SM and TM obo ZM v Branchburg Twp BOE | Case 03237-19 | 2020-05-27

New Jersey Is an Equal Opportunity Employer State of New Jersey OFFICE OF ADMINISTRATIVE LAW FINAL DECISION OAL DKT. NO. EDS 03237-19 AGENCY DKT. NO. 2019-29355 S.M. AND T.M. ON BEHALF OF Z.M., Petitioners, v. BRANCHBURG TOWNSHIP BOARD OF EDUCATION, Respondent. _________________________________ Lori M. Gaines, Esq. for petitioners (Barger & Gaines, attorneys) Rita F. Barone, Esq., for respondent (Purcell Mulcahy Flanagan, attorneys) Record Closed: May 8, 2020 Decided: May 27, 2020 BEFORE TAMA B. HUGHES, ALJ: STATEMENT OF THE CASE In accordance with the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415, S.M. and T.M. (collectively “petitioners”) have requested a due process hearing on behalf of their son, Z.M., who is classified as eligible for special education and related services. Petitioners contend that t he Branchburg Board of Education (the “Board ” or District”), failed to offer their son an Individualized Education

OAL DKT. NO. EDS 03237-19 2 Program (IEP) t hat delivered a Free and Appropriate Public Education (FAPE) for the 2018/2019 and 2019/2020 school year . Petitioners unilaterally placed Z.M. at Somerset Hills Learning Institute (SHLI) and seek continued placement at SHLI, reimbursement for their expenses including but not limited to tuit ion, transportation costs and attorney’s fees.1 PROCEDURAL HISTORY The request for due process was received by the Office of Spe cial Education Programs (OSEP) on February 4, 2019 . The matter was transmitted to the Office of Administrative Law (OAL) w here it was filed as a contested case on March 7, 2019 , pursuant to N.J.S.A. 52:14B-1 to 15; N.J.S.A. 52:14F-1 to 13. Hearing dates in th is matter took place on July 10, 2019, September 11, 2019, September 27, 2019 , January 14, 2020 , and April 20, 202 0. Closing briefs were submitted on March 31, 2020 , with supplemental bri efing received on May 8, 2020 , at which time the record closed. FACTUAL DISCUSSION AND FINDINGS OF FACT Testimony: Alison Elizabeth Eby (Eby), the D istrict’s Board-Certified Behavior A nalyst (BCBA), testified that she gr aduated from the University of California with a degree in Psychology. Thereafter she received her Master’s from the University of Washington in Special Education with an emphasis in Applied Behavior Analysis (ABA). Thereafter, in September 2013, she received her BCBA. (R -45.) Eby was qualified as an expert in the area of Behavior Analysis and Educational Programming for students with Autism Spectrum Disorder (ASD). 1 While the relief requested in the Petition for Due Process and Amended Petition for Due Process sought Compensatory Edu cation (Relief Requested, Paragraph 12), petitioners have indicated t hey are not seeking Compensatory Education.

OAL DKT. NO. EDS 03237-19 3 She has experience in performing Functional Behavior Assessments (FBA) since 2010 as an undergraduate. Eby described an FBA as a process that identifies: specific target behavior; the purpose of the behavior; and what factors maintain the beh avior that is interfering with the student's educationa l prog ress. Thereafter, a Behavio ral Intervention Plan (BIP) is developed. Eby stated that she has extensive experience in data collection and overseeing or monitoring program books. If she works with a general education teacher, she has a different type of data system than she would if she were working with Z.M. , who would have a full-time registered behavior technician (RBT). A n RBT is overseen by a BCBA and are required to have forty hours of specified c ourse work and pass a competency exam. In h er current po sition and prior pos itions, she has provided training and oversight of RBTs. According to Eby, there are specific assessments that are administered to autistic children, some of which are standardized, others are not. Some of the non - standardized assessments are used to show developmental progress. One such test is the Verbal Behavior Milestones Assessment and Placement Program (VB -MAPP). Another test is the Assessment of Basic Languag e and Learning Skills - Revised (ABLLS-R). These tests ass ess th e s tudent on all o f the skills that a typically developing student should have by the age of three or by age five. The tests are helpful in targeting what interventions would be beneficial f or a student and thereafte r a program can be created in the areas of need. They are also helpful in developing goals and objectives in an IEP. Her first interaction with Z.M. was in June 2018 , when she observed him at the SHLI. (J-17.) Pr ior to this visit, sh e reviewed the Mar ch 2018 , report by petitioner’s consultant, Dr. Hannah Hoch, BCBA ( Dr. Hoch) who had observed and prepared a report of her observation of Z.M. six months prior.

OAL DKT. NO. EDS 03237-19 4 At the time she (Eby) observed, Z.M., he was a couple of months shy of turning three-years-old. She and he r co lleague, Heather Lilly (Lilly) were at the school for approximately three hours. While there, she observed that Z.M. was quite compliant with programming and that his verbal skills were average overall. She did note some social pragmatic skills defici ts such as ey e c ontact o r appropriate responses to questions asked. There were a few episodes of non -compliance such as pushing things away or refusing to go outside. When this occurred, she saw how Z.M.’s teachers han dled the situation by r edirecting Z.M. S he did n ot observe nor did his teacher indicate, that Z.M. exhibited aggressive behavior Circle time took place during the observation. Since a number of students were out that day, Z.M. was in circle time by hims elf and did nicely. According to his teacher, when other students are present, he requires prompting to participate effectively. During circle time, Z.M. was very interactive with them – continuously turning around and smiling. When he made some thing, he would show it t o them. The only social interaction that they witnessed with another child was when Z.M. interacted with his sister at snack time and on the playground. Eby noted that this was one of the deficits with the school - the lack of peers that were g ood models for him. The only peer with whom he interacted with was his sister who was also on the autism spectrum , were the other children in the classroom who also displayed social and behavioral deficits. Elopement was a concern raised by Dr. Hoch and the petitioners; however, she did not observe this behavior during her visit. SHLI had been teaching Z.M. a “waiting” program. When told to “wait”, he would stay still. The District would have done a similar program and would have also attempted to e xtend it into the home environment. It was Eby’s impression that the overall program at the SHLI was effective for Z.M. in redirecting his behaviors. The District addressed this concern in the IEP and would have attempted to model their program similarly without any major changes. Eby went back t o the SHLI on June 11, 2019 , to observe him in his morning session. One of the things that Dr. Hoch and Z.M.’s teachers at the SHLI found was that Z.M. had a number of deficits when it came to generalization of skills in mu ltiple

OAL DKT. NO. EDS 03237-19 5 settings. During her observation on this date, she noted that with staff members whom he was more familiar with, he had better social skills, used complete sentences and made eye contact. With other staff members wh om he was not as f amiliar with, he did not continuously display the same skills. While she saw a BCBA in the classroom, she was not working with Z.M., rather observing him and giving feedback to the instructor who was working with him. She did not hav e the opportunity to review Z.M.’ s SHLI school records prior to her June 2018 , observation or before the July 2018 , IEP was drafted because the records were not received until the day prior to the July 19, 2018 , IEP meeting. (P-52.) The reco rds were voluminous, and she started going through Z.M .’s program binder while in the meeting. In going through the records, she noted that the teachers at SHLI were working on targets or in phases with Z.M. – the skill sets broken down into components. As Z.M. progressed in a skill or activity, the suppor ts would slowly be withdrawn, and the targets would then change to a new one. In comparing SHLI’s program to goals and objectives found in an IEP, she stated that the objective in an IEP is where you want the child to be at year end. For a student with ASD, you start at an easier level and work up slowly. Goals are broken down into smaller pieces and then the small pieces are measured along the way to ensure that adequate progress is made towards the goals. In Z .M.’s IEP, the Child Study Team (CST) tried to i dentify his areas of need based on his current level of functioning. It was the District’s intention to continue with some of the targets identified by SHLI’s as they appeared to be meaningful to Z.M. The results of the evaluations (Social H istory; Speec h/Language Evaluation; Occupational Therapy (OT) Evaluation; Battelle Developmental Inventory (Battelle)), were also integrated into the IEP as were the recommendations by Dr. Hoch. (P-7, J-11, J-12, J- 13, and J-14.)

OAL DKT. NO. EDS 03237-19 6 Regarding Dr. Hoch’s recommendat ions, other than the full time BCBA, most of the recommendations were addressed in the IEP. A full time BCBA was not included because of the staff qualifications at the school. The classroom whe re Z.M. would b e placed would have an RBT with him throughou t the day as well as a cer tified special education teacher who had completed the BCBA course work and supervised hours but had not passed the BCBA test. In discussing the recommended program in Z.M.’s IEP, Eby stated that the CST initially recommended a split program. In the mo rning Z.M. would be in the preschool disabled classroom. In the afternoon, he would be in an inclusion classroom. (J-22.) The same teacher would be with Z.M. throughout th e day as well a s the same RBT. The RBT would have a t hirty-minute break when Z.M. went to lunch. At lunch and recess, he would not be alone as other children also attended the full day program and another RBT or a qualified aid would be present. If Z. M. was schedule d to recei ve group instruction durin g e ither se gment, he would most likely be pulled out and provided individual instruction on specific programming. In the inclusion class, he would work on specific skills and have a staff member assigned to him. At the time of Dr. Hoch’s observation, there were eleven students in the inclusion classroom – seven were general education students and four were special education students. There was also a teacher and two aids. If Z.M. had attended, an additional staff m ember – an RBT, would have been add ed in the inclusion classroom to assist him. In discussing the merits of an inclusion classroom, Eby stated that one of the biggest benefits of an inclusion class would have been Z.M.’s ability to work w ith typically d eveloping peers. According to Eby , p eer models are effective i n teaching young students social pragmatic skills. Given the fact that preschoolers are incredibly forgiving of social transgressions, it was a good time to begin the integratio n process with Z.M. in a controlled environment. The goal b eing g eneralization of the skills to peers which he was unable to do at SHLI. She acknowledged that there were readiness criteria that needed to be present before a student could truly benefit from an

OAL DKT. NO. EDS 03237-19 7 inclusion class, but she felt that Z.M. met the criteria a nd would benefit. He did not have a high level of interfering or disruptive behavior; he did not have such high communication delays that he would not have been able to understand langua ge or speak in a way that he coul d interact with typical p eers; and h is cognitive skills were average. According to Eby, Z.M. would initially be pulled aside to see what his areas of strength were. The inclusion would start with snack time with his peers and then he would be integrated into the play centers. Some of the IEP goals would be worked o n through the social play. Thereafter, they would slowly see how he did in small groups and if that was successful expand him into larger groups. He wouldn’t start out in every activity. The afternoon would also h ave included either a discrete trial or i ndividualized ABA instruction that was not a discrete trial or both. Eby went on to note that in Dr. Hoch’s report, among her list of recommendations , was the transitioning of Z.M. into a less restrictive environment. (P-7.) While the number i s fluid, at the time of Dr. Hoch’s observation, contrary to her (Dr. Hoch’s) report, there were eight students in the special education classroom and three staff members. Had Z. M. attended th e school, an additional staff member – an RBT, would have been a dded to accommodate Z.M.’s needs such as prompting him in group instruction. In discussing group instruction, Eby stated that Z.M. would initially start with individual instruc tion until pro gress was made and then he would slowly be introduced into group instruction with one student at a time if possible. Z.M. would also receive a full day of Applied Behavior Analysis (ABA) programming with parts of it being a discrete trial type of progr amming. He would receive prompting and mod eling and there would be data collection on specific goals and targets that he was working on. Specific teaching procedures would be used to teach the targets. The IEP also recommended related ser vices such a s speech/language services and OT services. Group speech therapy was twice per six -day cycle and individual

OAL DKT. NO. EDS 03237-19 8 speech therapy was once per six -day cycle. They would occur either in a pull out setting or in the classroom. Unli ke SHLI, the District had on staff s peech and language pathologist, occupational therapist to facilitate these services. Additionally, Z.M.’s RBT would be with him regardless of where the services were provided. Data from the various targets would be colle cted by whoever was working wi th Z.M. at the time. If it was the related service provider, he/she would collect the data. If it was the RBA or teacher, they would be recording the data. The data is typically recorded on a clipboard. Whoe ver was working with him would have the clipb oard - so at all tim es the data would be collected. Every time a program is run – which is daily, data is collected. Thereafter, the information would get graphed. According to Eby, goals and objectives in te rms of progress are derived from the data col lection on the targets. During her observation at SHLI, she did not see any data collection. Apparently, it is the school’s procedure to take data once maybe twice a week - not every time a program is run or even on a daily bas is. Eby went on to stat e that it is importa nt to gather as mu ch data as possible. If you are only taking data once or twice a week, it may be weeks before you realize that a student is not making progress on a program. In a ddition to the other services, the IEP also recommende d behavioral support by a BCBA three h ours a week. In describing how she had initially envisioned the support occurring, Eby stated that she would be in consultation with Z.M.’s teacher and the RBT. She would not h ave direct cont act with Z.M. only with his teacher and the RBT would. The BC BA’s job is to supervise and coach the teacher and the RBT in the programs. However, that did not preclude additional services if needed. Eby went on to state that individual consultation was specifically added in t he revised IEP. ( J-65.) Over the course of a year, she may work directly with five students. No FBA was done on Z.M. as the extent of his behavior at the time did not require one. SHLI had b ehavioral supports in plac e a nd the District woul d have mirrored it and put similar supports in their BIP. Among the tar get behaviors were non- compliance and pushing away tasks. Strategies that the District would have us ed in

