Monroe Twp BOE v JA and JA obo JA | Case 04821-20 | 2020-07-16

New Jersey is an Equal Opportunity Employer State of New Jersey OFFICE OF ADMINISTRATIVE LAW DECISION OAL DKT. NO. EDS 04821-20 AGENCY DKT. NO. 2020 31368 MONROE TOWNSHIP BOARD OF EDUCATION, Petitioner, v. J.A. AND J.A. ON BEHALF OF J.A., Respondents. _______________________________ Sanmathi Dev, Esq., for petitioner (Capehart Scatchard, P.A., attorneys) Robert Thurston, Esq. for respondents (Thurston Law Offices, L.L.C., attorneys) Record Closed: July 9, 2020 Decided: July 16, 2020 BEFORE JOSEPH A. ASCIONE, ALJ: STATEMENT OF THE CASE AND PROCEDURAL HISTORY Petitioner Monroe Township Board of Education ( “District” or “Board”) brings this petition to obtain direction from the tribunal as to the necessity of conducting an auditory evoked potential evaluation of the respondent, student J.A., a sixth grade, eleven-year- old student, eligible for special education , based upon her autism diagnosis. The evaluation request originating in February 2020 after fiv e evaluations were conducted

OAL DKT. NO. EDS 04821-20 2 by the District during th at month . None of the evaluations included an auditory evaluation. In p rior years the parents of J.A. , J.A. and J.A. , all respondents, had brought to the attention of the District a diagnosis of audit ory processi ng disorder evaluations privately conducte d. The District accepted some of the data from these evaluations, but rejected the recommendation of the evaluations. J.A. does present with anxiety in loud noise situations. The District is aware of this fact. J.A. is pursuant to medical orders being educated during the school year at home for the most part with some counseling in the District. T he District ’s observations of the student, reflect a personable student with no hearing impediments whic h affect her learning. She performs in the average to a bove average ran ge under the present educational situation. The District maintains the resul ts of the evaluation will have no impact on the educational strategies used for J.A. The parents’ hope the requested e valuation will provide more knowledge and ma y indicate the advisability of the use of an FM system by the student. The student has expressed dislike of the use of earph ones. No identification indicated the student uses hearing aids. Two other due process actions by the parents were filed with the Office of Administrative Law (OAL) in 2017 and 2018, are consolidated as EDS 8588 -17 and EDS 11524 -18, are presently stayed by an interlocutory appeal ; and a stay put order is presently the operable free appropr iate public education (“FAPE”). The New Je rsey De partment of Education, Office of Special Education Programs, transferred the matter to the Office of OAL as a contested case on May 5, 2019. The OAL sch eduled an initial conference for June 4, 2020, respondent counsel requested an adjournment and the conference reschedule d for June 18. Respondent made a motion to preclude evidence sometime after June 13, for petitioner ’s failure to provide evidence pursuant to the fi ve-day rule, interpreting the OAL settlement hearing notice as the actual hearing date. The custom of the OAL is to initially have the parties confer on a settlement conference on the first call date, and thereafter assign the matter to a hearing Administrative Law Judge ( ALJ) in the event set tlement is not e ffectuated. The hearing ALJ then co nduct a pre hearing conference and sets hearing dates. Respondent rejected having a settlement conference and this matter became assigned to the undersigned. The undersigned conducted a pre hearing conference on June 1 6, 2020, and advised respondent’s counsel that his motion to preclude evidence required

