GB and LB obo BB v Hunterdon Voorhees Regional High BOE | Case 00417-19 | 2019-10-31

New Jersey is an Equal Opportunity Employer. State of New Jersey OFFICE OF ADMINISTRATIVE LAW FINAL DECISION OAL DKT. NO. EDS 00417-19 AGENCY DKT. NO. 2019-29065 G.B. AND L.B. ON BEHALF OF B.B., Petitioners, v. HUNTERDON/VOORHEES REGIONAL HIGH BOARD OF EDUCATION, Respondent. Staci J. Greenwald , Esq., for petitioners (Sussan, Greenwald and Wesler, attorneys) Teresa L. Moore, Esq., for respondent (Riker, Danzig, Scherer, Hyland, Perretti, LLP, attorneys) Record Closed: October 7, 2019 Decided: October 31, 2019 BEFORE SARAH G. CROWLEY, ALJ: STATEMENT OF THE CASE AND PROCEDURAL HISTORY This case arises under the Individu als with Disabilities Education Act (IDEA), 20 U.S.C. §§1401-1484(a). B.B. is a sixteen-year-old student who is eligible for special education and related services under the IDEA. Petitioners, G.B. and L.B . filed a

OAL DKT. NO. EDS 00417-19 2 petition for d ue process alleging that the IEP proposed by respondent Hunterdon/Voorhees Regional H igh Board of Education (Board or District) failed to provide B.B. with a free appropriate public education (FAPE). Petitioners seek reimbursement for the cost s of their unilater al placement at Winston Pr eparatory School (Winston). B.B. and his family reside in Tewks bury Township, which has a K-8 school only. Tewksbury students attend Hunterdon/Voorhees Regional High School. B.B. was placed in Winston , a special education school pursuant to an agreement with Tewksbury in 2015. The K-8 students officially become students of respondent District on July 1st. On September 11, 2018, the petitioners advised the District of their intention to make a unilateral placement of B.B. at Winston. School had already commenced in the district and at Winston, and no IEP had been proposed or agreed upon. Tewksbury had n ot completed an IEP on B.B. for three years. In early September the case manager from the District observed B.B. at Winston. B.B.’s IEP was comp leted and provided to the parents on S eptember 17, 2018. The IEP proposed an in-district placement at one of the regional high schools. The parents did not accept the proposed IEP and commenced the within due process proceeding. After unsuccessful mediation, the case was transmitted to the Office of Administrative Law (OAL) where it was filed on January 19, 2019 . Hearings were conducted on April 15, 2019, June17, 2019 and June 21, 2019. Briefs were filed by the par ties on September 18, 2019, and September 24, 2019, and the record closed after submission of a joint exhibit list on October 7, 2019. TESTIMONY AND FINDINGS OF FACT Respondent’s witnesses: Dr. Zulejka Bahare v, Ph.D. is the Di rector of Special Services for the district. She was accepted as an expert in education, special education and learning disabilities (LD). She discussed the process of transitioning special education student s fr om middle school t o high school . B.B. had been at Winston, a private scho ol provid ing

OAL DKT. NO. EDS 00417-19 3 special education services pursuant to an agreement with the K-8 district. Dr. Baharev was not employed by the district at the time of the transition of B.B. from eighth grade to the district. B.B. did not have an IEP when he became the responsibility of the district on July 1, 2018. T he parents provided consent to T ewksbury to conduct all the recommended evaluations in April of 2018 . The evaluations were all completed except the OT and PT. A letter wa s sent to the parents in July 2018, requesting consent for two additional evaluations. The initial meeting with the parents was schedu led for August 30, 20 18. She was not present at the August 30, 2018, meeting of the child study team. The child study team determined that B.B. was eligible for special education services under the classification of “Other Health Impaired” (OHI), and recommend his placement in one of the regional high schools. As part of the IEP process, the case manager needed to observe B.B. at Winston. He observed him in an English class and had a conversation with the principal. Dr. Baharev also had a conversation with the p rincipal at Winst on and observed B.B. in the classroom. Based on her g eneral observation, she though t that B.B. was higher functioning tha n the other s tudents. T he new case manager was invited to the IEP meeting , as the prior case manager had gone out on maternity leave. The new case manager was familiar with the LLD program at the high school which was proposed for B .B. She was not present at the I EP meeting that took place on September 17, 201 8. The y proposed an in -district placement at one of the regional high schools. The IEP propose d a self-contained classroom a t on e of the regional high schools. She felt this structure was appropriate for B.B. as it is on the small side and they could modify the curriculum to fit his needs. The e lectives such as art, music and foreign language were not in the self-contained classrooms. The school psychol ogist came in two times a month for individual or group counseling. The sports program was specifically for students with disa bilities, as they are not your typical athle tes. They use peers to wor k with the special education students and they are t here to assist the special education students. The LL D students have their clas ses in a specific part of the building and the general ed ucation classes for the electives would be i n the other