OAL DKT. NO. EDS 03237-19 9 their BIP would have include d preventing a problem beh avior from occurring; teaching Z.M. new skills tha t he could u se instead of the problem behavio r; and staff reaction/handling the behavior such as redirection. Additional strategies such as positive reinforcem ent when he was com pliant would have also bee n u sed. A n example of this would have been the us e of a token board where Z.M. would receive tokens for positive behavior that could be exchanged for a reward. In discussing the Battelle conducted by Early Interventi on (EI), Eby stated that Z.M. was found to have weaknesses in his adaptive skills and personal social skills. (J- 13.) As part of the IEP, petitioners were also offered parent training. The goal of parent training was to work on generalizing the skills that were taught in schoo l into the home environment. Also discussed was how to transition Z.M. from his EI program that he had at Somerset Hills into the school. (J-22.) According to Eby, after t he IEP meeting in July 2018, the petitioners asked to observe a se lf-contained classroom which they did along with Dr. Hoch in October 2018. After the observation, Dr. Hoch generated a consultation report of her observation of Z.M. at SHLI which was sent to the Distr ict. (P-31.) Prior to that no feedback h ad been provided regarding the proposed IEP and Z.M. did not att end the 2018/2019 school year in the District. In review of Dr. Hoch’s report, it appeared that she had observed Z. M. at SHLI in September 2018, and that he had made significant progress s ince her last observation in January 2018. There were segments of his day that he did not have a one-on-one staff – rather shared staff. This implied that he was showing grow th in his abili ty to follow directions and work in groups. Eby stated tha t she had personally observed how far Z.M. had progressed in this reg ard when she went to SHLI to cond uct her observation. During that observation, Z.M. was participating in group for tw enty minutes. According to Eby, in the Dis trict, Z.M. would have bee n taught how to work in a group such as he’s following directions or attending when other children were present.

OAL DKT. NO. EDS 03237-19 10 The time in group would have been gradually built up. It wou ld have been similar to the SHLI program with the excepti on being in District, Z.M. would have been with ty pical peers. In going back to Dr. H och’s report, Eby noted that there we re several inaccuracies in her reporting. One such inaccuracy w as her reporting of the student to teacher ratio in the inclusion classroom. Another inaccu racy was t he report of a child running around on the playground on his own. The child in question w as playing tag with other children for the duration of recess an d was also cont inuously being shadowed by an aid. Eby also noted that Dr. Hoch was distract ed during her observation when she visited the school – continuously taking phone calls which may be the reason her report contained inaccuracies. Another inaccur acy was the rep ort that SHLI collects data daily. This finding was not supported by the data documentation provided by SHLI. (P-52.) Aside from Dr. Hoch’s r eport, no additional informatio n was received prior to the issuance of a revised IEP in January 2019. (J-34.) The proposed changes were itemized and highlighted on a separate sheet. The changes took into consideration the SHLI progress reports received the day before the July 2018 , IEP meeting and Dr. Hoch’s report. In t he revised IEP, several of the goals were edited and more clarification and deta il were added surrounding the services. An example of this was the provision of more detail on the ABA ins truction – specifically amount and frequency. Also added or clarified in the IEP , was weekly data overview by a BCBA. Eby went on to state that the p roposed changes were not j ust for staff consultation – she would also work with Z.M. personally. She is familiar with t he Applied Behavior Analysis Treatment of ASD - Practice Guidelines for Healthcare funders and Managers (Guidel ines) which outlines recommended BC BA ov ersight based upo n the number of hours of programming. According to Eby, the G uidelines were created for health car e funders a nd m angers. (P-47.) She went on to state that many ABA services were currently pro vided through health insur ance pro viders who were learni ng how to fu nd the ABA services. To

OAL DKT. NO. EDS 03237-19 11 educate the health care pr oviders, the Guidelines were created to as sist them i n understanding what ABA services should look like. The model provided was for home- based services - so in that model, for every ten hours of RBT, it was recommended that there be two ho urs of BCBA ove rsight. There is no teacher involved in th at model just the RBT and the BCBA. In the school’s program, there would have been an RBT, a teacher and the BCBA. Additionally, the teacher in question was highly qualified in ABA and would have been able to pr ovide full tim e support for Z.M. in additio n to her th ree hours of support. The revised IEP, based upon Dr. Hoch’s recommendation, also reduced the amount of time that Z.M. would be in the in clusion room from a half to a quarter of the day. The District felt that it was important for him to ha ve a certain level of exposure as that is where he would learn best - those group skills, play skills and social prag matic skills that he had deficits in. Z.M. would have been with the general education peers for snack, play based instruction, small group math, science/story lab. Also offered as related services was additional parent training from two to eight hours monthly. SHLI wa s currently providing e ight h ours and the District was attempting to ma tch the hours. The transition statement was also updated to address the regression concerns raised by Dr. Hoch. In this regard, the Distri ct was willing to work with SHLI on whatever recommendations they may have as it related to trans ition services. In March 2019, as pa rt of the Due Process Mediati on, she was asked to observe Z.M. at SHLI and perform a data review of his pr ogram. On three occasions in March 2019, s he and Lilly went for observatio ns at SHLI for a total of five and a half hours. Thereafter, an observatio n report was generated. (R-54.) During this time Z.M. received one-on-one instruction for four hours, he wa s in a dyad – paired with another student for instruction, for forty-five minutes and was at lunch for forty-five minutes. It was her impression t hat Z.M. had made significant progress in his ability to work in a group since September. H e also progressed on certain programs such as toilet training, waiting and followin g directions. She also observed quite a bit of large group

OAL DKT. NO. EDS 03237-19 12 instruction in which he was doing quite well. Th is confirmed her belief that Z.M. would have benefitted from group instruction in the District. Eby we nt on to state that o ne o f the things th at was of co ncern i n her observation of Z.M. was the fact that he was the only pr eschool aged student in the classroom. This was concerning because a preschooler works on di fferent skills t han school aged children. Additionally, the student that Z.M. was paired with was also on the autis m spectrum and had a number of language and soc ial pragmatic deficits as well as difficulty with making eye contact. Several times during t he observation period, the teacher had to prompt one or both of the children to lo ok at each o ther. Z.M.’s partner also had a speech impairment and was difficult to understand. As a result, he was not a good verbal role model for Z.M. Three of the stude nts in the class displayed disruptive behavior to the po int that some of the child ren had to b e removed from the class by the supervisor. When this occurred, the classroom was left without a supervisor for a period of time. On the subject of the classro om supervisor , Eby noted that the super visor at SHLI, while having completed all of the course work and supervised hours to become a BCBA, had not yet taken the test. As such, she had the same level of qualification as the teacher in the District for the 2018/2019 academic year. Additionally, the supervisor at SHLI throughout the entire observation period spent a t otal of forty-four minutes with Z.M., the rest of the time, she worked with staff membe rs. She did not know what credentials if any the staff members held. A BCBA was present in the class room for a total of eight minutes over the co urse of her three-day observation, however, later conceded that none of her observations allowed h er to obser ve what occurred during the entire school day. Eby went on to testify that the last IEP offered to Z. M. was in July 2019. (J-65.) It was very similar to the ones p reviously presented to the petitioners. The new IEP called for ESY , however, the petitioners instead sent Z.M. to SHLI inclusion preschool camp – their rationale being the concern that he would be st igmatized by his pee rs. According to Eby based upon her experi ence this is not typically a problem with three-

OAL DKT. NO. EDS 03237-19 13 year-olds. Another ch ange in the IEP was the increase in BCBA support from three hours weekly to six hours weekly. This was done because the teacher in the class was not going to be the same as the one prev iously offered. The teacher ha d received training in ABA and would continue to receive ongoing training but had not done all of the course work. As such, the BCBA hours were i ncreased to make sure that Z.M. was supervised in h is program. If more time was required, it would have been provided. Parent counselling/training remained the same. The transition section was amended to allow for tran sition over the extended school yea r program, with Z.M. sp ending more time in the Dist rict program an d having staff from both programs present during the transition period. The goals and objectives were also amended to reflect Z.M.’s progress and what he had already mastered. Z.M.’s pro gress was ident ified ba sed upon his rec ent progress reports from SHLI and her data review in March 2019 when she observe d him at SHLI. Z.M.’s partic ipation in the i nclusion class remained at a quarter of the day wherein there would be a slow transition into group sessions. Eby went on to t estify th at all of the p roposed IEP s offered Z.M. FAPE in the least restrictive e nvironment. Since the initia l evaluatio ns, Z.M. was deemed to be a student in need of a full time ABA program who would also benefit f rom time spent with typical peers. SHLI did not offer such a program. The District offered a comprehensive ABA placement which would allow Z.M. to flourish and provide him the opportunity to be with typical peers in the least restrictive environment. A s Z.M. progressed so to would the prog ram as it would evolve with him as his needs changed. Unlike SHLI who utilized token rewards as part of their AB A program, the District’s program would have included Pivotal Response Training (PRT). Due to the Distr ict’s preschool c urriculum having a signif icant amount of time dedicated to structured play, the staff would have embedded a lot of instruction into tha t play. Th is wo uld have been in a group or individualized. Other types of ABA methodology would also include s uch things as discrete trial instruction, specific prompting procedures and reinforcement procedures. Peer mediate d interventions and self-management intervention would have also been

OAL DKT. NO. EDS 03237-19 14 used. It was Eby’s belief that the District offered more opportunitie s t o prov ide generalization of skills because there were more students for Z.M. to work with. On cross -examination, Eby was questioned about her respons ibilities. In response she stated that among other things, she performs FBA’s, data assessments, staff train ing and consultation throu ghout the Di strict. There are approximately forty teachers and eighteen aids in the District that she works w ith at vari ous p oints throughout the school year. In addition to the above, over the c ourse of the past year she had been involved in approximately thirty IEP meetings but consulted in only about twenty of them. She acknowledged that in the 2018/2019 s chool year, she was not at the Whiton Elementary School on a daily basis , however, stated that she worked very clo sely with the CST and the case manager who i s there full time with the student s. According to Eby, while the sig n in sheet for the school ide ntified her as signing in only five times in September 2018, she was there significantly mo re times as the sign -in system had not yet been fully developed. (J-38.) In going through the sign in sheet for October through November 2018, she agreed that at t imes she was at the school once or twice a week and on some of those visits, she was not there to modify programs or train staff. When questioned about the classroom teacher, Eby acquiesced that the teacher in the inclusion classroom while having all o f the requisite coursework and training, had failed the BCBA test twice. She also agreed that only a BC BA or a BCBA D can supervise an ABA program and that the classroom teacher was neither of them. In going through her first observation of Z.M. at SHLI, Eby agreed that during her observation, a BCBA was overseeing the c lassroom and that there w as also a B CBAD in the classroom. Also presen t in the cla ssroom were five students and five staff members in addition to the B CBA and BCBAD. The school had thir ty students and five BCBA’s which was a six to one ratio , however, as Eby noted later, that did not mean that there was always a BCBA present and supervising in a classroom.

OAL DKT. NO. EDS 03237-19 15 When questioned about how many staff member s she oversaw as opposed to the rat io’s at SHLI, Eby agreed that numerically, there was a s ignificant discrepancy , however, the compa risons wer e not the same. Thi s wa s because the Distri ct had a different profile than SHLI - more specifically, the student s within the District had fewer academic and/or behavioral needs than a student who is placed out of District. Eby was a lso asked about the recommended caseload range in t he Guidelines for a BCBA supervising comprehensive autism program - six to twelve students to one BCBA. (P-47, Page 35.) More specifically, she was asked abou t her email to the Director of Special S ervices, wherein she com mented on why she felt that three hours of supervision sufficed and that anything less would be harder to “defend ” as a “quality Comprehensive ABA program”. (J-18.) In answer, Eby stated that she did believe tha t what had been put forward was a Comprehensive ABA program for a school program given the high level of ABA supervision. She went on to reiterate that the program in the Guidelines was not a school-based program. When questione d further about the level of supervision that was recommended in the July 2018, IEP, she agreed that she would not have provided the same amount of direct supervision recommended i n the Guidelines which was thirty to forty hours/week of one-to-one direct treatment. However, she would have if Z.M. required it. Regarding the recommended caseload, while she supervised twenty to thirty other students over the course of the year – her supervision occurred at different ti mes and n one of the students had a Comprehensive ABA program as prescribed for Z.M. Eby acknowledged that p rior to the I EP meet ing in July 2018, the re was discussion about the proposed programming and also a draft IEP had been prepared based upon their discussions. (J-51.) However, the District w ould have welcomed feedback from the par ents and considered anythi ng that they put forward. She agreed that the IEP was not explicit on how much ABA instruction would have been provided or if there would be BC BA consultation, however, this was clarified in the next IEP. (J-22, J-59, and J-65.)