OAL DKT. NO. EDS 04821-20 3 appropriate time to submit opposition, so his hearing date had to be adjourned if he did not withdrawn his moti on. Respo ndent refused to withdr aw his mot ion. The undersigned scheduled a hearing date for July 8, 2020 by Zoom and issued a pre - hearing order requiring all submissions to be made b y July 2, 2020. The hearing date occurred on July 8, 2020 . The prehearing order required the parties to submit an y memorandum on July 2, 2020 , both parties submitted m emorandum. On July 8, 2020, the hearing proceeded and the record closed after testimony from three witnesses. FACTUAL DISCUSSION TESTIMONY Gillian Corsi (“Corsi”) Ms. Corsi identi fied herself as a n employee of the District serving as the School Psychologist since 2013, and J.A. ’s case manager. She earned a Bachelor and Masters of Arts in Psychology from Rowan University, and is certified by the St ate of New Jersey as a School Psychologist. The tribunal accepted her as an expert in School Psychology. She confirmed she has no e xpertise in Audiology. She confirmed that no summer extended services are being provided J.A. presently, and prior to Covid 19, J.A. attended individual and group counseling at the middle school child study team offices , but pur suant to the stay put order , placement of J.A. is at home , where services are provided. Corsi has regular interaction with J.A.’s teachers and J.A.’s mom. Corsi describes J.A. a s a sweet, p ersonable, and intelli gent sixth grade student going into seven th grade. Corsi discussed the July 2019 annual review which the parents acc epted. She stressed the desire of the District to bring J.A. back into the school for parti al days. Corsi discussed the Oct ober 24, 2019, I ndividual Education Plan (IEP) resulting from the stay put order of ALJ Kennedy. Corsi describes the 2018 summer planning meeting where new evaluations were planned, as well as the parents req uest for an auditory evaluation. This evalua tion was not considered as there were no historical issue s regarding J.A.’s ability to hear. None

OAL DKT. NO. EDS 04821-20 4 of the teachers expr essed hearing issues. Corsi did not see hearing as a defic iency. Corsi identified J.A.’s educational abilities as average to above average Corsi ag ain c onsulted with the parents and the child s tudy team as to new evaluations in 2020. The parents did not raise issue with the proposed evaluations nor did they object to the proposed evaluations . By agreement speech and occupational therapy counseling sessi ons were terminated. J.A. continued avera ge gro wth in all areas. No auditory issues were presented. Subsequent to the parents’ request for the auditory evoked potential evaluation, the team met to de termine the necessity for the eval uation. Corsi knew of the existing diagnosis of auditory proc essing issues. The observa tions of the student did not support the medical position. The issue with loud noises , the district attempted to address with earphones ; however, the student did not agree to wear them. The determination to deny the evaluation resulted from the observations of the teachers that auditory issues were not a deficien cy of J.A. The district addressed J.A. ’s distraction from lo ud noise s by cond ucting her testing in qui et e nvironments. As stay put was home placement the only school activities were the counselin g done in small groups in quiet environments. The parents were supportive of returning J.A . to a school setting ; however, the parents related experiences were not o bserved in school. Aud itory sub -tests did not reveal hearing deficiencies. John Lee Bersh, Ph.D. (“Bersh”) Dr. Bersh identified h imself as an employee of the District serving as the Supervisor of Special Education. He has worked with the District for approximately thirty-two years and has served as Supervisor sin ce 2009. He earned a Bachelor of Arts from Sp ringfield Col lege, Springfield , Massachusetts, in 1972 , and a Masters of Education in 1973. He earned his Doctorate of Philosophy from Temple Uni versity in 1988 in the area Psychology with a cert ification in Advance Graduate studies. The tribunal accepted him as an expert in Special Education from his experience and in

OAL DKT. NO. EDS 04821-20 5 Psychology. His first employment in the educational arena wa s with the City of Philadelphia for their school system. He has observed J.A. from time to time, he stated she has a good sens e of self. He ident ified the thirty -two evaluations conducted since 2011, ten of which occurred in the last two years. On the requeste d evaluation, he needed to acqu aint himself with the proposed evaluation and from his research discovered the evaluation is done on infants and dogs, who cannot clearly communicate lack of hearing problems. He identified the items he reviewed on the internet; they were not adm itted into evi dence. Dr. Bersh consulted with t he team members, the educational records, and i nput from the staff made the District’s determination to reject approving the test. He directed the District to commence the due process petition , as the student performs well. He could not see what additional educational assistant would be provided by the results of the testing. The teachers work with J.A. one on one and can accommodate to J.A. ’s needs . Due to Covid -19 lock downs in March 2020, all education is remote. Dr. Bersh did not see any efficacy of conducting the evaluation. He did acknowledge the evaluation is conduct not only on infants and dogs, but young children. He did not see J.A. as a young child. The materials refer to a subject with the inability to com municate. He recognized J.A. is diagnosed with autism and central audit ory processing dis order, but disputes it is a report of the central auditory processing disorder. He does not dispute the existence of a central auditory processing disorder, and sees it as a co -morbidity of autism. J.A. has never ha d an issue with standard hearing, only the distraction o f loud noises. The District has never performed an audito ry evaluation and engages outside contractors when necessary to p erform same. J.A. (J.A.’s Mom) Ms. A. identified herself as J.A .’s mom. She stated a typical week involves J.A. watching videos and following along. She claimed to have iss ues with a teacher. J.A. could not follow and described the teacher as, “has no patience.” She became aware of the test from another parent of a n autistic student. The student has a hearing aid. She recognizes it is not a standard test. She represent ed she could not get medical insurance coverage for the exam. She identified the locations she would have to travel

