at P-48)

The CST held the Reevaluation Classification meeting on March 12, 2004.*fn7 The stated purpose of the meeting was to "determine [M.S., Jr.'s] academic and school based therapy needs at this time" in light of the discrepancies between Ms. Bliss's evaluation and the observations of the school's therapy providers. (A.R. at R-20) The CST reviewed evaluations from M.S., Jr.'s Speech-Language Therapist, Ms. Sullivan-Pittman and his Occupational Therapist, Ms. Grob.

Ms. Grob's evaluation reported the results of three motor skills tests, revealing below-average performance on grasping patterns and eye-hand coordination.*fn8 (A.R. at R-20) Ms. Grob concluded,

[M.S., Jr.'s] skills tend to scatter with the area of most difficulty being with his immature grasping patterns. Sensory motor skills have greatly improved though [he] continues to be impulsive and sometimes [is] distracted by his environment. It is recommended that [M.S., Jr.] continue to receive occupational therapy services, one time a week, for 30-minute sessions. Focus of intervention will be to improve sensory motor processing skills for all school related activities.

(A.R. at R-20)

A new IEP (the "March 2004 IEP") was created based upon the information reviewed by the CST at the Reevaluation Classification Meeting. The IEP stated that the "measurable annual goals" for M.S., Jr. were to "[i]mprove sensory [fine/gross] motor skills for all school related activities" and "[t]o maintain age appropriate communication skills." (A.R. at R-21) The Recommended Program was Integrated Preschool with daily language arts, learning stations, and gross motor activity. (Id.) The IEP also provided for occupational therapy once a week for 30 minutes. (Id.)*fn9

On May 13, 2004, D.S. wrote to the CST stating, We feel strongly that the school district has failed to provide our son, [M.S., Jr.] with a free and appropriate public education. As a result, he has failed to ...


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