OAL DKT. NO. EDS 03237-19 16 In discussing the July 2 018, wherein i t was p roposed that Z. M. attend the inclusion class for half the day, Eby was asked about t he basis for that recommendation. In response, she stated that in looking at his evaluations, his deficits were primarily social skills. It was thei r belief that h e would have benefitte d from an inclusion segment in his day. She herself had not performe d any assessments nor had she interv iewed the petitioners. The only thing th at she did was conduct her initial observation and ask questions of Z.M.’s teachers at SHLI. ( J-17.) Z.M.’s other assessments were still being conducted by the District, so it w as unknown at the time what the reco mmendations were going to be. While the teachers at SHLI were asked to fill out the teacher input form, they did not and instead sent Z.M.’s progress notes. Eby was also questioned about the verbiage in the IEP as i t related to the benefits of placing Z.M. in the general education classroom. She responded by stating that placing Z.M. in a class wit h typically developing peers would provide him with good role models and would be better partners for him in social inte ractions. She acknowledged that on the Battelle, which was o ne of the things relied upon by the District, Z.M.’s scores on peer interaction skills were very low. She went on to state that this was not the case when she observed him at SHLI when he intera cted with his sister. Eby was also asked why the District believed that it would be beneficial to Z.M., who according to the B attelle had no awa reness o f his peers, to b e placed in an inclusion class. In response she stated that he would have been slowly introduced into the small group instruction and that he would ha ve benefitted from his peers as they do not need as much promp ting. She noted t hat this was a lso discussed with the petitioners at the IEP meeting. When shown the scheduli ng for the 2018 /2019 school year, she ac knowledged that the schedule did not call for o ne-on-one instruction and most of the activities involved group instruction , however, it was a gene ral schedule outlining the timetable for activities - it was not individualized for Z.M. (J-41.) She also acknowledged that the IEP did not specifically call for one-on-one instruction, however, later on in her testimony, after refreshing her recollection, she revised that statement.

OAL DKT. NO. EDS 03237-19 17 When challenged about her testimony that the Distri ct had ad dressed all of Dr. Hoch’s concerns with the exception of having a B CBA on site daily, she sta ted that she believed that the District did a ddress all of the c oncerns. Upon further questioning, she agreed that Dr. Hoch’s biggest con cern revolved ar ound Z.M. ’s placement in an inclusion cl ass a nd that the District did not ta ke Dr. Hoch’s recommendati on in that regard. Nor did the District soli cit SHLI opinion on the ap propriateness of the placement. Eby went on to point out that one of Dr. Hoch’s r ecommendations in her original report was for Z.M. to be transition ed into a less restrictive environment when deemed ready. According to Eby, ther e were a couple of schools of thoughts surrounding the level of skills necessary be fore a student could be i ntroduced into an inclusive environment. Based upon current research, it was her belief that students can benefit from inclusion early on – even before they show some of the prerequisite skills and that they can gain the skills in question sometimes faste r in an inclusi on environment when there’s a typical peer to practice with. (R- 56 and R-58.) SHLI does not have the ability to offer peer mediated instruction. In showing Eby a December 17, 2018, email from Douglas Haan and questioned who he was, she stated that due to his years of experience in special education and case management, he was br ought in to consult with the CST when the second IEP was being developed . (J-33.) The email was captioned “Litigation 101”. According to Eby, there was a caricature attached to the email. Regarding the ESY offered by the Di strict, Eby stated that th e summer program was five times a week for three hundr ed and sixty minutes a day which was less than a school day during the academic year. She was aware that the SHLI summer program hours remained the same as the academic year a nd that Dr. Hoch had recom mended the same level of programming during the summer months. Heather Lilly (Lilly), a Learning Consultant and Case Manager for the District for the last four years, testified that she holds an e lementary certification (K – 5) and has a Learning Disabi lity Consultant Certification. Prior to working in t he District, she was a gener al e ducation teacher in the Montgomery Township School District for

OAL DKT. NO. EDS 03237-19 18 fourteen years - nine of which was in an inclusion classroom along with a special education teacher. (J-53.) Over the years she has worked extensively with children on the auti sm s pectrum. S he was qualified as an expert in the area of case m anaging students with disabilities including students on the autism spectrum. In 2018/2019 school year, her caseload included working with thirty -nine students - five of which were in either the p re-school disabilities classroom or the integrated preschool classroom. In descri bing the EI Program, Lilly stated that it was a State program th at is provided to children before the age of three who are developmentally delayed (physi cal; cognitive; communication; social or emotiona l; and adaptive). The District receives referrals from the State through the EI System. Once a referral is received, a transition planning conference meeting is set up four months prior to the child’s third birthday. She is one of the District’s representatives who meets wit h the parents an d the EI Coordinator to gather information about the student such as what programs they had already received and their progress. Three m onths prior to the child’s third birthday, an Identification Planning Meeting is held at the school at which time the student is brought in alon g with the parents to dete rmine if t he District should do their own individual testing. Z.M. went through EI and had participated in Developmental Intervention by the time the Identification Planning Meeting was held in May 2018. According to Lilly, at the time of the meeting, th e District, was unaware of that Z.M. had b een attending SHLI’s Pilot Program since October 2017. No transitional planning meeting was held prior to the Identifica tion Planning Meeting because the District had be en informed that the parents were already aw are of it s programs having already had ano ther child go through the EI Program. According to Lilly, EI conducts testing once a y ear to monitor progr ess. Z.M.’s initial testing was done when he was nine -months-old at which time the Battelle – an assessment which addresses the five areas of dev elopmental weakness, was

OAL DKT. NO. EDS 03237-19 19 performed. He was reevaluated a year later, and the District was provided a copy of both of the assessments. (J -1, and J-4.) At the time of the meeting it was determined that EI would com plete the exit Battelle and the sc ores wou ld also be sent to th e District. (J-13.) In discussing the first Bat telle assessment which was done when Z.M. was nine months old, Lilly stated that the assessment was based primarily upon the parent’s input. The second assessment which was d one a yea r later provided a co mparison between the first and second assessment as did the third. (J-4 and J-13.) Based upon the results of the assessments, Z.M. was classified as preschool disabled. In looking at his scores year over year, there was a notable decrease in the adapti ve domain; slight decreases in personal/social doma in and motor domain and an increase i n the communication domain. The cognit ive domain remained constant in the average range. According to Lilly, due to the weaknesses th at were n oted, additional testing in speech/language and motor were conducted as well as classroom observations. A social history was also obtained to get a better overall picture of Z.M. and see if he had met developmental milestones or whether there were other areas that were challenging for him. Th e social history also outlined pe titioner’s concerns for Z.M. some of which were later incorporated into the IEP with goals developed to address them. (J-11.) No preschool c ognitive assessment w ere done becaus e he fel l within the average r ange and this domain did not appear to be an area of weakness. In review of the OT Evaluation that was co nducted, certain areas of weakness were noted. (J-12.) Z.M. scored in the fifth percentile for loc omotion, object manipulation a nd grasping. Based upon these f indings, goals and related services were put into the proposed IEP to address the areas of weak ness. According to Lilly, the District has a full-time occupational therapist a nd b rings in a physical therapist if needed.

OAL DKT. NO. EDS 03237-19 20 The Sp eech and Language Evaluat ion found that Z.M.’s “receptives” – how much language he was taking in and understanding, was within the average range at fifty-five percentile of nationally normed peers the same age. (J-14.) His expressive language was slightly lower but still within the average range – forty-second percentile. An area of weakness that was noted was in Z.M.’s p ragmatic language which is the application of skills for social communication. To address this wea kness, it was recommended that the IE P include speech and lan guage therapy. Acco rding to Lilly, the school uses a program called S ocial Thinking. It was al so recommended that he continue to be exposed to typically developing peers to further develop his social skills competency. In the oral motor examination, Z.M . demonstrated adequate strength for coordination and range of motion for all articulators. Lilly testified that she and Eby conducted classroom observations of Z.M. at bo th SHLI and at his reside nce during one of his EI sessions. (J -16 and J -17.) Wh ile observing Z.M. at SHLI, she noted that Z.M. was abl e to follow a p icture sche dule, independently retrieve his task baskets needed for his activities, and wa s utilizing a token board system. The to ken board system was a reward system which consisted of a board that had five tokens. If Z.M. followed a direction, he was rewarded with a token which in turn could be used towards a prize. The prize may consist of a toy or the opportunity to go out to the playground. According to Lilly, the District also uses token boards in its preschool disabilities classro om and utilizes a similar reward system. It also would have provided the same picture schedule utilized at SHLI. During their observation, Z.M. was very curious about them, continuously turning around to look at them – clearly aware of their presence. Lilly stated th at sometimes students on the spectrum are not aware of their surroundings or wh o is around them. In Z.M. ’s c ase, he was certainly aware of their presence. He also dis played spontaneous language. During circle time, which typically inclu des two other stu dents, he was the only student present. The assistant went through the weather and san g songs among o ther things. She continuously prompting him throughout. At one point the assistant showed Z.M. a cookie to refocus him and to remind him of the reward that he would receive if he completed his tasks. According to Lilly, the District also prov ides

OAL DKT. NO. EDS 03237-19 21 circle time i n its preschool disability classroom and the in tegrated prescho ol program also includes interactive technology. During the observ ation period, she found th at Z.M. could, for a short amount of time, work or play independently. He was able to sustain his attention with a p referred activity f or abou t three mi nutes which was aver age for a three -year-old. Except for snack time, she did not see him interact with any peers other than his six -year-old sister, whom he played with on the playground. At snack time, with the aid of assistants and the BCBA, conversation was facilitated between the students. Lilly went on to note that the District had a similar type of setup. In discussing SHLI’s student/teacher ratio in the EI classroom, Lilly noted that it was a one-to-one ratio. During circle time there was one assistant working with Z.M. At some point during the d ay, Z.M. would work directly with t he teacher in the class who, during circle time, was working with another student. There is a rotation every forty-five minutes. There were typically four students in the class includi ng Z.M. who was the youngest and f our adults. Also, in the classroo m was a BCB A overseeing the classroom. According to Lilly, after the testing and observati ons were comp leted, the CST met to go through the results and developed a draft IEP in antic ipation of the upcoming IEP eligibility and development meeting. The proposed IEP took into consideration and incorporated many of the recommendations of Dr. Hoch, such a s ABA instruction, oversight by a BCBA, discrete trial teaching, a fulltime RBT, fami ly training, among other things. (J-22.) One of the recommendations by Dr. Hoch w as to systemati cally increase Z.M.’s participation in small group instruction. T he District w ould have provided Z.M. this instruction through slow integration into the smal l group setting when they felt he was ready. Given his test scores and the fact that Z.M. did not exhibit many disruptive behaviors, he appeared to be ready for some inclusion time. Also included i n the proposed IEP was sp eech and language therapy – both group an d individual as well as OT, also both group and individual. These services

OAL DKT. NO. EDS 03237-19 22 could be either pull -out or pushed-into the classroom. Also included was a BIP. While teacher input forms were requested from SHLI, none were provided. Instead, SHLI sent Z.M.’s progres s reports which were not received until the day prio r to the eligibility meeting. (J-10.) The draft IEP noted that once the progress reports were reviewed, the IEP would be revised if need ed. According to Lilly, this did in fact oc cur in the second IEP. Thereafter, they met with the parents and the CST for the Initial Eligibility Meeting on July 1 9, 2018. The meeting was audiotaped. (J-21 and J -63.) During the first part of the meetin g, the evaluators went through the results of the testing with the petitioners. The second part of the meeting was to further develop the IEP. (J -21.) There was no questio n that Z.M. was eligible fo r preschool disability. His cognitive and communication skills were average. He was verbal during a ll of the testi ng and observations. The area of weakness that was noted was the adaptive and the personal/ social piece - so the District wanted him to be around typical same age peers to give him exposure. The draft IEP proposed a half day in the pres chool disabilit y class – a self- contained classroom and the other half o f the day in the inclusion classroom which would have both special education and re gular education students. Small group would have been slowly introduced in both settings and his teachers would ensure that he had the requisite skills before introducing him into a new setting. Lilly went on to state that it was important for Z.M. to ha ve the inclusion time wi th his typically developing peers as they would have the language that could interact and en gage with h im a nd the RBT would be there to facilitate the interactions. While the July 2018 , IEP prov ided for ABA instruction in the “Modific ations” section of the IEP, due to the concern s raised by Dr. Hoch that Z.M. would not be receiving ABA instruction, in the January 2019 , IEP, it was clarified further. (J-34.) Under the related services it stated, “ABA based instruction, and this would be done in the gene ral education and special educa tion classrooms” and again under