OAL DKT. NO. EDS 00417-19 4 part of the school. The y use peers to escort the special education students to their electives in the other part of the building. Dr. Ba harev testified that the proposed IEP provided for modifications based upon his strengths and weaknesses. B.B. was also given extra time, voice over and other appropriate accommodations. Dr. Baharev went to Winston in January to observe B.B. She met with the principal to discuss their program, the school and the population of students in the school. She observed one lesson, which was a one-on- one. Other than this short observation, she had never meet B.B. or talked to any of his teachers. She never spoke to anyone a t Tewksbury about B.B. However, she did review his records. The proposed IEP placed B.B. in a self-contained English, science, and math class. She was not certain how the schedule works. She felt it would be better for B.B. to be in a classroom with other s like hi m. She did not provide any testimony regarding the others in the classroom in the proposed IEP a nd why she thought they were “like him.” Dr. Baharev felt that B.B. would be better in-district and felt that the program they had for him was appropriate and would be the least restrictive environment. She is not aware if any of the classes are college p rep classes and likewise, did not a sk th is question at Winston. She testified that whenever it is a new st udent, it takes some time to come up with the be st program, which is why they do a thirty-day review after a new student comes into the district to m ake sure the IEP is working and the student i s happy. They have peers with them when they are going to lunch or into the ge neral education classes. She de fended t he go als and objectives as being general, as opposed to specific so they could be modified at a later date. Dr. Baharev was questioned about why the proposed IEP did not address basic phonics/decoding. She was not certain why they did not include any specific goals and objectives with re spect to phonic s. However, she did reite rate that the IEP could be modified at a later date after they got to know the student better. When th ey met on August 30, 2019, the IEP was not yet developed and they wanted to observe the child in his school setting first. She testified that she attends some of the meetings, but she

OAL DKT. NO. EDS 00417-19 5 is not part of the IEP team, and did not attend the IEP mee ting. She conceded that there was no behavior intervention component in the plan , and no OT and PT evaluations had been completed. The Child Mind Institute report that the parents had recently completed was accepted. The goals and objec tives from W inston were not included in the IEP , and t here were no specific goals for re ading comprehension and fluency. The other factor which the IEP di d not address was the emotional issues with sending B.B. to a new , significantly larger school. She was questi oned about why the extra-curricular activities, which was such an important part of his overall success at Winston, were not addresse d at all. There was no plan as to how to integrate him, except that he would be able to participate with the other special needs’ students, which had a very wide range of functioning. Elaine Nestel is the Director of spe cial education ser vices for the District and was qualified as an expert i n spe cial education and learning disabilities . S he was responsible for evaluating B.B. d uring the summer for his reading, math and phonics levels. Her testing determined that he was reading at an eighth-grade level, which was sufficient for his grad e level. He struggled more in the phonics and decoding areas as well. She administered a math test from the Woodcock Johnson. She explained the subparts of the test and the results. Overall, his scores were low. Ms. Nestel was on the ev aluation team, but s he was not part of the IEP development and was not at the IEP meeting. She went to Winston to observe B.B. at Winston, after the mediators recommended that the District o bserve B.B. in his school setting. She indicated that there were large rooms with a lot of activities. She test ified that the LLD classroom a t North Hunterdon was an appropriate placement for B.B. However, she did not elaborate as to why, or exactly what information she relied upon in reaching this conclusion. She was not familiar with the range of disabilities in this proposed cl assroom and how B.B. compared to th e other students in terms of functioning. She emphasi zed that they would re-evaluate B.B. after they got to know the student. She did not talk to the tea chers at Winston about B.B. and she did not review any of the records from Tewksbury.

OAL DKT. NO. EDS 00417-19 6 Petitioners’ witnesses: Megan Brown, Ph.D. testified for the petitioner s. She was familiar with B. B. as she had done an evaluation for Tewksbury in 2015, and recommended his pla cement out of district at that time. Her practice specializes in ADHD children. She ha s worked as a school psychologist, she has a Ph.D. in Psychology and a master’s in counseling. She was accepted as an expert in psyc hology and development of IEPs in ADHD children and children with learning disabilities. She was initially contacted by the District to do an independent evaluation some years ago. She did some testing and reviewed his scores. His strength in ver bal comprehension, was somewhat skewed as he was not on his medication at the time of the testing and thus, an underestimate of his ability. B.B. has problems with w orking memory and processing speed . T his can be remediated with every day practice , fluency drills, practice with visual a nd working memory. She would expect goals and objectives to address these issu es in his IE P. She did the Wechsler test, and he scored in the average range – at or better than thirty- seven percent of the kids. The next area that she tested was or al expression, which is your ability to verbally communicate. This function relies on working memor y and processing s kills which B .B. was lo w in . Reading comprehension is also a major weakness for him. He made significant progress at Winston in this are a, as Winston focused on go als and objectives in this area and had specific goals for written expression. The proposed IEP did not have any sp ecific goal s and objectives to address these issues. The neuropsychiatric evaluation revealed B.B.’s attention deficit and his deficits with auditory processing and reading comprehension. These deficits can affect a child socially and make it difficult to make and keep friends. At Winston they recognized this and focused on social skills. Based on t he results of the testing that she completed, she recommended that B.B. be place d in a specialized school with a small teacher to student ratio. Moreover, he had specific goals and objectives relating to the problems with decoding, executive function deficiency, as well as memory speech and language issues at Winston . The full recommendation was contained in her report. She also