OAL DKT. NO. EDS 04821-20 6 to for the test to be conducted. She t hought the benefit might be the use of an F M system. From the October 24, 2019, IEP ’s speech language evaluation of J.A., the document reflects: J.A. has age appropriate ar ticulation skills. J .A.’s sp eech was clear and intelligible, with no misarticulations present. J.A.’s social communica tion skill are all age appro priate, indicating that J.A. has the skill and knowled ge base to understand social situation s and c an re spond appropriately in differ ent social settings. J.A.’s receptive and exp ressive vocabulary is developmentally appropriate. J.A. has a very good understanding of what words mean and is capable of using vocabulary appropriate. J.A. ’s overall language fundamentals are developmentally appropriate. J.A. is able to follow simple to complex directions appropriate ly, recall information, comprehend spoken paragraphs, create grammatically correct sentences and can understand similarities and differences between words. J.A. received scores that fell within the average range. These results are considered to be a true repre sentation of J.A.’s ability within the classroom regard ing language development, articulation, receptive and expressive vocabulary and social skil ls compared to peers wit hin the same age and grade. FINDINGS OF FACTS Based upon consideration of the testimonial and documentary evidence presented at the hearing, and having had an op portunity to ob serve the witnesses and to assess their credibility, I FIND the following FACTS: 1. J.A.’s date of birth is May 22, 2008 . She is an eleven -year-old, sixth grade, special educa tion student who reside s with pare ntal units in Williamstown, New Jersey within the Monroe Township School District. 2. J.A.’s current pla cement is home bound instruction pursuant to a stay-put order of Administra tive Law Judge J ohn Kennedy, dated September 12,

OAL DKT. NO. EDS 04821-20 7 2019, in consolidated OAL Docket numbers EDS 8588-17 and EDS 11524-18. At the time of the h earing no service s are being provided as the school is not in session due to the summer hiatus. 3. J.A. initia lly found el igible for special education in 2011, has unde rgone numerous e valuations. Specifically, in 2018 and 2020, the District conducted five evaluations of J.A. , in each of those year s. The evaluations included Social, Psycho logical, Educational, Speech/Language, and Occupational Therapy. 4. In 2015 , the parents submitted to the D istrict a private central auditory evaluation. The District reviewed the evaluation, but did not accept its recommendations. 5. The District accepted J.A. as a student in need of special education due to a diagnosis of autism. 6. In August 2017, the parents s ubmitted to the District documents from the Huntington Learning Center, the District considered the materials, partially accepted the evaluative data, but did not accept the recommendations. 7. In December 2017, the parents su bmitted to the District a privat e audiological report, but did not accept the data, diagnosis, or recommendations. 8. J.A.’s fifth grade place ment (2018-2019) included an in-class support for Math, Language Arts, and English. The District offered Speech/Language services and Consultive Occupational Therapy in compliance with stay-put requirements. 9. On August 21, 2018, the par ents provided the D istrict with J.A. ’s primary care physic ian’s recommendation for at home instructio n due to an xiety and central auditory processing disorder.