OAL DKT. NO. EDS 03237-19 23 “Modifications” where it stated “I ndividualized d ata-driven instruction based on the principles and procedures from the science of Applied Behavior Analysis” Lilly test ified t hat she strongl y be lieved that a n out of District placement was inappropriate for Z.M. By sta ying in District, Z .M. wou ld be pr ovided an inclusion program which was important for him given his area of weakness - the language piece of communicating socially. By attendin g sc hool within t he District, h e could start learning that language fr om his peers who are the same age, which was not something that SHLI could provide. Additionally, the District would support Z.M. behavior wise with a BIP that provided h im BCBA oversig ht, a teacher who was highly sk illed in AB A instruction and a full time RBT to support him. Throughout the IEP meeting, the petitio ners were repeatedly asked if they wanted to provide any input regarding the goals, recommendations or if t hey had any thoughts or concerns. Understanda bly, the pe titioners indicated that t hey wanted to review the proposed IEP further and also requested the opportu nity to see the proposed program and ESY program along with their expert. According to Lilly, the petitioners did come in to observe the ESY program which, at the time, was not the full program due to the integrated preschool program not being offered i n the summer. The ESY program was geared towards the severely disabled students so that they d id not regress over the summer. Prior to the pe titioner’s coming in to observe the E SY program, the school received a letter indicating that petitioners were unilaterally placing Z.M. at SHLI for the start of the school year. (J-24.) Once the school year started, arrangements were made for the peti tioners and their e xpert, Dr. H och, to come i n to observe both the preschool disability classroom and inclusion c lassroom on various dates in October 2018. (J -27.) The firs t communication that they received reg arding the July 2018, draft I EP w as when they received Dr. Hoch’s report in December 2018 . (P-31.) Prior to that nothing had been received from or on b ehalf of th e petitioners as far as feedback on the initial proposed IEP nor had any additional documentat ion been prov ided from SHLI regarding Z.M.’s

OAL DKT. NO. EDS 03237-19 24 progress. Upon review of Dr. Hoch’s report as well as the progress reports that had been provided back in July 2018, the initial draft IEP was revised (January 2019, IEP). (J-34.) Attached to the January 2019, IEP was an outline of the areas that had b een revised. (J-34.) Among the changes in the revised IEP was a start date for implementation which was January 2, 2019 – the hope being that SHLI and the District would collaborate an d transition Z.M. over in to the Distr ict’s program in the New Year. The goals were al so adjusted to make the progra mming similar to what SHLI was providing. Also changed was the amount of inclusion time – decreasing it to ninety minutes. This was based on Dr. Hoch’s recommendation that Z.M. was not yet ready for inclusion. Another change was the provision of increased parental training. Despite the changes made to the IE P, the petitioners did not accept the same. In March 2019, over a period of thre e days, after the petitioner’s had filed a Due Process petition, she and Eby went to the SHLI to observe Z.M. The purpose of the observations were to gather updated information on Z.M.’s classroom performance. (R- 54.) Prior to the observation dates, additional information had been received which included, among other th ings, Z.M.’s progress reports from May 2018 – January 2019; school and home pro gram data; and parent training logs. The focus of her observation was to see Z.M.’s classroom readiness skills. As part of her observations, she noted that Z.M. was able to identify shapes and colors; was able to count up t o five and count two objec ts which for aged three was impressive. During playtime, he had nice vocalization when he was playing with a car. He was comple ting puzzles indep endently – matching shapes and letters. She also noticed that he was able to a nswer W/H questions such as “w hat is your age?” or “what color is grass?”. According to Lilly, this was significant and could be generalized in the inclusio n environment and in the preschool disability classroom. She also observed him working in a dyad, which was similar to a small group, and having group instruction – noting that

OAL DKT. NO. EDS 03237-19 25 Z.M. sat appropriately, with his legs crossed and looking at his book. He w as n ot turning around or looking at other things. He was paying attention to the story that was being read aloud and was not d istracted. When the teacher asked questio ns, he was able to provide two or three -word responses. While at times he needed pro mpting to raise his hand, so did the other children in the group. Lilly went on to state that circle - time in the District woul d have bee n similar to the SHLIs’ program ex cept that Z.M. would have had an RBA assisting him during circle time unlike SHLI whose ratio was two students to one assistant. Lilly went on to state that in preparation of the hea ring, she reviewed some of the discovery provided which included the p etitioner’s observation notes of the District’s ESY program. (P-26.) In so doing, she found that petitioners may have been confused or misunderstood the program – explaining how each c hild’s programming is different and individualized depending on the child’s needs. Given the timing of the litigation, a new IEP was required for the upc oming 2019/2020 schoo l ye ar. (J-65.) While a reque st was made to hold an IEP meeting before the expiration of the curr ent IEP, no meeting was held. (P-66.) Information had been requested in the beginning of May from SHLI – specifically teacher input, however, the information was never provided. A few d ays prior to the issuance of the new IEP, the Di strict received Z.M.’s progress reports from SHLI and based upon that information, some of the proposed goals were updated. (P-64.) According to Lilly, the 2019/2020 IEP pro posed a full d ay i n the prescho ol disabilities classroom with sometime in the inclusion classroom. Parent counselling and training was still being provided. The BCBA support was increased because the teacher in Z.M.’s 2019/2020 preschool disabilities classroom did not have as much ABA experience. With regard to transitioning, the IEP called for transitioning over the summer – with the transitioning take place in both locations with the assistance of staff from both the District and SHLI. She herself wou ld have worked closely with the staff, parents and administration to make sure all aspects of th e IEP were implement ed. More specifically, Z.M.’s data wou ld have been reviewed frequentl y to see where he

OAL DKT. NO. EDS 03237-19 26 was making growth, hold meetings w ith the parents an d go into the c lassroom make sure that things were being implemented. Lilly went on to state that sh e believed all of the IEP’s (July 2018, January 2019, and July 2019 IEPs) provided FAPE in the lea st restrictive environm ent to Z.M. The CST thoro ughly evaluated h is scores on standardized testing compared to same age peers and it was their strong belief that Z .M. needed to have opp ortunities in an inclusion cl assroom to have those nece ssary social in teractions. The Distri ct would have provided him those opportunities in conjunction with the appropriate supports. On cross-examination, L illy acknowledged th at she is not a BCBA and that the only ABA trai ning she ha s received is throu gh the workshop s that she has attended . Nor does she have any certification in the area of autism or autism education. She was assigned Z.M.’s case when he was first presented to the District through EI. When she first met with t he p etitioners at the Id entification Pl anning Meeting, the petitioner’ s provided several repor ts f rom Z.M .’s doctor – Dr. Farrell, M.D. (J-2, J -3, and J -8.) Through these reports, she learned that Z.M. had an autism d iagnosis and required substantial supports. One of the recomm endations by Dr. Farrell was that Z.M. receive twenty-five to thirty hours a week of ABA. Lilly further acknowledged that Dr. Hoch’s reports, which had also been provided, opined that Z.M. pre sented with significant deficits in all areas and recommended continued placement at SHLI; full time oversigh t by a senior level BC BA; and a full day of individualized instruction. (P -7.) She agreed that the District did not have a seni or level BCBA or a BCBA on site daily. In looki ng at t he P roposed Action in t he Initial Iden tification and Evaluation Planning Meeting, Lilly acqu iesced that she herself did not conduct any formal t esting and that the Battelle, which was relied upon by the District, was performed by EI in June 2018. (J-13.) In looking at th e results of the Battelle, in the Adaptive area, she agreed that Z.M. score d in the f irst percentile - a significant discrepancy from the mean. The same on th e Personal -Social area, where he fe ll wit hin the s eventh percentile. In

OAL DKT. NO. EDS 03237-19 27 drilling down on this se ction, for adul t interaction, Z.M. fell within the sixteenth percentile. I n p eer in teraction, he fell w ithin the first percentile having received zero points in the area of awareness of t he pre sence of other children. Lilly we nt on to explain that the pe rsonal, social and adaptive f indings were based upon the parent’s responses to the assessment and observation. In q uestioning Lilly about her observations of Z.M. at SHLI, she confirme d her report that the re were five student s present in the class, five staff members and a BCBA pre sent in the classroom on a daily basis. (J-17.) She was aware that every forty-five minutes, the staff members rotate with Z.M. so that he was not working wi th the same staff mem ber all day. She a lso confirmed that unlike th e District, SHLI had other BCBA’s on staff and that the school ha d only thi rty students. In discuss ing her observations of Z.M. with his sister, she acknowled ged that throughout the time Z.M. was interacting with his sister, he required prompting to engage with her and vice versa. In going through the July 12, 2018 , and July 18, 2018, emails from Eby, she acknowledged that the email were generated prior to the IEP meeting with the parents ; was without their input; and that recommended BCBA oversight was less than what was recommended by Dr. Hoch. (J-18.) Lilly went o n to sta te that the recommendation of ten percent supervision as opposed to twenty percent as recommended by the Behavior Analyst Certification Board was due to the highly trained teacher w ho would have been in Z.M.’s class. (P-47.) She was unaware that for a program to be deemed “Comprehensive”, it must provide thirty to forty hours of one-on-one ABA instruction. In explaining why Z.M. was not being placed in the autism classroom, Lilly stated that the District was of fering a preschool disabilit ies classroom because that was what he was classified under and because the District could provide hi m with the requisite services in that setting. Additionally, while the exact number of hours were not specifically set forth in the first proposed IEP, Z.M . would have been re ceiving ABA services throughout the day. Regarding direct BCBA supervision of Z. M., Lilly stated that while t he proposed IEP did n ot spec ifically word it as such, such servi ces were

OAL DKT. NO. EDS 03237-19 28 being provided as set for th under “Supports” in the I EP where it stated, “consultation with behavioral specialist”. She acknowledged that Dr. Hoch did not recommend participation in an inclusion classroom at t hat time, however , pointed out that she did r ecommend systematic transitioning into a least restric tive environment when he was ready. According to Lilly, despite what the Battelle results indicated – specifically that Z.M. had no awareness of his peers, the District felt it was appropriate for Z.M. to spend a half a day in the general education class room with hi s t ypical peers with su pport. No other options were considered at that time. While SHLI was not invited to participate the initial IEP meeting, they were asked for input which w as not received until the day before the IEP meeting. The i nformation provided was Z.M.’s progress notes. Lilly acknowledged that upon review of the same, it did not appear that SHLI believed he was ready for an inclusion c lassroom. The District did not immediately revise the IEP after review of the i nformation as they were hoping for some feedback from the petitioners regarding the proposed IEP. When question ed about the classroom schedu le for the 2018/2019 school year, Lilly acknowledged that many o f the itemized activities were group activities and did not reflect any ind ividualized instruction. (J -41.) She went on to state however , that the schedule was n ot student specific – rather it was an overall cla ssroom schedule and within that schedule, individualized instruction would occur. In discu ssing Dr. H och’s second c onsultation report wherein she reiterated her belief that Z.M. was not ready for an inte grated preschool classroom and expressed her concern for his placement in the self -contained classroom, Lilly stated that the D istrict, upon re view, provided a revised IEP. No f ormal IEP meeting was held prior to its issuance. (J-34.) The CST took into consideration Dr. Hochs’ concerns and decreased Z.M.’s tim e in the inclusion classroom, howev er, it wa s stil l their belief that it was important for Z.M. to be in an in clusion classroom with support. The BCBA hours and oversight were also refined in the r evised IEP. According to Lil ly, the rationale for not

OAL DKT. NO. EDS 03237-19 29 increasing the BCBA hours was based on the data which showed that Z.M. was making consistent progress and that th ere was an absence of high intensity disruptive behaviors. When questioned whether the progress and lack of disrupti ve behavior was because he w as being monitored by a BCBA daily, she replied that there would have been a teacher in the classroom providing the same level of instruction and oversight. Lilly was also questioned about her seco nd observation of Z.M. at Somerset Hills and her c onversation with the schools Director – Dr. Kevin B rothers. She acknowledged that Dr. Brothers informed her that Z.M. was ready to try to spend time in a nearby preschool, however , he did not say that Z.M. was ready to be in an inclusi on class. Lilly went on to state that the revised IEP proposed a decrease in Z.M.’s time in the inclusion time to a quarter of the day – not the half day that had previously been proposed. In discussing the proposed IEP for the 2019/2020 school year, L illy stated that she did not observe Z.M. in the home setting o r in the community, however, Eby did. One of the con cerns raised by the pa rents was Z.M.’s ability to, for instance, see a dentist or get a haircut. She had informe d the petitioners that goals could be incorporated in the classroom setting to work on the se issues. She was aware that SHLI provides support for the students for s ome of the activities and stated that the District had the ability to do the same. Lilly was also questioned about an email sent by Douglas Han to her on December 17, 2018. In re sponse she stated that he wa s not par t of t he IEP team but was a member of the CST at that time. He never evaluated Z.M. and did not participate in his IEP meeting or observe Z.M. at SHLI. It was her belief that the attachment to the email, symbolized th e adversari al s ystem that has bee n cr eated within special education and was not directed at the parents. (J -33, P-68.) She was aware that the petitioner’s daughter was also attending SHLI and that they had filed li tigation against the District but that all occurred prior to her employment with the District.