OAL DKT. NO. EDS 00417-19 7 opined that Winston addressed th e social issues and she felt strongly that any proposed IEP sho uld include specific goals and objectives with res pect to the social skills and integration. She was c ontacted by the pa rents in 2018, about the proposed placement in the regional hi gh school. She did not retest him, as he had been recently tested, and she reviewed all the test results. In addition, she observed the programs at Winston as well as the District, and reviewed the records from Winston. The District proposed an IEP for B.B. that had no specific goals and objectives in several critical areas. Significantly, the social and emotional pieces were not addressed at all. Although they recognized the attention issues, there needed to be specific goals and objectives to address the na tural effect of this on h is social and emotional development and relationships with others. The proposed IEP did not address these issues, and had no specific goals and objectives related to the se areas. B.B. is a little awkward and has a h ard time so cially, which was addresse d at Wins ton but there was nothing in the proposed IEP to address this and no goals and objectives in this area. This is a crucial ar ea, especially in high school. Dr. Brown felt that B.B. ’s placement in a very large regional high school, without a plan to address the social issues was wrong for B.B. and had no chance of providing any meaningful educational benefit. Dr. Brown observed the learning-disabled English and mat h class, which were proposed for B.B. In the English class, there was no teaching, and the students were in groups and were working on different programs , and the chrome books were not working. Th ey had a p eer leaders’ program, to help integrate the s pecial education students with the others. However, this program was another way of singling him out as different and would further isolate him. There was a very short time period in between classes and the h allways were very hectic. This would have been overwhelming for B.B. She also observed that the teacher had a hard time commanding the attention of the students in the classroom, due to the wide range of disabilities of the children in th e classroom. At Winst on, B.B. is grouped with children with similar disabilities and cognitive abilities. There was a lot of activities and kids getting up and the lesson itself was difficult to follow. Such a setting is very difficult for an ADHD child. Neither the English or the math programs that she observed were appropriate for B.B. In addition

OAL DKT. NO. EDS 00417-19 8 to the absence of specific goals and objectiv es, the children in the pro gram were not cognitively at the same level of B.B. B.B. does not do well in a large setting such as this, and the proposed IEP was all wrong for him . She concluded that in her expert opinion, B.B. would not make any meaning ful educational progress under the District ’s proposed IEP. She observed B.B. at Winston in October 2018. Winston had specific goals and objectives to address all of these issues. Specially, when she observed him at Winston, they were set up in cubicles and there was one -on-one. She observed B.B. and he performed well in this one-on-one atmosphere with no distractions. The English class was a small class as well . They reviewed the r eading and strategy lesson and they all had a binder or notebook with them. She noted the incredible progress B.B. had made at Winston. B.B. had become more independent and his confi dence was improved. He was carrying himself in such a way that h e was engaged, happy and much more successful. She stron gly recommended that he n ot be re moved from Winston, as this was a much more appropriate placement for him. Moreover, the IEP proposed by the District, lacked specific goals and objectives and was all wrong for B.B. It had no provisions for the social and emotional aspects of B.B.’s disability, which is so integral to any academic success for him. The IEP had no plans for his tr ansition to such a large and unfamiliar setting, no plans to incorporate him into the spor ts and other extracurricular activities that he was thriving in at Winston. He would have been placed in a classroom with children with a wide range of disabilities and cognitiv e levels. Finally, the one -on-one aid and /or the peer program would make B.B. feel intimated and awkward in a brand-new setting. Dr. Brown strongly recommended that B.B. remain in his current educational program so that he could continue to meet his goal s and objectives and achieve continued success in his academic program. She concluded in he r expert opini on that the proposed IEP was not reasonably calculated t o conf er any educational be nefit on B.B. and wo uld thus, result in a denial of FAPE.

OAL DKT. NO. EDS 00417-19 9 L.B. is B.B.’s mother. B.B. was diagnosed with a disability at three years old. He started Kindergarten at six years old and was originally classified as “other health impaired.” It was initially just ADHD, but h e also had an auditory processing disorder and some executive function issues. He was later diagnosed with math and nonverbal learning disabilities. He was getting by in early years of grade school , but the gap was widening as he got olde r. He was pul led out of the resource room and received supplement services and did okay until fifth grade. He became very frustrated because he could not do the work and the disabilities were preventing him from having friends and he was not involved in clubs or sports. He was becoming isolated. The other kids made fun of him and the homework batt les were terrible. Eventually he was refusing to go to school. He needed constant oversight to stay on t ask and he needed a behavior plan. What happened in the resource room did not carry over to the classroom. Every teacher had a different strategy and things were not working. Everything and everyone were too ad vanced for him, and he was failing. After they had evaluations done, someone recommended Winston. In 2015, they entered into an agreement with the Tewksbury District to send him to Winston. L.B. testified that Winston has been a great fit for B.B. He feels like he is part of the community as opposed to an outsider. He has friends and h e is involved in activities and sports at school. The teachers all understand him and kids with learning differences. He has developed the ski lls necessary to do the work. Before everything about school was a constant battle, and now he does it on his own with the skills that he has learned at Wi nston. However, he is s till far behind his grade level and does not have the social skills ne cessary for a large High School , where he does not know anyone, and would not be able to be involved in any activities or sports. The first time she had any contact with the District was in July 2018, before ninth grade. The Child Mind, who petitioners had used f or some te sting, recommended a speech and language evaluation, and Hunterdon wanted to do a reading screening. They did additional testing in July and Augus t, but the last IEP he had was three years old. She met with the school and the y said B.B. was eligible for special education services, but there was no IEP. They could not decide about a new school withou t an