OAL DKT. NO. EDS 04821-20 8 10. On August 28, 2018, the Dist rict convened a reevaluati on eligibi lity meeting and determined that J.A. was eligible for special education related services under t he category specific learning disabilit y in w ritten expression. In addition , the District recomme nded an in -class resource discharged for J.A. from speech/language and occupational therapy services. 11. On S eptember 21, 2018, the District place d J.A. on home bound instruction through November 8, 2018, based upon the primary care physician’s recommendation. This placement has continued to date. 12. In February 2020, the District determined J.A. eligi ble to spec ial education due to the diagnosis of autism. 13. On February 18, 2020, the parent s, through counsel, requested the District conduct a n auditory evoked potential evaluation , allegedly by an independent evaluator. 14. The District rejected the parents’ evaluation request. 15. Neither p arents nor counsel’s request for the evaluation provided any explanation for the requested evaluation. 16. J.A.’s hearing issues reflect sensitivity to loud noises , not an absence o f hearing ability. 17. The proposed e valuation app ears addressed to deficiencies of the nervous system which may make the ability to hear things compromised. 18. There is no indication from the teacher observations that J.A. is deficient in hearing , understanding or communicating sounds in the form of language.

OAL DKT. NO. EDS 04821-20 9 19. J.A. is performing in the average range of her abilities and in some areas in the above average range. 20. There is no good cause to co nduct the auditory evo ked p otential evaluation. LEGAL ANALYSIS AND CONCLUSIONS The IDEA provides federal funds to assi st participa ting states in educating disabled children. Hendrick Hudson Cent . Sch. Dist. Bd. of Educ. v. R owley, 458 U.S. 176, 179, 102 S. Ct. 3034, 3037, 73 L. Ed. 2d 690, 695 (1982) . One of purposes of the IDEA is “to ensure that all children with disabilities have available to them a [FAP E] that emphasizes special education an d related services designed to meet their unique needs and prepare them for further education, employment, and independent living.” 20 U.S.C.A. § 1400(d)(1)(A). In order to qualify for this financial assistance, New Jersey must effectuate procedures that ensure that all children with disabilities residing in the state have available to them a FAPE consisting o f special education and rela ted services provided in conformity with an IEP. 20 U.S.C. §§ 1401(9), 1412(a) (1). The responsibility to provide a F APE res ts with the local publi c-school district . 20 U .S.C. § 1401(9); N.J.A.C. 6A:14-1.1(d). The district bears the burden of provin g that a FAPE has been offered. N.J.S.A. 18A:46-1.1. The United States Supreme Court has c onstrued the FAPE mandate to require the provision of “per sonalized instructio n with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203, 102 S. Ct. at 3049, 73 L. Ed. 2d at 7 10. New Je rsey follows the federal sta ndard t hat the education offer ed “must be ‘suffici ent to confer some educational benefit’ upon the child.” The Rowley standard the Unite d States Supreme Court recently questio ned in Endrew F. v. Douglas County School District RE-1, 580 U.S. ____ (2017), Ma rch 22, 2017, 15 -287 cert. fro m 10th Circ. Ct. of Appeals, the Supreme Court remand ed the case for further p roceedings consistent with i ts decis ion. The Supreme Court determined that a schoo l district must show a cog ent and res ponsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make