OAL DKT. NO. EDS 03237-19 30 Hanna Hoch (Dr. Hoc h), a BCBA-D was qualified and testified as an exp ert in Autism, ABA, and supervision and development of autism program s. Sh e is familiar with the petitioners, having evaluated the ir daughter J.M. in the past. In ea rly January 2018, the petitioners conta cted her t o conduct an evaluation of Z.M. and prov ide them with an assessment of his skill and functioning level in pre paration of him enter ing pre- school. (P-7.) Z.M. was not qui te thre e-years-old at the time of ev aluation and had already been receiving services through EI and SHLI which was an ABA based school for children with autism. As part of her evaluation, she interviewed the peti tioners, sp oke t o staf f members from SHLI, reviewed scho ol data and progress reports, and also reviewed medical repo rts by Dr. Farrell. (J -2.) In so doing she learned t hat Z.M. had been diagnosed with autism and required substantial supports. Dr. Farrell had recommended twenty-five to thirty -five plus hours a week of ABA and parent training with a BCBA which suggeste d t hat Z.M . had significant deficits and required a si gnificant level of intervention. The data reviewed had been c ollected by SHLI and measured a skill or a behavior of Z.M. ( P-52.) The occurrence was graphed and examined for trends and/or progress. The example provided was maintaining eye contact for t hree seconds. Data is taken on whether the child can do it and when. According to Dr. Hoch, the purpose of graphing is to allow visual inspection and analysis to detect whether there is progress – either an increase for skill acquisition or a decrease for behavior reduction. In looking at Z.M.’s data, there were s ome skill areas that wh ere he made quick progress with interve ntions in place . However, there were also areas that took him longer and h e r equired more teaching and modifications. These findi ngs were also reflected in Z.M.’s progress reports which was based on the data. On January 9, 2018, as part of her evaluat ion process, sh e went to SHLI to observe Z.M. At the time of observation, he was involved in a variety of instructional activities and programs that were grounded in the principles of ABA. One of th e

OAL DKT. NO. EDS 03237-19 31 instructor’s present was his primary data analyst who also provided home programming for Z.M. and his family. The analyst was un der the su pervision of the classroom supervisor, the As sistant Director. The school also had several BCBA’s on staff o f which a couple were on the doctoral level. The BCBA’s supe rvised the chil dren’s programming. During her observation , Z.M. participated in on e-to-one teaching sessions which is not uncom mon for children with autism in an ABA program as they require intensive instruction i n a one -to-one format so that they can f ocus without di straction. The ultimate goal is fo r the child to participat e i n group instruction with typical peers , however, they need the prerequisite skills for that to happen. Some of the prerequisite skills would include among other things: the ability to sit quietly and answer questions in a group; respond to questions wi thin a gro up setting; being able to respond to peers; and observational learning. Z.M. did not at that time, h ave the necessary pre-requisite skills to be in a group learning setting with other disabled students or typical peers. Dr. Hoch went on to sta te that ul timately, group learning would be in a large group setting with typical peers. However, incremental steps would have to be taken to achieve that goal, starting with small group (two stu dents) using dyad instruction. As the child advanced, the g roup would be expanded. However, if the child is in a s pecial education program, the small group should consis t of chi ldren who were also spe cial education students. She also no ted that Z.M. w as being taught by a several instructo rs which meant that the school was programming for generalization which is fre quently done in an ABA program. Also noted was the fac t that SHLI utilized a token bo ard or motivational system for reinforc ement of partic ular skills. This too is no t uncommon in teaching children with autism. Z.M. was being reinforced every few minutes which meant that his need for reinforcement was significant. In discussing the importance of h aving a BCBA present in the classroom, Dr. Hoch stated that an ABA program is a very complex syste m of instruction – therefore

OAL DKT. NO. EDS 03237-19 32 ongoing training and su pport by the BCBA is important. With a BCBA p resent in the classroom, th e training is hands-on. There w ere also different pr ogram models – “Focused ABA Treatment” and “Comprehensive ABA Treatment”. (P -47) Foc used ABA Treatment is implemented for a li mited number of targets (e.g. addressing a specific challenging behavior). The Compre hensive ABA Treatment, which is what Dr. Farrell had recom mended for Z.M. and what SHLI was implementing, addresses multiple affected developmental domains. The program calls for thirty to forty hours of treatment per week plus direct and indirect supervision and caregiver training. SHLI was following the AB A curriculum with their one -to-one instruction under BCBA ov ersight wh ere Z.M.’s pre -requisite skills were being worked on . This would eventually provide h im the necessary tools to participate in sm all group formats a nd build up from there. In describin g the treatment methodology, Dr. Hoch stated that initially the treatment calls for one -to-one staffing which w ould gradually build up to inclu de small group formats as appropriat e. Oversight of the program is t hrough a tiered service delivery model where in the BCBA supervises the individuals providing the direct treatment. BCBA supervision includes among other things: monitoring the data; making changes to the intervention techn iques; assessing and developing g oals; treatment planning; and hands on training. The recommended “dosage” of case supervision by a BCBA is two hours for every ten hours of direct treatment. Therefore, if a student is receiving thirty hours of ABA inst ruction, there shoul d be six hours of BCBA supervision and ei ght ho urs if the re were forty hours of instruction. In a Comprehensive Program, the r ecommended caseload for a BCBA is six to twelve students if they are unsup ported. If they are supported, the recommended caseload is twelve to sixteen students. It was her belief that SHLIs’ program fell within the recommended guidelines. In addition to the school observation, she also conducted observations of Z.M. in the home environment. Z.M. was working with T.M. on his home program which had

OAL DKT. NO. EDS 03237-19 33 been developed by SHLI. SHLI had trained T.M. in both the home and school environments, so that she could continue the programming in the home environment. She also spoke with the petitioners who expressed concerns such as eloping, tantrums, social concerns and echolalia. Based upon her findings, it was her belief t hat while Z.M.’ s maladaptive behaviors an d skill deficits were bei ng addressed at home and in school, fo rmal and systematic training procedures needed to continue because he was still demonstrating deficits in al l areas related to his diagnosis. It was h er further opin ion that he shoul d remain a t SHLI as the school was aware of his needs and area s of deficits and the interventions that were appropriate for h im. Addit ionally, the school a lso h ad trained and exper ienced personne l working with him which was sign ificant as was the BCBA oversight tha t the school provided. He was getting one -to-one in struction which he needed and was not ready for group ins truction, even if an aid was sitting right next to him. It wa s her belief th at leaving the SHLI program, even if it was to another comprehensive program, would have resulted in a significant regression. As part of her evalua tion, she provided twelve r ecommendations going forwa rd which SHLI was already implementi ng. (P-7, Page 12.) The basis for the recommendations was because Z.M. co ntinued to demonstrate deficits tha t needed to be addressed by an intensive behavioral progr am. In discussing the rati onale for each of her recomm endations, Dr. Hoch opine d that Z. M. needed an in dividualized formal teaching curriculum based on ABA princip les and pr ocedures which addressed all areas of his sk ill deficits and challenging behaviors . The prescribed program, which should be year-round, required full-time supervision and staff training and a senior-level BCBA on site daily so as to supervise al l aspects of Z.M.’s program. The program itself should be a data -based approach to instruct ion with the data analyzed on a r egular basis which wou ld allow the staff to evaluate the effects of the teaching and treatment interventions. The staff itself sho uld include special education teachers, instructors and aides with specific training and edu cation in ABA and education . The rationale being that Z.M. was receiving instruction fro m a variety of instructors and all of t hem needed to be appropriately train ed. Z.M.’s family should also cont inue to be consulte d to

OAL DKT. NO. EDS 03237-19 34 ensure maintenance and generaliza tion of skills and address any problems occurring in the home environment. With regard to her recomme ndation t hat Z.M. partic ipation in small group instruction should systematically increase, Dr. Hoch testified that if such a move were to occur, it should be carefully planned and systematically approached. She went on to state that at the time of her eva luation, Z.M. was not ready to b e in a program with group instruction as a daily portion of his da y, much less transition into a less restrictive environment. Dr. Hoch noted that sub sequent to the issuanc e of her evaluation, she had occasion to review Z .M.’s June 2018 , Battelle. She noted that un der the section for peer interaction, his raw score was zero which meant that he ha d met none of the skills or milestones for his age and his “Z-Score” was negative three. (J-13, Pages 1 and 3.) These findings corroborated her belief that he was not ready for group learning. She was also asked to review the draft IEP that the Distri ct had provided to t he petitioners in July 201 8. S he did not agree with the District’s placement of Z. M. in an inclusion class for half the day because he was not capable o f learning in t hat group environment. She also had concerns about the other half o f the day in the pre school disabilities classroom. Additionally, the IEP did not call for thirty to forty hours of one-to- one ABA instruction or supervision by a BCBA. In fact, the BCBA consultation was for three hours a week which was not the recommend ed do sage of six to eight h ours. Even if Z.M. ’s tea cher h ad ABA training, it did not eli minate the need for BCBA supervision for the recommended hour s, nor did the IEP call for daily data review and modifications as needed. In September 2018, the pet itioners requested a second evaluation. As pa rt of this evaluation, she observed Z.M. at SHLI. (P -31.) At the time of observation, Z.M. was still receiving one-to-one teaching, however, he was participating in circle time with several other students. Ini tially he participated in this activity for ten minutes, however, the time was reduce d to five minutes due to his lack of progress which was a sign that

OAL DKT. NO. EDS 03237-19 35 he wasn’t ready to pa rticipate in group instruction. Even in the five -minute participation in group ins truction, she observ ed the instructor sitting within tw o feet of Z.M. - repeatedly givin g him snacks to reinforce on -task behaviors. This underscored her opinion that he was not ready for an inclusion class such as group literacy, math or any other group activity. She also went to the Branchburg p reschool special education class to observ e both a disabl ed classroom as well as an inclusi on classroom. Th e self -contained classroom had eig ht students, one teacher, one speci al education te acher and two paraprofessional students. Mo st of the instructio n was in small and large group activities - which in her opinion, Z.M. would not have benefitted from. (J-41.) Even if he had been pulled out for one-to-one instruction, it would not have been appropriate given the configuration of the room. Lunch was in a group setting with the preschool disabled students eating with the third graders. It w as noisy and chaotic and not conduci ve for promotion and teaching of social interactions. Data collection was also of c oncern as the dat a recording an d graphing wer e done on the same sheet of paper. Dr. Hoch opined th at the primary method of data analysis i n an ABA program is visual ana lysis and the p rocess used by the District makes visual analysis very challenging. Additionally, the District’s BCBA does not view or analyze the data unless requested to do so by the S pecial Education teacher. According to Dr. Hoch, this is inappropriat e as only the s upervising BCBA should be monitoring and analy zing the data an d even that needs to be don e on a regular basi s. The D istrict’s BCBA was only in the building where Z.M. wou ld attend, three days a week – not daily. Therefore, not only would Z .M. receive les s than the recommended number of hours of BCBA oversight, the BCBA would not be available on a daily basis. Based upon the totality of her evaluation, it was her opinion that Z.M. continued to present with significant deficits in all areas related to his autism. While he had made progress, he still nee ded the intensive program with qualified staff members wh ich was what SHLI provided.

OAL DKT. NO. EDS 03237-19 36 On cross -examination, Dr. Hoch a cknowledged that her doctorate was in psychology and that there was no doctorate of B CBA. In go ing through her professional experience , specifica lly the Alpine Learning Center, New York Center for Autism Charter School and the Reed Academy, she also ackno wledged that typical students did not attend those schools, nor has sh e ever taught t ypical students. She also testified that over thi s time period which had so me overlap, she oversaw over one hundred students in terms of assessments and de veloping and im plementing behavioral intervention plans among other things. Dr. Hoch also agreed that there was a difference between a BCBA who super vises specific students, i n terms of h ow many hours should be dedicated to that, versus conducting assessm ents or impleme nting a BIP. Dr. Hoch concurred when questioned, that while used i n schools, the Guidelines were developed to help m edical professionals and medical insurers to understand ABA protocols for in surance payment purposes. She also agreed th at if you are n ot a BCBA, then you must be qualif ied as an RBT to deliver an ABA program and that every child has different needs, therefor e, each child’s programming should be uniq ue to that child. Dr. Hoch acquiesced that she issued a report for Z.M. ’s older sister and that she had made the exact same recommendations for her as she h ad for Z.M., de spite her earlier testimony that each ch ild’s program s hould be individualized. Later in her testimony she clarified that the proposed recommendations for both children w ere “general features” but that their i nstructional programs would be individualized. She also agreed that when she evaluate d Z.M. in Janua ry 2018, he wasn’t quite two-and-a- half-years-old - not almost three-years-old as she had testified t o on direct examination. By then, Z.M. had already been unilaterally placed in SHLI by the petitioners. In discussing Z.M.’s diagnosis, Dr. Hoch stated that she was aware that Z .M.’s initial diagnosis was autism wi thout accompanying language impairment or intellectual ability. (J -2.) She was al so aware t hat on the Battelle, a standar dized test, Z.M .’s scores in communication and cognitive fell within th e averag e rang e. When she

OAL DKT. NO. EDS 03237-19 37 observed him for the fi rst time in h is home environment, he displayed bas ic play skills such as appropriate interactio n with toy s, exhibited “nice joint atten tion”. He also responded well to instructional pauses w hich he was abl e to gen eralize in the hom e setting. Dr. Hoch wa s also questi oned about the teaching staff at the SHLI program during the time of her firs t observation. In response she stated that Z .M.’s instructor, who was not a BCBA, was also his data analyst home programmer. She reiterated her earlier statement that at the ti me of observation, Z.M. did not have the requisite skills to participate in a group setting with other disabled students o r in an inclusio n classroom. She acknowledged , however, that she has not seen Z. M. since September 2018, therefore she cannot say whether he has since developed the necessary skills. In going through the prerequisite skills that she had again identifie d in her second evaluation, Dr. Hoch agreed that if the da ta from SHLI now revealed that Z.M. was demonstrating the prerequisite skills , her opinion may change as to his r eadiness to move into a more inclusive environment. (P -31.) When asked to go throug h Z.M.’s progress report of June 2019, Dr. Hoch acknowledg ed that Z.M. ha d attained many of the prerequisite skills that she had identi fied in her last evaluation of Septe mber 2018. However, the progress report alone did not ch ange her opinion as other fa ctors such as further obser vations, re view of other data, and interviews with the staff and Z.M.’s parents were necessary. Additionall y, while she had itemized a number o f prerequisite skills, the list was not exhaustive, and the skills took time and a si gnificant amount of instruction to develop. Dr. Hoch w as also questio ned about her earlier test imony reg arding the July 2018 IEP – specifically her criticism that Z.M . was not being provided thirty to forty hours of ABA programming. She acknowledged that the IEP did call for Z .M. to have an RBT more than thi rty hours a week and provided parent trai ning by the BCBA in the home environment two times a month. The IEP al so provided for BCBA consultation three hours a week. Z.M.’s teacher, while not a BC BA was trained i n ABA. She was also aware that the IEP called for transitional services.