OAL DKT. NO. EDS 00417-19 10 IEP and they did not meet with the child study team until August 30, 2018. They were very concerned with the progra m that the District had ultimately proposed on September 17, 20 18. The program seemed to lack appropriate goals for B.B. and she was very concerned about the social and peer aspect of it. It was a school that was not their home school and it was very large. The only approach they had to address the size of the school and integrating was to use peers, which would make B.B. feel even more isolated. The only sports and extracurricular programs available for B.B. were the ones for children with disabilities, which were much more severe than B.B. However, he was not capable of participating in regular activities without a one-on-one aid, which was impossible at this level , and not even considered by the District. It is difficult for B.B. to participate in sports without an aid, but the aids are embarrassing for him when others don’t have it. It is diffe rent at Winston as they all need a little direction, and they get it without feeling embarrassed about it. He would be totally isolated at the school as opposed to being i ntegrated into a school with like ch ildren. It is very difficult to separate the emotion al from the educational components of school, but the y are s o related. If B.B. is not happy , he is not goi ng to learn . This was a big part of the problem before he went to Winston. In addition, there was no transitional component to the IEP. He was to go from three or four years at Winston to a regional high school overnight. He is thriving at Winston and you are not going to meet a happier kid. She never observed the LLD class at Nor th Hunterdon, and n ever saw th e program in action. She did view summer school at Voorhees, but they were not the LLD students and the su mmer program is different. She went to look at it as she was trying to gather as much information as possible on the program that was being offered to B.B. However, she did not want him to start in the middle of the year, the transition was going to be diffi cult enough f or him. And after she saw the program , she was concerned th at it w as not the right pr ogram for him. He receives school-based counseling at Winston and the social skills that they teach which are so crucial to B.B.’s overall educational success is worked into the classes at Winston. He is not pulled out and made to feel different and t hus, this component of the proposed IEP would further isolate B.B.

OAL DKT. NO. EDS 00417-19 11 FINDINGS OF FACT The resolution of the petitioners’ claims in this matter requires that I make a credibility determination regarding the critical facts , as well as the expert testimony . The choice of accepting or rejecting the witnesses’ testimony or credibility rests with the finder of fact. Freud v. Davis, 64 N.J. Super. 242, 246 (App. Div. 1960). In addition, for testimony to be believed, it must not only come from the mouth of a cre dible witness, but it also must be credible. It must elicit evidence that is from such common experiences and observation that it can be approved as proper under the circumstances. See Spagnuolo v. Bonnet , 16 N.J. 546 (1954); Gallo v. Gallo, 66 N.J. Super. 1 (App. Div. 1961). A credibility determination requires an overall assessment of the witnesses’ story considering its rationality, in ternal consistency and the way it “hangs together” wit h the other evidence. Carbo v. United St ates, 314 F.2d 718,749 (1963). A fact finder is free t o weigh the evidence and to reject the testimony of a witness, even though not directly contradicted, when it is contrary to circumstan ces given in evidence or contains inherent improbabilities or cont radictions which alone, or in connection with other cir cumstances in evidence, excite suspicion as to its truth. In re Perrone, 5 N.J. 514. 521-22 (1950). See D’Amato by McPherson v. D’Ama to, 305 N.J. Super. 109, 115 (App. Div. 1997). Having had an opportunity to carefully observe the demeanor of the witnes ses, it is my view, and I FIND that Dr. Baharev’s testimony was not credible. Moreo ver, her testimony was not corroborated by the documentary evi dence. She di d not demonstrate that the proposed IEP would provide a meani ngful educational benefit to B.B. and it did not have specific goals and objectives for B.B. The testimony that she provided was not supported by the facts and the documentary evidence. I FIND that Ms. Nestel ’s testimony provided no assistance in the determination of FAPE , as she was not a part of the IEP de velopment proc ess and provided no testimony o n this critical issue. However, I FIND the testimony of Dr. Brown to be credible and was corroborated by the documentary evidence as well as the testimony of B.B. ’s mother, whom I also found to be credible. I therefore FIND the following as FACT:

OAL DKT. NO. EDS 00417-19 12 1. B.B. was diagnosed with disabilities at the age of three. H e was classified as OHI in kindergarten. 2. B.B. was later diagnosed with other learning disabilities. 3. B.B. was placed in Winston , a special education school in 2015, pursuant to an agreement with the K-8 District. 4. B.B. became the respo nsibility of the Hunterdon/Voorhees District on July 1, 2018. 5. An IEP had not been completed on B.B. for several years. 6. An initial meeting of the child study team was conducted on August 30, 20 18. 7. B.B.’s parents provided notice o f a unilateral placement at Winston on September 11, 2018. 8. The District provided the pa rents with a proposed IEP on September 17, 2019. 9. The District’s IEP proposed placement of B.B. in one the regional hi gh schools. 10. The proposed IE P failed to provide specific goals and objectives in several critical areas. 11. The proposed IEP failed to provide any plan to integrate B.B. into the District. 12. The proposed IEP had no plan for the social and emot ional aspects of B.B.’s educational plan.