OAL DKT. NO. EDS 04821-20 10 progress appropriate in light of his (the student’s) circumstances. The New Jersey Supreme Court and the U nited Sta tes Court of Appe als for the Third Circui t cases appear to require similar inquiry into the educati onal propos al of the district in compliance with the requirements of Lascari v. Bd. of Educ. of Ramapo Indian Hills Reg’l High Sch. Dist., 116 N.J. 30, 47 (1989) (citing Rowley, 458 U.S. at 200, 102 S. Ct. at 3048, 73 L. Ed. 2d at 708 ). The IDE A does not require tha t a school dis trict “maximize the potential” of the student, Rowley, 458 U.S. at 200, 102 S. Ct. at 3048, 73 L. Ed. 2d at 708, but requires a school distric t to pr ovide a bas ic floor of opportunity. Carlisle Area Sch. v. Scott P. , 62 F.3d 520, 533–34 (3d Cir. 1995). In addressing the quantum of educati onal benefit required, the Third Circuit has made clear that more than a “trivial” or “de minimis ” educatio nal ben efit is req uired, and the appropriate standard is whether the IEP provi des for “significant l earning” and c onfers “meaningful benefit” to the child. T.R. v. Kingwood Twp. Bd. of Educ., 205 F.3d 572, 577 (3d Cir. 2000); Ridgewood Bd. of Educ. v. N.E ., 172 F.3d 238, 247 (3d Cir. 1999); Polk v. Cent. Susquehanna Intermediate Un it 16 , 853 F.2d 171, 1 80, 182 –84 (3d Cir. 1988), cert. den. sub. nom., Cent. Columbia Sch. Dist. v. Polk , 488 U.S. 1030, 109 S. Ct. 838, 102 L. Ed. 2d 970 (1989). In other words , the s chool district must show that the IEP wil l provide the student with “a meaningful educational benefit.” S.H. v. State -Operated Sch. Dist. of Newark, 336 F.3d 260, 271 (3d Cir . 2003) . This determination must be made in light of the individual potential and educational needs of the student. T.R., 205 F.3d at 578; Ridgewood, 172 F.3d at 247 –48. The appropriate ness of an IEP is not determined by a compariso n of the private scho ol and the program proposed by the district. S.H., 336 F.3d at 271. Rather, the pertinent inquiry is whether the IEP off ered a FAPE and the opportunit y for significant lear ning and meani ngful educational benefit within the least restrictive environment. Here the st udent is observed by the Di strict employees to be personable and intelligent. She performs average or above a verage with the education she is being provided. Sh e is distrac tible, as are many students of this age with a diagnosis of autism. Here the student is not in the least re strictive environment, placement of the student is at home pursuant to a stay put o rder issued in 2019. That order is on

OAL DKT. NO. EDS 04821-20 11 interlocutory appeal to the United States District Court for the District of New Jersey. Ideally, this student will be returned to a classroom setting. Her medical direction is for home study because of anxiety while at school. It appears the anxiety is related to loud noises which tend to distract this student . Th is anxiety and sensitivity to noise with autistic children has been observed previously with children with similar diagnoses. The student does not desire to use headphones to reduce the noise sensitivity. The District has ob served sen sitivity to noise, in the form of distraction. However, it sees no educational policy dif ferences it can address based upon the resul ts of the auditory evoked potential evalu ation. Neither party intro duced evidence of use o f hearing aid devices by the student . The mother b ecame aware of the proposed evaluation as a result of an acquaintance whose child has autism. Her hope is that the evaluation could lead to the re commendation of the use of an FM system, this system is de signed for students with hearing impa irments. There is no indication of the student ’s inability to hear, just that loud noises lead to distraction. The proposed evaluation i s also called a brainstem audi tory e voked response test. It allows those with diminished hearing and the inability to identify such diminished hearing to be tested to determine if the sound waves are r esulting in brain activity. It is administered to dogs to determine hea ring loss and to children who are yet unable to communicate wit h professionals to determine the exten t of the hearing loss. The necessity of this test in the present circumstance is c onfounding. Petitioner ’s counsel raised the argument, the re quest is frivolous and do ne in bad faith , related to the existing actions. It is easy to understand such an argument. Respondent argues the District never performed any auditory evaluation. He argues this failure is bad faith. The Distri ct never observed auditory issues but the District and the parents have subjected the stu dent to thirty two eva luations over the past nine years, and has performed them for the most part every two years, not wa iting for the required t ri-annual assessments. This cannot be said to be any ind ifference on the part of the District. Respondent maintains the evaluation is mandated by 34 C.F.R. §300.502(b)(1) ; however, that section refers to a parent’s right to an independent educational