OAL DKT. NO. EDS 03237-19 38 Regarding BCBA supervision, Dr. Hoch was a sked whether a BCBA needed to be in the classroom throughout the day. In response she s aid “no”, however, SHLI was providing six hours a week of BCBA supervision. During her first observation of Z.M. at SHLI, the classroom trainer was a BCBA who was in t he classroom daily. She was not sure what credenti als the classroom trainer held during her second observation but regardless, it was he r o pinion, despite what the Guidelines s ay rega rding th e educational requirements for an RBT , Z.M.’s instructional staf f should a t a minimum hold a bachelor’s degree. According to Dr. Hoch , unlike the Di strict, SHLI has a tiered hierarc hy of structure. At the top was the BCBA supervising the overall program. In the classroom, there is a trainer who may or may not be a BCBA. This individual provides a significant portion of the training and support. The re is also a lead teacher, who s imilar t o the trainer, may or may not be a BC BA. This in dividual provides direct instruction to t he students and assists the trainer w ith pa perwork and provides training to other classroom instructors on data collection and analysis. There are also class room instructors who have a t a minimum a bachelor’s degree. When questio ned about her earlier test imony that only a BCBA could provide training and supervision, Dr. Hoch backtracked stating that a lead teacher, while providi ng training and supervision to the classroom in structors, was not super vising the educati onal program of the students, that was the role of the BCBA. Dr. Hoch was also questioned about her second rep ort wherein she noted that a BIP was going to be devel oped due to Z.M.’s low intensit y disruptive behavior. Mor e specifically, she was questio ned about the f act that SHLI did not have one in place. In response, she sta ted that the school possibly felt th at he did not r equire one. When questioned further ab out the observation by Eby and Lilly t hat Z.M. was easily redirected within thirty second s, she agreed t hat it was quite plausible that Z.M. did not actually need a BIP.

OAL DKT. NO. EDS 03237-19 39 T.M., testified that she has t wo children, a daughter, J.M. who is eight and Z.M. who was four. J.M. is autistic a nd after Z.M. was born, she and her husband suspected that he too may be autistic because he was demons trating some of the same autisti c behaviors as J .M. In describing Z.M.’s early yea rs, T.M. stated that early on , they realized that Z.M. was not meeting certain developmental milestones such as sitting up and talking. When he did start to verbalize it was for a short period of time and then he stopped. Given their s uspicions, they h ad Z.M. evaluated when he was five -months-old and again when he was ei ght-months-old. When he was sixteen-months-old, they took him to see a Neurodevelopmental Pediatricia n - Dr. Cristina Farrell (Dr. Far rell) who determined that he met t he criteria for ASD. (J-2.) Dr. Farrell found that Z.M. had pervasive deficits in soc ial relatedness, communication and interest. She also determined that Z.M. demon strated restricted and rep etitive patterns of behavior . I n describing some of Z.M.’s be havioral issues, T.M. stated that there were issues with feeding and eating. Additiona lly, he would no t speak, make eye contact nor wou ld he interact with his sister. According to T.M., Dr. Farrell recommended that Z.M. receive ABA twenty-five to thirty-five plus hours a week. She is familiar with ABA because her daughter was being provided ABA through her program at SHLI where she has attended for the past five years. She herself had been t rained on ABA through the sc hool so t hat J.M.’s programming could be carried over into the home environment. When Z.M. was first diagnosed, he received EI services which included physical therapy and developmental intervention. He was a lso enrolled in an ABA progr am at Search – an ABA based progra m for y oung childr en. He attende d that program for approximately fou r months after which they enrolled him in SHLI. O nce there, the school provided her training specific to Z.M.’s needs as well. They moved Z.M. from t he S earch program to SHLI for a couple of reasons – one of which was the qual ity of the progr am and the secon d reason being that their

OAL DKT. NO. EDS 03237-19 40 daughter also attended the school. It was logistically easier to transport the children to the same school as opposed to juggling two different school calendars. After Z. M. h ad been at the school for about a year, they star ted to see some progress. He st arted to verbali ze again, a nd his ey e contact improved. Additionally, some of the repetit ive behaviors diminished. Despite his progress there was still some concern, s o they took him back to Dr. Farrell in April 2017 , and again in September 2017. Dr. F arrell determined that Z.M . continued to meet the criteria for autism and recommended that Z.M. receive thirty-five hours of ABA services weekly. (J-3, J-5.) While at SHLI during the 2017/2018 school year, they received Z.M.’s progress report which reflected that Z.M. was making progress. (J-6.) According to T.M., she met with th e staff membe rs frequently both at h ome for training which was weekly and in the school setting. When Z .M. was approach ing his third birthday, EI referred him to the Distric t’s CST. Prior to this, they took him to see Dr. Hoch, who had in the past evaluated their daughter, to get some guidance as to what Z .M.’s needs would b e when he turned three. She found that Z.M. was doing well at SHLI, however, was not ready to go to a regular preschool. She instead recommended that he continue at SHLI where he could continue to receive thirty-five hours a week of ABA. (P-7.) She agreed with Dr. Hoch’s findings tha t Z.M. displayed deficits in all areas and that were he to transition into a different program, such as the District’s program, he would significantly regress. In May 14, 2018, they met w ith the District for a n Initial Iden tification and Evaluation Planning Meeting. (J -9.) The District’s BCBA was not in attendance at the meeting which w as of concern to her. As a result of t he meeting, the District felt th at evaluations of Z.M. were warranted and proposed cer tain testing which she and her husband consented to. Provided to the District at the time of the meeting, was a co py of Dr. Hoch’s evaluation. The District also informed them that they w ere going to rel y upon the Battelle that was going to be done by EI. (J-13.) The study was done in June

OAL DKT. NO. EDS 03237-19 41 2018, and when the results came in, she and her husband were troubl ed as it appeared that Z.M.’s scores were lower than the testing from the prior year. In or ar ound this same time period, Z.M.’s ne xt progress report was received from SHLI which showed that he continued to make progress , however, there were still some c oncerns. (J-10.) The Initial Eligibility Determination and IEP Development meeting took place on July 19, 2018 , at which time it was de termined that Z.M. was eligible for special education services. (J-21.) According to T.M., when they attended the me eting, the District had al ready prepared an I EP and they were sho cked to see that what was being p roposed was a half a day in the inclusion class room and that Z.M.’s BCBA hours were cut in half. The IEP also stated that no other optio ns had been considere d which made them believe that Z.M.’s placement had bee n pre - determined without any discussion about the appropriateness of the s ame. (J-22.) In describing the proposed program, the Di strict informed them that Z.M. would have an RBT with him throughout the day and that there woul d be discrete trials. He would also be placed in th e integrated preschool class with his typical peers , which to date, SHLI had not yet recommended. She also felt that such a move was inappropriate at th at time based upon what s he was seeing at home and in the community. Z.M.’s program at SHLI consisted of a self-contained classroom with one-on-one instruction throughout the day with little to no group interaction. T.M. went on to state that they did not pro vide any feedback to the District at the time of the meet ing becau se they wanted to ob serve the propo sed program first and digest the IEP which had been handed to them on the day of the meeting. However, in review of the IEP, one of the immediate c oncerns was the lack of BCB A oversight/hours. The pr oposed hour s fell far short of wh at was recommen ded by Dr. Hoch and what Z.M. was currently receiving at SHLI. Additionally, the IEP was not clear whether the RBT would be with her son throughout the day including when he was in group learning or whether he would re ceive o ne-on-one instruction th roughout the day. Nor was there any indication that a special education teacher would be present in “specials classes” (art, gym, music).

OAL DKT. NO. EDS 03237-19 42 According to T.M., other areas of concern were also inadequately address ed in the I EP. In looking at the Social H istory Evaluation, she reported to the evaluator twelve areas of concern, however, these areas of concern were not properly addressed in the proposed IEP. Some of the concerns included am ong othe r things: self -help skills (b rushing teeth, dressing); eliminatin g; stereotypical repetitive behaviors without adult prom pting; elopement; prob lem behavi ors; doctor ’s appointments ; nighttime routines and screaming. T.M. went on to state that SHLI was helping them with thes e issues but the proposed IEP did not address them. While the IEP offered training twice a month at h ome, SHLI offered training at ho me and in t he school settin g and more frequently than what the District had proposed. Also, disconcerting, was the summe r p rogram t hat was b eing off ered. It was different than wha t was prov ided during the school year. Acc ording to T.M., the SHLI summer program was a continuation of the school year program which was something Dr. Ho ch endorsed. D ue to the fact that the ESY program was diffe rent than the academic year prog ram and their inab ility to observe the academic yea r program until after the school year bega n, they sent a l etter to the District informing them that Z.M. was unilaterally being placed at SHLI until they had an o pportunity observe the school setting. (J-24.) In discussing her observations of the ESY p rogram, which she formalized in an observation note, T.M. stated that the program fell short of what SHLI provided. (P-26.) For instance, there was no token board, behavior specific praise or an RBT in the room at the time . Therefore, it was difficult to envision how Z.M.’s program w ould work. Additionally, while “verbal stereotypy” was observe d, it was not corrected nor were any contingency statements given to the students. They were also informed that the BCBA was out for the entire month, therefore, there would have been no BCBA o versight for their son ha d he attended the ESY program which was contrary to Dr . Hoch’s recommendations. Additionally, based upon their prior experience with her daughter and the District, during “specials classes”, the re would be no supervision by either a spec ial education

OAL DKT. NO. EDS 03237-19 43 teacher or teachers with training in ABA. While they h ad not yet obser ved an inclusion class, there was co nsternation of over the p ossible class si ze believing that the students would outnumber the BCBA’s on st aff commenting that SHLI had a total of thirty students with five BCBA’s on staff. According to T.M., Z.M. attend ed the SHLI summer program after which he went right into their Pre-K program. He continued to receive primarily one-to-one instruction and was making progress. (J-28.) In October 201 8, they (T.M., S.M. and Dr. Hoc h) went to the Whiton Elementary School to observe the inclus ion classroom. As with their summer visit, she and her husband formalized their observations. (P -29 and P- 30.) One of the t hings noted was the s ize of the clas sroom which was at eleven children versus SHLI classroom size of five children. The locati on where the d iscreet trials were conducted was another area of concern. It was i n the corner of the room by the cubbies and separated by a partition. This did no t sit well with them because not only was their son not ready for an inclusion classroom, he would be excluded from that same classroom during discreet trials. It did not make sense. Also, disconcerting was th e class schedule that had bee n provided to t hem by the District. (J -41.) The self -contained part of the day cons isted of “group instruction” throughout the morning. The afternoon session was the “inclusion” part of th e day and consisted of “s pecials classes” as well a s othe r classe s t hat consiste d of group instruction. During their observation time at the school, they sat in on one of th e gym classes. It was T.M. ’s belief that her son would not be able to do what the other children were doin g (organized games/activities) a nd the p roposed IEP was silent on whether Z.M. would have to participate in thes e activities. Additionally, during t heir observation period, th ey did not see any token boards in place or behavior sp ecific praise. They also did not see any disruptive behavior or stereotypy from the children that were present. The children they obser ved were able to sit quietly at a tab le and remain engaged throughout an activity. According to T.M., this was not som ething that Z.M. was capa ble of, due to his disruptive behavior and stereotypy which continue to