OAL DKT. NO. EDS 00417-19 13 13. The District’s proposed IEP was not reasonabl y calculated to confer any meaningful educational benefit on B.B. 14. The proposed IEP would have resulted in a detail of FAPE. 15. Winston teachers had plans with specific goals and objectives for B.B. 16. Winston had sports and extracurricular activities for B.B. 17. Winston had social and emotional programs buil t into their curriculum which are essential for B.B. 18. The placement at Winston provided a meaningful educational benefit for B.B. LEGAL DISCUSSION AND ANALYSIS The Individuals with Disabilities Education Ac t (I DEA), as amended by the Individuals with Disa bilities Educatio n Impr ovement Ac t ( IDEIA), 20 U.S.C. §§ 1400- 1482, provides the framework for special education in New Jersey. It is designed “to ensure that all c hildren with disabilities have available t o them free a ppropriate public education that emp hasizes special e ducation an d rel ated se rvices designe d to meet their unique needs and pre pare them f or employment and independent living.” 20 U.S.C. § 1400(d)(1)(A ); see generally id. § 1400(c), (d) (descr ibing need fo r, and purposes of, the IDEA). A st ate may qualify f or fed eral funds under the IDEA by adopting “policies and procedures to e nsure that it meets” several enumerated conditions. This Act requires that boards of education provide students between the age s of three and twenty -one who suffer f rom a disability with a free appr opriate public education, or FAPE. In fulfilling its FAPE obligation, the Board must develop an IEP for the student, and the IEP mu st be reasonably calculated to confer some educationa l benefit. Hendrick Hudson District Board of Education v. Rowley, 458 U.S. 176, 192, 73

OAL DKT. NO. EDS 00417-19 14 L.Ed. 2d 690, 703, 102 S.Ct. 3034 (1982) (Rowley). The Third Circuit Court of Appeals has clarified the meaning of this "educational benefit. ” It must be "more than trivial and must be significant” and "meaningful.” Polk v. Central Sus quehanna Intermediate Unit 16, 853 F.2d 171, 1 80 (3rd Ci r. 1988), cert. denied, 488 U.S. 1030 (1989) (Polk); Ridgewood Board of Edu cation v. N.E. , 172 F.3d 238, 247 -48 (3rd Cir. 1999) (Ridgewood). In evaluating whether a f ree, appropriate public education was furnished, an individual inquiry into the student’s potential and educational needs must be made. Ridgewood, supra, 172 F.3d at 247. In providing a student with a FAPE, a school district must provide such related ser vices and supports as are necessary to enable the disabled child to benefit from the educ ation. Rowley, 458 U.S. at 188-89. If an administrative law judge finds t hat a district has not made FAPE available to a student who previously received special educ ation in a timely manner prior t o his enrollment in a nonpublic scho ol, the judge may require the district to reimburse the parents for the cost of that enrollment if the private placement is appropriate. N.J.A.C. 6A:14-2.10. The Supreme Court also held that two fa ctual findings must be made before awarding reimbursement for the co sts of a un ilateral placement: (1) the school district failed to provide a FAPE to the student, and (2) the placement selected by the parents was proper. School Comm ’n of Burl ington v. D ep’t of Educ. of M ass., 471 U.S. 359, 369-70 (1985). Since the Burlington decision, its holding has been adopted by both Congress and the United States Department of Education. 20 U.S.C. §1412(a)(10)(C); 34 C.F.R. 300.403(c) (2005). It is also set forth at N.J.A.C. 6A:14-2.10(b) in that an ALJ may require the d istrict to reimburse the parents for the cost of enrollment if the ALJ finds that the district had not made FAPE available to that student in a ti mely manner prior to that enrollment and that the private placement is appropriate. A placement may be found to be appropriate by an ALJ according to N.J.A.C. 6A:14-6.5 for placements in unapproved schools, even if it does not meet the standards t hat apply to the education provided by the district board of education. Parents who are di ssatisfied with an I EP may seek an a dministrative due - process hearing. 20 U.S.C.A. § 1415(f). The burden of proof is pl aced on the school district. N.J.S.A. 18A:46-1.1. The Board will satisfy the requirement t hat a child with