OAL DKT. NO. EDS 04821-20 12 evaluation, at public expense, if the parent disagrees with an evaluation obtained by the public agency. Here the District did not conduct an au ditory evaluation, it had already been provided by the parent. The district did not agree with the re commendations of the evaluations , it did not dispute the diagnosis . This all has to do with the existing actions, and shou ld have been included in that p resentation. To now add a different type of evaluation when the deficiency is know n to th e District and the new evaluation will provide no additional educational data to otherwise alter how the District addresses the education of the student, is an inappropriate expenditure. The regulations provide the scope of assessment : "The child is asses sed in all areas related to the suspected disabil ity, including, if appropriate, health, v ision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities." 34 C.F.R. § 300.304(c)(4). The New Jersey statute adds that the evaluation must be "sufficiently comprehensive to identify all of the child's special education and related services needs, whether or not commonly linked to the suspected eligibility category." N.J.A.C. 6A:14- 2.5(b)(7). This does not appear to require districts to test a hearing disabled student for all possible disabilities, even where t here is no bas is to suspect impairment. See, e.g., P.P. v. West Chester Area Sch. Dist., 585 F.3d 727, 738 -39 (3d Cir. 2009) (applying federal law). ”G.A. v. River Vale Bd. of Educ., 2013 U.S. Dist. LEXIS 133911, *46. Respondent cites L.A. Unified Sch. Dist. v. D.L ., 548 F. Supp. 2d 815 (Cal D.C., 2008) that case supports the District ’s position here. The District has no obligati on to fund the independent evaluation. In A.H. v. Colonial S ch. Dist., 779 Fed. Appx. 90 (3d Cir., 20 19) the Co urt held the school d istrict w as not compelled to conduct an evaluation where its internal observations satisfied the educational needs which would result from the evaluation. The District recognizes an ALJ. may order an independent evaluation when good cause is present. The undersigned has not found good cause in the present request. The issue here is whether the Board’s denial to conduct a brain auditory evoked potential evaluation is unjustified or denies J.A. FAPE.

OAL DKT. NO. EDS 04821-20 13 I CONCLUDE that the Board provided FAPE to J.A. by complying with the stay- put order of ALJ John Kennedy , dated September 12, 2019 , in consolidated OAL Docket numbers EDS 8588-17 and EDS 11524-18. I FURTHER CONCLUD E the Distric t has not acted unreasonably in failing to conduct a brain auditory evoked potential evaluation of J.A. at District expense. I FURTHER CONCLUDE no just cause exists to conduct an auditory evoked potential evaluation of J.A. I FURTHER CONCL UDE respondent’s request for a brain audi tory evoked potential evaluation is unjustified and frivolous. ORDER It is hereby ORDERED that petitioner’s application to deny an auditory evoked potential evalu ation is GRANTED, and petitioner is deemed the pr evailing party in connection with this petition.

OAL DKT. NO. EDS 04821-20 14 This decision i s 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 action 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); 34 C.F.R. § 300.516 (2019). If the parent or adult s tudent feels that this decision is not being fully implemented with respect to program or services, this concern should be communicated in writing to the Directo r, Office of Special Education Policy and Dispute Resolution. July 16, 2020 DATE JOSEPH A. ASCIONE, ALJ Date Received at Agency Date Mailed to Parties: lam

OAL DKT. NO. EDS 04821-20 15 WITNESSES For Petitioner: Gillian Corsi, District employee, School Psychologist and Case Manager John Bersh, Ph.D., District employee, Director of Special Education For Respondent: J.A. mother of JA. LIST OF EXHIBITS JOINT J-1 Petitioner’s Exhibit List J-2 Respondent’s Exhibit List J-3 2020 OT Evaluation J-4 2020 OT Evaluation J-5 2020 OT Evaluation J-6 2020 OT Evaluation J-7 2020 OT Evaluation J-9 2020 OT Evaluation J-10 2/3/20 Notice to Parents J-11 IEE demand 2/17/20 J-12 2/18/20 IEP J-13 2/25/20 IEP J-14 List of Evaluation Reports J-15 Report Cards grades 5 and 6 J-16 Test Result History J-17 Decision December 12, 2019, John Kennedy, ALJ EDS 08577-17, EDS 11524-18, consolidated.

OAL DKT. NO. EDS 04821-20 16 J-18 Petitioner’s opening statement and brief J-19 Respondent’s opening statement and brief PETITIONERS’ P-24 Resume of Gillian Corsi Bates BOE P-9 District’s Annual Review of JA July 11, 2019 Bates BOE 197-232 P-10 Post Kennedy Order IEP Bates BOE 153-196 P-24 Resume of John Lee Bersh, Ph.D. Bates BOE 3903-3910 RESPONDENT’S In joint exhibits