OAL DKT. NO. EDS 03237-19 44 manifest. Unlike SHLI who had daily BCBA oversight, the District had one BCBA (Eby) who had to divvy up her time between three schools within the District. Data collection and asse ssment was also another concern. Accord ing to Z.M., student p rogress is assessed by the District weekly and thereafte r there are quarterly reports generated to track progress according to the IEP goals. This was different than the SHLIs’ program which provides discrete trials all day every day. T.M. went on to state that Dr. Hoch also prepared a report after ob serving the District’s program in Oc tober 2018, and her obs ervations of Z.M. in the Somerset Hills program. Based upon her obs ervations, she recommended that Z.M. remain at SHLI believing that it was the most appro priate placement for him given his needs and success. (P-31.) This report was shared with the District along with a request that the District agree that conti nued placement at SHLI was appropriate, however, the District did not set up another IEP meeting. (J-32.) Instead, what was recei ved was a revised IEP. (J-34.) In review of the s ame, if appeared th at the proposed IEP i ncreased Z.M.’s time in the self-contained classroom, however, there was still a component of Z.M. attending the inclusion classroom. The amount of BCBA oversight remained the same at three hours a week. The IEP also had an effective date of January 2, 2019, which meant that the first IEP w ould have been i n place from September 2018, through to December 31, 2018. Upon receiving the revised IEP, she sent it to Dr. Hoch and, a lso sent a letter to the District stating that they disagreed with the proposed IEP. (J-35.) Z.M. remained at SHLI for the entire 2018/2019 school year. His January 2019, progress repor t noted that he continued to have certain deficits and it was her belie f that he was not ready f or an inclusion classroom and wouldn’ t be for quite som e time. In May/June 2019, the Distri ct attempted to set up an I EP meeting for the 2019/202 0 school yea r, however, when she sent them possible dates, they never resp onded, therefore no formal meeting t ook place. (P-66.) In Ju ne 2019, a not ification was sent to the District which placed them on notice that petitioners were unilaterally going to

OAL DKT. NO. EDS 03237-19 45 continue Z.M.’ s placement at SHLI. (J-40.) According to T.M. h er so was making progress at SHLI and it was the school’s belief that he was not ready to transition into the District’s program. Su bsequent to sen ding the letter to the District, an IEP w as received for the 2019/2020 school year. The propose d IEP continued to call for pa rtial placement in the inclusion classroom. T.M. went on to state that she hopes that someday her son can progre ss to the point that he can transition from SHLI into a less restrictive environment, however, he is not there yet. On cross-examination, when questioned about h er earlier testimony that Z.M.’s language ca me back once he started attending SHLI, T.M. ackno wledged that in January 2017, Dr. Farrell found that Z .M.’s aut ism wa s without an accomp anying language impairment, however, she did find that he had rece ptive expressive language delay. (J-2.) She also ack nowledged that his cognitive scores fell within th e average range on the Battelle as did his expressive and receptive language scores. (J-4 and J- 13.) Regarding her testimony th at sh e was surprised that Eby wa s n ot at th e Identification Meeting, T.M. s tated that did not know what E I had sent over, th erefore, was unaware that t he District, including Lilly, had no n otice that Z.M. was autistic. She also acknowledged that the District w as not provided a ll of her son’s documentation in advance of the meetin g, including Dr. Hoch and Dr. Farr ell’s reports. (J-15.) When questioned, about Dr. Hoch’s report, T.M. acknowledged that Dr. Hoch had been hired prior to EI referring Z.M. to the Dis trict for the s ole purpose of opining on the appropriate placement. When questioned why Z .M. was not brou ght to the m eeting, she stated that she was not told to bring him. T.M. went on to state that she felt that the District had already predetermined the type of program and place ment her son would receive when they atten ded the meeting in July 19, 2018. Sh e believed t hat this was supported by th e fact that the proposed IEP st ated that no oth er options oth er than an in-district placement had been

OAL DKT. NO. EDS 03237-19 46 considered; Eby did not interview either her or her husband or request to sp eak to Dr. Hoch; and it was also based upon her past dealings with the District which resulted in litigation. Th is position was further bolstered by Eby’s email wherein she spoke about “defending” her recommendati ons which T .M. took to mean in litigation. She acquiesced, however, that if the Dist rict had no t come pre pared with a proposed IEP, they would have been remiss. T. M. also agreed that the D istrict had asked for their input as th e IEP was a “working” docum ent and tha t the District was not require d to agree with their expert’s recommendatio ns. Howeve r, it was her position that they did not even consider Dr. Hoch’s report or SHLI opinions. Regarding Eby’s email and her earlier int erpretive testimony regardi ng the same , she acknowledged that there could have other plausible explanations behind the email. According to T.M., at the time of the meeting, she did not realize that the District was offering an ABA program , however, did see that the IEP provided an RBT throughout the day and BCBA oversight. Nor did she realize that in addition to the RBT, there would be a certified teacher present. When questioned about her notes surrounding the ESY observation, spe cifically her c omments that there were no token b oards ut ilized and no BCBA p resent, she admitted that the program that she observed would not have been the same for Z.M. as his would have b een individualized. She also agreed that based upon her own notes , which were contrary to her testimony, there was token boards in the room. Additionally, she did not know the needs of the childre n that were present, therefore , she was not qualified to say whether BCBA supervision was required. Regarding her testimony wherein she cr iticized the level of supe rvision during her fall observations of the “Sp ecials” classes – specifically, the lack of a special education teacher in the gym class, she agreed that her testimony was contradicted by her husband’s notes but went on to state that she herself did not see a teacher. When questioned about Z.M.’s May 2018, progress report fr om SHLI, T. M. stated that s he wa s aware tha t Some rset Hill s had started intro ducing her s on to

OAL DKT. NO. EDS 03237-19 47 “group” a couple of months prior. (J-10.) As of June 2019, Z.M. had been introduced to multiple small group programs, some of which included typical peers, and that he ha d mastered several skills. Whil e she felt that SHLI were experts in their field, however, did not hold the same level of confidence about the District. When pressed, T.M. sta ted that she does not believe her son is ready for a less restrictive program at this time. No one has told her that h e is ready, and she has little faith in what the District says. Kevin Br others, Ph.D., B CBA-D, (Dr. Brother s), the Executive Director at SHLI, te stified on behalf of the petitioner. He was qualified without objection and testified as an expert in the a reas of Autism, ABA and the Development of Educational Programs for Students Using Applied Behavior Analysis. He is very familiar with the Guidelines, which are g eared towards the tre atment of individuals with autism. He himself has been wo rking with individuals with autism for the past thirty-five years. In describing autism, he stated that it was a disorder of the brain that can affe ct all areas of development. He went on to state that it can be seen in four problem areas or “umbrella s” as he characterized them - language, cognitive or academic or pre-academic, social skill deficits and behavioral control issues. According to Dr. Br others, chi ldren with autism require a different type of i nstruction than t heir typically developing pee rs. He analogized th e BCBA’s role to that of an optician – understanding how to magnify the antecedent vari ables and t he consequent variables around a given skill and to figure out the right magnification of those variables until they work. Using s cissor skills as the e xample, he described how a chi ld would be systematically prompted to master the skills nece ssary to us e scissors and cut on a line. In describing ABA, he stated that it was a discipl ine which focused on the analysis, de sign, implementation and evaluation of s ocial and other environm ental modifications to produce a meaningful change in human b ehavior. I t can help reduce problem behaviors and/or wor k on skil l ac quisition such as readin g an d wri ting.

OAL DKT. NO. EDS 03237-19 48 Individuals wh o are properly trained and cred entialed c an te ach ABA. The qualifications are different for each level of licensure. For instance, an RBT required a high school degree. However, a BCaBA is a Board-Certified Assistant Behavior Analyst and requires a bachelor’s degree. A BCBA requires as master’s degree and the BCBA- D, is a Board-Certified Behavior Analyst – Doctoral. According to Dr. Brothers, the BCBA role is to engin eer the e nvironment to produce t he de sired socially significant behavior change. It is ab out creating antecedent and consequ ent variables which was the ro le of the BCBA or BCBA -D. He went through the four core characteristics of ABA as well as the sev en dimensions. (P- 47, Pages 10 – 11.) He also discussed the eleven essential practice elements of ABA. There are two identif ied AB A treatment models – Focused ABA and Comprehensive ABA. The Compr ehensive ABA program, which is w hat the SHLI offers, provides up to thirty to forty hours of one-to-one direct treatment to the s tudent weekly. The intensity of the instruction was im portant to produce a positive outcome. With the number of ho urs of inte nse instruction, high levels of supervision - both direct and indirect, were necessary by the BCBA. In describing the differen ce b etween dire ct supervision versus indirect supervision, Dr. Brother stated that direct supervision meant that the BCBA was in the classroom, directly observ ing and ensuring that t he program was being followed. Indirect supervisio n involves among other things, analysi s of the data, teaching the instructors on what to do, coordinat ing care, writing progress notes or p rogress reports that evaluate the data and making the necessary pr ogram changes depending on t he data. All of this r equires a s ignificant a mount of time f or each student . Under the Guidelines, the re commended “dosage” of ca se supervisio n was two hours of supervision for every ten hours of treatme nt. If a child receive d thirty t o forty hours of treatment weekly, the BCBA supervision would equate to between six to eight hours per week. Given the time commitment, the recommen ded caseload fo r a BCBA who operates without support should be between six to twelve students.

OAL DKT. NO. EDS 03237-19 49 In describing the SHLI, Dr. Brothers stated that the school, which is an approved school by the New Jers ey Department of Educatio n, is exclusively for children with autism an d can provide se rvices for up to thirty children. Thirty students currently attend the scho ol, twenty-nine of which were placed by the student’s sending District.2 On staff, SHLI has six BCBA’s which is a ratio of five students to every BCB A which is well within the Gu idelines. The BCBA’s are on site daily an d provide both direct a nd indirect supervision to the children and caretaker training both in the sc hool and home setting. According to Dr. Brothers, ch ildren that are referred to SH LI go throug h a screening process to en sure that the school would be ab le to meet their needs. The school offers serv ices to children from diagn osis up to the age of twen ty-one. If students advance to t he point that they can mainstream back into the District’s school system - which is one of their goals, they would help facilitate the transition. SHLI staf f m embers, including himself, work dir ectly with the refer ring District’s case manager in developin g an IEP for the stu dent. The IEP is typically de veloped about a month after t he student starts attending SHLI which allows the i nstructors an opportunity to get to know the student and work with them and allows the SHLI staff the ability to better understand their needs. Dr. Brothers went on to st ate that the school h as six c lassrooms. Four of the classrooms provide a one-to-one teacher/student ratio, the other two classrooms have five stu dents and f our teach ers – so almost a on e-to-one ratio. Each teacher is assigned three to five IEP objectives that they are respon sible to teach. The students rotate teachers every forty -five minutes to promote gene ralization of s kills. E ach classroom has at leas t one cer tified teacher. For every five students in the classroom, there is a BCBA that consults wi th the teacher(s). Further oversight is also provided by other instructors wh ich include a m asters level b oard-certified behavior analyst and himself. 2 Z.M. was unilaterally placed by his parents.

OAL DKT. NO. EDS 03237-19 50 Each student has a “data notebook”. (P-52.) It is divided up by IEP goals and objectives. Behind ea ch section are four elements – graph or visual display of the student’s progress, response definition, measurement section, and a teaching section. Dr. Br others we nt on to state that w hen a child first st arts at the school, they typically start with one -to-one teaching. Th is is be cause the c hildren are usually younger and have lea rning histories that are com plicated – meaning that they have learned the wrong things. An example of learning the wrong thing would be pulling hair to get a glass of milk or learning a mispronounced word is the way to say the word. To correct this, th e school provides direct instruction on foundational skills which are necessary for th e child to prog ress. Once it is determin ed what foundational skills are lacking, they are worked on both at sc hool and in the hom e environment for consistency and reinfo rcement. When a student is deemed read y to progress to, for instance, a group learning situation, they do so with other studen ts who also attend t he school and are autistic. T his is because the c hild/children still require a lot of support, prompting and rewards which could be in t he form of candy or a token. Also, in itially, the childre n may not have the ge neralization of dire ctions yet - such as sitting still, imitating prom pts or looking at a pe rson. When intro ducing a student into a group setting, the school follo ws the Guidel ines by int roducing the child into a s mall group setting and gradually build them up to a larger group. Dr. Brothers has known Z.M. since birth. He is familiar with th e family because Z.M.’s sister, J.M., who is also autistic, attends the SHLI. Z.M. was enrolled at the SHLI in 2017/2018 school year when he attended the EI program. H e was not quite three - years-old at the time. When Z.M. first start ed, he was delayed in a variety of ways such as his pace of responding, lack of interest and focus o n his own agenda, lack of verbal skills to name a few. According to Dr. Brothers, he required a comprehensive ABA progra m from the start – receiving betwee n thir ty to forty hours a week of ABA instruction as well a s

OAL DKT. NO. EDS 03237-19 51 caregiver instruction to his parents wh ich initially occurred on the average eight or nine times a month. All of this was ch arted to track his progress. (P -69.) He did not start participating in any type of gr oup session until January 2018 , which was w hen he started in ten minute sessions with two other students. Prior to that he was in a one-to- one instructional setting and receiving home programming. In discussing Z.M .’s January 2018 , progress re port, Dr. B rothers went through the identified goals of which ther e were nine, and their respe ctive objectives. Many of the goals (i.e. discrimination skills, direction following skills, demonstrate imitation skills, etc.), we re foundational to mor e adva nced learni ng. He also went through Z.M.’s performance on a coupl e of the goals. The progress report covered Octobe r, November, Dece mber 2017, and most o f J anuary 2018 , and Dr. Bro thers noted that from the start, Z.M.’s level of need was tremendous at the foundational level. When Z.M. started in group s ession in Jan uary 2018, there were three children including him. Z.M. was still one-on-one and the o ther two children shared a teacher. A token economy syste m was utilized which was a way of deli vering positive r eward consequences and was frequently deli vered to Z.M. Starting in February 2018 , and over the ensuing mo nths, the teacher started fading back two feet behind Z.M. to s hift the control to the group leader. While Z.M. was making progre ss, he was not re ady to be moved into a less restrictive en vironment. A ccording to Dr. Brothers, when a student is ready t o be transitioned, the re is a process to facilitate it. The pa rents are brought on board and then t he schoo l district is contacted a nd inv ited to tak e a look at the data and SHLI recommendations to start the transition process by setting up goals for the transition. SHLI works with the scho ol in identifying, for instance, the best teacher to supp ort the student, a classroom that has a smaller number o f students, a classroom with an aide etc. This dialog ue and transition occur mon ths before the child act ually starts in the District. When t he child starts in the Dis trict, a SHLI staff member will initially sit in the classroom ensure that t he programm ing gets off to a good start. Z.M. was no t anywhere near that point.