OAL DKT. NO. EDS 00417-19 15 disabilities receive FAPE by providing persona lized instructio n with suff icient support services to permit that child to benefit educationally from instruction. Hendrick Hudson Cent. Sch. Dist. Bd. of Educ. v. Rowley , 458 U.S. 176, 203, 1 02 S. Ct. 3034, 3049, 73 L. Ed. 2d 690, 710 (1982). To meet its obligation to deliver FAPE, a school district must offer an IEP that is reasonably calculated to e nable a child to make progress appropriate in light of the child's circumstances . Endrew F. v. Douglas Cnty. Sch. Dist., 580 U.S. (2017);137 S.Ct. 988; 197 LEd 2d 335. In Endrew, t he District Court for the District of Colorado initially upheld the school denial of a reimbursement for an out of district placement. However, the Supreme Court reversed finding that an IEP should be appropriately ambitious in light of the child’s circumstances, and “tailored to the unique needs of a particular child.” In Endrew F. v. Douglas County School District RE-1, 137 S. Ct. 988, 1001 (2017), the United State s S upreme Court c onstrued t he FAP E mandat e to require school districts to pro vide “an ed ucational program reason ably calculated to enable a child to make progress a ppropriate in light of the child’s circumst ances.” The Court’s holding in Endrew F. largely mirrored the Thi rd Circuit ’s lon g-established FAPE standard, which requires that school districts provide an ed ucational program that is “reasonably calculated to enable the child to receive meaningful educ ational benefits in light of the student’s intellectual potential and individual abilities.” Dunn v. Downingtown Area Sch. Dist. (In re K.D.), 904 F.3d 248, 254 (3rd Cir. 2018) (quoting Ridley Sch. Dist. v. M.R., 680 F.3d 260, 269 (3rd. Cir. 2012)). In addressing the quantum of educational benefit, the Third Circuit ha s made cle ar tha t more t han a “trivial” or “ de minimis” educational ben efit is required, and th e appropriate standard is whether the IEP provides for “significant learning” and confers “mean ingful benefit” to the child. Endrew F., 137 S. Ct. at 1000–01; T.R. v. Kingwood Twp. Bd. of Educ., 205 F.3d 572, 577 (3d Cir. 2000); Ridgewood Bd. of Educ. v. N.E. ex rel. M.E. , 172 F.3d 238, 247 (3d Cir. 1999), superseded by statute on other grounds as recognized by P.P. v. W . Chester Area Sch. Dist., 585 F.3d 727 (3d Cir. 2009) ; Polk v. Cent. Susquehanna Intermediate Unit 16, 853 F.2d 171, 180, 182 –84 (3d Cir. 198 8). Hence, an appropriate educational program will likely “produce progress, not regre ssion or trivial educational advancement.” Dunn, 904 F.3d at 254 (quoting Ridley, 680 F.3d at 269).

OAL DKT. NO. EDS 00417-19 16 Thus, the first issue is whether the District’s proposed IEP provided FAPE. The testimony o f petitioners’ expert, whom I found credible, as well as B.B. ’s mother demonstrates petitioners’ ar gument that the significant needs of B.B. were not addressed in the prop osed IEP and wou ld not have been met in the pr oposed placement. B.B. had sig nificant issues in the Tewksbury District, which led to his placement at Winston . In addition to academic troubles, B.B. had troubl e relating to other students in the class, trouble focusing and was easily distracted. He was picked on, was unab le to engage in extracurricular activities and sports due to his disability . The IEP failed to provide sp ecific goals and o bjectives on a social, emoti onal and academic level which would provide a significant and meaningful educational benefit to B.B. Moreover, the IEP did not provide any meaningful way to acclimate B.B . to the entirely new school environment, nor did it provide a way to incorporate him into any of the extracurricular activities in any meaningful way. Although the IEP should set forth a statement of the present levels of academic achievement and functional performance, including how the student’s disability affects involvement and prog ress in the general curricu lum (20 U.S.C. §1414(d)(1)(A)(i)(I); N.J.A.C. 6A:14-3.7(e)(1)), there was no such cle ar statement in the proposed IEP. Although there should be a statement of measurable annual acade mic and functi onal goals with short-term objectives or benchmarks and the IEP should describe a program of individually desi gned ins tructional activities and rel ated services neces sary to achieve the stated goals and objectives (20 U.S.C. §1414(d)(1)(A)(i)(II)-(IV); N.J.A.C. 6A:14-3.7(e)(2)-(4)), those were not clear in the proposed IEP. Although the IEP should establish the r ationale for the pupil’s educational placement, the proposed IEP recommended B.B.’s placement in a school that was very large, with no meaningful way to a cclimate him. The majority of the children in the proposed cl ass were not functioning on the level of B.B . and thus, from a soci al aspect integrati on would be difficult if not impossi ble. Accordingly, I conclude that the proposed IEP would provide no meaningful educational benefit and a denial of FAPE.

OAL DKT. NO. EDS 00417-19 17 If a reviewing court finds as I have, that an educational agency failed to provide a student with a FAPE, it is broadly empowered to fashion relief that is appropriat e in light of the purpose of the IDEA. School Comm’n of Burlington v. Dep ’t of Educ. of Mass. , 471 U.S. 359, 369 ( 1985). The right of parents to make u nilateral private placements when they disagree with the educational programs provided to their disable d children is well established. In the Burlington case, the United States Supreme Court held that the IDEA empower s court s to order sch ool authorities t o reimburse parents for their expenditures on private special education for a child if the court ultima tely determines that such placement is proper under the IDEA. Ibid. This was considered to be a val id exercise of courts’ broad powers to ensure that t he purposes of the statute are carried out, i.e., to ensure that all disabled children have access to a FAPE. Ibid. The Court concluded that this would not unduly burden school di stricts. Rather, it merely requires a school district to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP. Id. at 359. Based on the eva luations and reports and based upon the past history of B.B ., I CONCLUDE that the District’s proposed IEP, did not provide B.B. with FAPE. I further CONCLUDE that the IEP was not consistent with the observa tions o f the petitioners’ expert, th e reports from th e Wi nston teachers, the parents’ concerns and the recommendations of petitioners’ experts. Further, I CONCLUDE that the IEP was not reasonably calculated to deliver a measure of progress deemed reason able and beneficial give n the special needs and specifi c requiremen ts of B.B. Therefore, I CONCLUDE that the petitioners me t the standard in sho wing that the District’s proposed IEP failed to provide FAPE. Reimbursement is still depend ent upon the parents estab lishing that the unilateral placement provides the pupil with an appropriate education. Burlington, 471 U.S. at 359; Florence County School District Four v. Carter , 510 U.S. 7, 15 (1993). Regarding the appropriateness of Winston, petitioners’ provided documentary evidence of B.B .’s progre ss a t Winst on, and provided expert testimony that Winston indeed demonstrated the significant academic and social progress B.B. had made at Winston , and specific goals and objectives for his continued progress.

OAL DKT. NO. EDS 00417-19 18 Regarding the legal argument that Winston is unapproved and unaccredit ed, said argument does not go to the app ropriateness of the school, but rather, a judge’s ability to order such a sc hool as a placement. In R.S. and M.S. obo D .S. v. Somerville Bd. of E d., Civil Acti on 10 -4215 (MLC), 2011 WL 32521 , the U.S. D istrict Judge held that despite a s chool being unapproved by the NJDOE, the placement was considered the “stay put” placement under the Court’s “equitable authority” at least initially while not ruling on whether such a placement could be ordered on a prospecti ve basis. In L.M. v. Evesham Bd. of Ed. , 256 F.Supp. 2d 290 (2003), the court ruled that standards applied to the educational decisions of the local school district are not to be applied to unilateral parental placements and that prospective placements could be e ffectuated, “most likely after a due proce ss challenge.” In short, the cases are cons istent that the failure of a school to be state-approved is no justification for denying a student’s access to needed educational services that the district failed to provide, and the parents unilaterally sought. See Nancy Conners v. Richard Mills, Comm. o f Ed., 34 F.Supp. 2d 795, 805 (N.D.N.Y. 1998). Further, the regulations make allowances for unapproved schools by authorizing an administrative law judge to place a chi ld in such a school. N.J.A.C. 6A:14-2.10(b) (citing N.J.A.C. 6A:14-6.5). In New Jersey, such reimbursement is also depende nt on complian ce with N.J.A.C. 6A:14-2.10 entitled, Reimbursement for Unilateral Placement by Parents. The regulation provides in pertinent part: (a) Except as provided in N.J.A.C. 6A:14-6.1(a), the district board of education shall not be required to pa y for the cost of edu cation, includi ng special edu cation and related services, of a student with a d isability if the district made available a free, appropriate public educat ion and the parents elected t o enroll the student in a nonpublic school, an early childhood prog ram, or an approved pr ivate school for students with disabilities. (b) If the parents of a student with a disability, who previously received special education and r elated s ervices from th e district of residence, enroll the student in a nonpublic school, an earl y childhood pro gram, or appro ved private school for students with disabilities without the

OAL DKT. NO. EDS 00417-19 19 consent of or referr al by th e district board of education, an administrative law judge may require the district to reimburse the parents for the cost of that enrollment if the administrative law judge finds that the district had not made a free, appropriate public education a vailable to that student in a timely manne r prior to tha t enrollment an d that the private placement is appropriate. A parental placement may be found to be app ropriate by a court of co mpetent jurisdiction or an administrati ve la w judge according to N.J.A.C. 6A:14-6.5 for placements in unapproved schools, even if it does not meet the standards that apply to the education provided by the district board of education. (c) The pa rents must provide notice to the district board of education of their concerns and their intent to enroll their child in a n onpublic schoo l at public exp ense. The cost of reimbursement described in (b) abov e may be reduc ed or denied: 1. If at the most rec ent IEP mee ting that the parents attended prior to the removal of the student from the pub lic school, the parents did not i nform t he IEP team that they w ere rejecting the IEP proposed by the district; 2. At least 10 business days (including any holidays that occur o n a business day) prior to the removal of th e student from the public school, t he parents did not give written n otice to the d istrict board of education of their concerns or intent to enroll thei r child in a nonpublic school; . . . . 4. Upon a judicial f inding of unreasonableness with respect to a ctions taken by the parents. The District was given proper notice o f the unilater al placement. Moreover, the District was aware that B.B. was at Winston , and failed to propose an IEP until well after the school year had com menced, and finally the pr oposed IEP failed to provide a plan with any meaningful educational benef it and thus, t he proposed IEP denied B.B. FAPE. I CONCLUDE that th e unilateral placement by the parents a t Winston was reasonable.

OAL DKT. NO. EDS 00417-19 20 I therefore FIND as set forth above that due to (1) the f ailure of the District to provide FAPE, (2) the appropriateness of Winston for B.B., and (3) the parents’ notice to the District of their placement and the rejection of the prop osed IEP , that reimbursement must be granted . N.J.A.C. 6A:14-2.10. Applying the notice requirements of N.J.A.C. 6A:14-2.10(c), reimbursement is appropriate from September 2018, and as long as that placement remains appropriate. The District shall develop an IEP consistent with B.B.’s placement at Winston. DECISION AND ORDER For the reasons set forth above, the reimbursement for the unilateral placement and continued placement at Winston is GRANTED. Petitioners’ request for compensatory education is DENIED.

OAL DKT. NO. EDS 00417-19 21 This decision is final pursuant to 20 U.S.C. § 1415( i)(1)(A) and 34 C.F.R. § 300.514 (2019) and is appealable by filing a complaint and bringing a civil actio n either in the Law Division of the Superior Court of New Jersey or in a district court of the United States. 20 U.S.C. § 1415(i)(2); 3 4 C.F.R. § 300 .516 (2019). If the parent or adult student feels that this decision is not being fully imp lemented with respect to program or services, t his concern should be communicated in writing to the Directo r, Office of Special Education Programs. October 31, 2019 DATE SARAH G. CROWLEY, ALJ Date Received at Agency Date Mailed to Parties: SGC/cb

OAL DKT. NO. EDS 00417-19 22 APPENDIX WITNESSES For petitioners: Meghan Brown, Ph.D. L.B. For respondent: Zulejka Baharev, Ph.D. Elaine Nestel EXHIBITS For Joint: J-1 Psychological Evaluation Report, dated November 3, 2014 J-2 Educational Evaluation, dated March 18, 2015 J-3 Authorization for Evaluation, dated July 15, 2015 J-4 Authorization for Release/Exchange of Information, dated July 20, 2015 J-5 Neuropsychological Evaluation, dated July 28, 2015 J-6 North Hunterdon-Voorhees Regional School District Registration Form, dated January 23, 2018 J-7 Invitation for Initial Identification and Evaluation Planning, dated March 9, 2018 J-8 Meeting Attendance Sign-in Sheet, dated April 11, 2018 J-9 Consent for Initial Evaluation, dated May 11, 2018 J-10 Speech and Language Evaluation Report, dated July 26, 2018 J-11 Confidential Report of Reading Assessment, dated July 26, 2018 J-12 Educational Evaluation, dated August 30, 2018 J-13 Letter from Kathleen Wright (Tewksbury Twp.) Responding to Questions Concerning B.B.’s Transition to High School, dated June 2017

OAL DKT. NO. EDS 00417-19 23 J-14 Authorization for Release/Exchange of Information – Voorhees High School Child Study Team for the 2017-18 School Year (8 gr.) (signed) J-15 Letter from North Hunterdon-Voorhees to Parents of 8th Grade Students re: Evening for Parents of Students Eligible for Special Education Who Will be Entering 9th Grade in 2018, dated October 6, 2017 J-16 Invitation for Initial Identification and Evaluation Planning (Tewksbury Twp.), dated March 27, 2018 J-17 Winston Prep School Report Card, Spring 2018 J-18 Clinical Research Feedback Report (Rebecca Neuhaus, Danielle Kahn of Child Mind Institute), dated March 29, 2018 J-19 North Hunterdon-Voorhees Request for Additional Assessment (Speech Language and Read 180), dated July 5, 2018 J-20 Consent for Additional Assessment (signed), dated July 6, 2018 J-21 Request to Release and/or Obtain Pupil Records/Information (signed), dated July 6, 2018 J-22 North Hunterdon-Voorhees Student Invitation to a Transition IEP Meeting, dated August 3, 2018 J-23 North Hunterdon-Voorhees Invitation for Initial Identification and Evaluation Planning, dated August 3, 2018 J-24 Letter, dated August 21, 2018 from Megan Verderammo to Zulie Baharev re: Clerical Error on B.B.’s Consent for Initial Evaluation, dated May 11, 2018 J-25 Invitation for Initial Eligibility Determination and IEP Development, dated August 23, 2018 J-26 Invitation for Initial Eligibility Determination Meeting Confirmation Form (signed), dated August 27, 2018 J-27 Initial Eligibility Determination with IEP Meeting Attendance Sign-In Sheet, dated August 30, 2018 J-28 Initial Eligibility Determination – Eligibility Without IEP Development J-29 Invitation for Initial Eligibility Determination and IEP Development, dated September 5, 2018

OAL DKT. NO. EDS 00417-19 24 J-30 Email Correspondence to/from petitioners to Tarah Santaniello re: B.B.’s Placement J-31 Invitation for Initial Eligibility Determination Meeting Confirmation Form, dated September 11, 2018 J-32 Meeting Attendance Sign-In Sheet, dated September 17, 2018 J-33 Draft IEP, dated September 17, 2018 For petitioners: P-1 Winston Preparatory School Fall Report 2015 P-2 Winston Preparatory School Report Card Fall 2015 P-3 Winston Preparatory School Winter Report 2016 P-4 Winston Preparatory School Final Report 2016 & Report Card (originally marked as P-10 id) P-5 E-mail Correspondence to/from petitioners and Tewksbury Township Board of Education April 2018-June 2018 P-6 Dr. Megan A. Brown’s Report of School Observations, dated October 2, 2018 P-7 Winston Preparatory School Fall Report 2016 (originally marked as P-10 id) P-8 Winston Preparatory School Winter Report 2017 (originally marked a s P- 10 id) P-9 Winston Preparatory School Spring Report 2017 & Report Card (originally marked as P-10 id) P-10 Winston Preparatory School Fall Report 2017 (originally marked as P-10 id) P-11 Winston Preparatory School Winter Report 2018 (orig inally marked as P- 10 id) P-12 Winston Preparatory School Spring Report 2018 & Report Card (originally marked as P-10 id) P-13 – P-26 Not in Evidence P-27 Curriculum Vitae of Dr. Megan Brown P-28 Website Regarding NHV

OAL DKT. NO. EDS 00417-19 25 For respondents: None