OAL DKT. NO. EDS 03237-19 52 Dr. Brothers also went through Z.M.’s May 2018, progress report. (P-10.) At that time, he was showing progress and also master ing some of the foundational skills that were necessary for more advanced learning. He was also showing some generalization but even that continued to need work. Out of a six hour day, Z.M. participated in a one ten minute group activity per day. Accord ing to Dr. Brothers, Z.M. continued to n eed a Comprehensive ABA program and was not ready to be wit h typically developing peers for any p ortion of his day. This w as consistent with the Battelle results of June 2018 , wherein his peer interaction skills were for the most part non-existent. (J-13.) He recalls when the District s taff came to SHLI to observe Z.M. who was still thirty hours of one-to-one ABA instruction and two hours of BCBA supervision for every ten hours of ABA instruction. At no time did the observers ask if Z.M. was ready for an inclusion classroom with typical peers or what his educational needs were. Z.M. remained at SHLI thr ough the summer and the follow ing school year of 2018/2019. He had turned three -years-old by then. Over the summer of 2018, Z.M.’s group ti me decreased to five minutes a day because he was not i mitating his peers appropriately and was engaging in disruptive behavior. His token economy system was changed s o that he could receive more rewards for behavioral com pliance. In September 2018, Z.M .’s teachers started working on the skills and directio ns that he was not following well in the group setting. In looking at his September 2 018, progress report which covered the prior four months, Z.M. once again made pr ogress, however, still h ad areas of need w hich necessitated a Comprehensive A BA program an d high level of BCBA supervi sion. (J- 28.) In Dr. Brothers’ opinion, despite Z.M.’s progress, he was not ready for a half a day in an inclusion classroom as he still required the one-to-one instruction to lear n skills necessary to, for instance, participate in a group lesson. Over t he en suing month s, Z.M.’s t ime in group i nstruction incr ementally increased back up to ten minutes a day, however , the frequency of rei nforcement

OAL DKT. NO. EDS 03237-19 53 remained high. (P-69.) In looking at Z.M.’s January 2019, progress report, Dr. Brothers once again noted the progress that Z .M. had mad e. However, in going through his goals and objectives, he again noted that Z.M.’s level of need s in several areas were still significant. (J -36.) Foundational skills we re still being worked on at the time but had become more sophisticated. According to Dr. Brothers, if Z.M. had been placed in an inclusio n classroom, he would have been isolated because he onl y focus es on himself and would not have been engaged. Also added over the ensuing months were other forms of “group” s ettings. For instance, in Fe bruary 2019 , a “l unch” group or session was introduce d into Z.M.’s program wherein he was taught a variety o f skill s such a s eat ing ne w foods wit hout gagging or protest, using a napkin and utensils, drinking from a cup etc. In March 2019, board games, story time and arts and crafts were also added. For thi s activity, there was one teacher for every two student s which allowed for group-oriented in struction, story comprehension, fine motor skills and playing board games with classmates In May 2019, Z.M. st arted to attend trip s to the local li brary for story time. According to Dr. Brothers going to the library f or stor y time i s one way to gauge a student’s generalization skills and ability to a cquire s kills under a less structure d environment. In Z .M.’s ca se, he was observed e ngaging in a vari ety of off -task behaviors such as lying on the floor, grabbing toys an d not i nteracting with his peers. Based upon these observations as well as Z.M.’s ov erall progress, it was apparent that Z.M. still required a more structured environment and was not ready to be in any type of group instruction - including small group instruction with typical peers. Dr. B rothers testified that he was aware that the Di strict c onducted another observation of Z.M. on various dates in March 2019, and thereafter generated a report. (R-54.) He was also aware that one of the comments in the report stated that Z.M.’s main su pervisor in the classroom, while having completed the requisite training and coursework, had not yet passed the BCBA exam. According to Dr. Brothers while that was an accurate statement, what was omitted was the fact that there were two BCBA’s that oversaw Z.M. ’s overall program. Comments as to data collec tion wer e also

OAL DKT. NO. EDS 03237-19 54 erroneous. The Distr ict reported th at data was only b eing collected once or twice a week for a majo rity of Z.M. ’s program. Dr. Brothers stated that that was not SHLI normal practice as they collect data at least once a week and at most onc e a day, with a majority of the prog rams getting collected two or three times a week . He was also non-plussed by the District’s comments that at times students in crises had to be taken out of the classroom b y the classroom supervisor. He did not feel th at this impacted Z.M.’s programming needs which at all times were being met by the r emaining highly trained staff m embers. Reg arding Eby’s comments about the level of BC BA supervision observed, he felt that t he numbers were intentionally misleading becaus e Eby’s observation was over a perio d of three days, n ot o ne. He als o vehemently disagreed with Eby’ s representati on that SHLI concurred with the District that Z.M. would benefit from part of his school day spent in an inclusion classroom. He did ag ree however, with the District’s com ment that Z.M.’s biggest deficit so far has been his ability to generalize his acquired skills to new materials, settings, peers and adults. To him, t his suggests that Z.M. was not ready to be in an inclusion class - cautioning that if the structures that have hel ped Z.M. succeed to date were peeled away too rapidly, h is performance w ould decre ase – a fact which he believed h ad already been evidenced. Review o f Z.M.’s Ju ne 2019 , progress report revealed that Z.M. continued to show progress for the remai nder of t he scho ol year – progressing to the poi nt that several of the programs were discontinued as he had met the criteria. (P-64.) In discussing the Z.M.’s 2019 summe r program, he stated that Z.M. attended , with a staff m ember, a local daycare with typically developing peers, for ten days, four hours a day. It was a social, i nstructional and recreational program and provided SHLI an abi lity to see their stu dents in a different teaching environment in a larger group setting. Z. M. participated in, am ong other things: swim time - which was structur ed; recess, whic h was unstructu red; and story time which was in a group setting. Throughout this time, data was c ollected and graphed - the goal being whatever areas required atte ntion would be addressed bac k at SHLI. (P-68.) Ac cording to Dr.

OAL DKT. NO. EDS 03237-19 55 Brothers, the purpose of ha ving Z.M. atte nd the daycare was not due to his readiness to be in an inclusion classroom as part of his school day, rather it w as his readiness to evaluate his responsiveness to a looser set of teaching conditions. In look ing at the data on Z.M. from th e summer daycare program, his results varied. For instance, on following directions over the cours e of the te n days, he was able to do so thirty percent of the time which was significantly below what he had been able to do at SHLI. When as ked to do something such as “get your books” or “line up”, he averaged thirty -five to forty percent of the time. Z.M.’s “on task” during an activity was about sixty percent. The peers in the group averaged in the low eighties. Another example was the pl ayground session , which was a n unstructured environment t hat provided Z.M. zero prom pting. Z.M. was for the most part was i solated and did not initiate interaction with other chi ldren nor did he respond to their efforts. All of the data again supported the conclusion that Z.M. was not ready for an inclusion setting. Throughout the summer, Z.M. c ontinued to pa rticipate in a small g roup session ten minutes a day. At one poin t they attempted to remove t he token board and also introduce a new teacher , however, there was a marked d ecrease in his performance. As a result, the token system was reintroduced. According to Dr. Brothers, even with all of the progress that Z.M. had made throughout the 2018/201 9 sc hool year, he was not ready f or a half -day i nclusion classroom in September 2019. He still required a Comprehensive ABA progra m with a high level of BCBA sup ervision. He was, however, introduced to a local preschool two mornings a week in November 201 9, to “test” the waters – see what his needs were and address the m. A SHLI staff member went with him to take data and assist Z.M . if needed. In the afternoon he returned to SHLI where his instructors continu ed to work on his goals and objectives. On cro ss-examination, Dr. Brothers was questioned abou t his credentials and when he received his BCBA. In response he stated that it was in 2013 when he w as the Executive Director of SHLI. He acknowledged that pr ior to obtaining his BCBA, he

OAL DKT. NO. EDS 03237-19 56 was supervising ABA programs. He clarified, however, that the BCBA credentialing did not exist at the time. He was also asked about his comment s regarding programming that is “socially valuable to the consumer” and whether th at means programming requested by the parents. In response he said “yes”. He acquiesced that SHLI goal should be t eaching preschool skills so that it s students can transiti on into a l ess restrictive environm ent such as public schools. He also recognized that typical peers in a classroom add value According to Dr. Brothers, SHLI does not conduct any standardized testing when a student is enrolled. He has never seen the pr oposed IEP for Z.M. and he could not say one way or the other whether the proposed IEP offered Z.M. a FAPE. When questioned how often, under the Guidelines, the BCBA neede d to be in the cl assroom, h e conceded that the Guidelines were silent on th at point, but he believed it should be d aily. He pointed out, however, that there was a ratio of time of how much supervision was requi red for every ten h ours of ABA i nstruction. Wh en questioned on this poi nt, he acknowledged that the supervision could be direct or indirect s upervision with indi rect superv ision taki ng place outside of the classroom setting. It was his position, however, that a majority of the supervision should be direct supervision but subsequently conceded that it should be based upon t he individualized needs of the student. In identifying t he prerequisite skills necessary for group learni ng, Dr. Brothers stated that the necessary ski lls included: ability to foll ow directions – individual and group; operate from increasingly delayed r einforcement contingencies - more social rewards than teacher-engineered rewards; ability to generalizes ski lls (language, academics, be havior, social); a nd ability to operate from in creasingly abstract presentation of materials. He went on to state that Z.M. started group learning with s upport in a s elf- contained setting in January 2018. Z.M. had many of the prerequisite skills that he (Dr.

OAL DKT. NO. EDS 03237-19 57 Brothers), had previously identified suc h as some ability to ope rate with a delay in reinforcement; the ability to control behavior; and the ability to wait for his turn to some extent. When questioned about Z.M.’s May 2 018, progress report, he conceded that Z.M., w ho w as a little over two-and-a-half-years-old at the time of the report, had mastered indep endently sixty-five one-step directions since the impl ementation of the program and was working on two -step directions. (J-10.) He also agreed that by the following February 2019, in addition to the small group learn ing, group lunch had been added which was about forty -five minutes long, and board games, story time and crafts with other students which was an additional fi fteen to twenty minutes. Th ere were also the library excursions in May 2019, which according to D r. Brothers based upon Z.M.’s performance, demonstrated that Z .M. was not ready to be in any type of gro up instruction. In questioning him about the discre pancies of reporting between the June 2019, progress report w hich stated tha t Z.M. had a ninety -six percent gen eralization of working in a group setting such as the library (P-64) and his (Dr. Brother’s) chart (P-69) which indicated tha t Z.M. was unable to s tay “on task” at th e library, he stated that the sampling of data was in e ssence a snapsh ot in time and that h e would have to look at the data close r. However, Dr. Brothers did acknowledge that Z.M. appeared to have had a successful level of observed intervals of being “on task” at the library. When asked whet her Z.M. was ever placed in a n envir onment where h e was side by side in a small group ac tivity wit h typica l and special education peers, Dr. Brothers pointed out that Z.M. at tended the loca l dayca re in the Summer of 2019. When questioned about the level o f support provided while at d aycare, he acquiesced that the staff member was not an RBT nor did the SHLI look to see how their program could be implemented in that environment. Dr. Brothers was also asked about the preschool that Z.M. started attending in November 2019. According to Dr. Brothers the school is a private school and attended by typically devel oping peers. He did not know what the teacher’s credentials were other than the teacher was a certified pres chool teacher and most likely not trained in

OAL DKT. NO. EDS 03237-19 58 ABA. A sta ff member acco mpanies Z.M. to school, however, they are not an RBT and are only there to take data and assist Z.M. if needed. In questioning Dr. Brothers if the District ’s model for introducing Z .M. i nto an inclusive environment which included a side by side along with BCBA oversight was an appropriate model for Z.M. to move towards a least restrictive environment, he stated that it was a step in the right direction. In directing Dr. Brothers attent ion to the June 2018, Battelle, he was questioned about his comments that Z.M. was needy and developmentally delayed despite the fact that some of his scores, fell within the average range . In response Dr. Brothers pointed out that some of Z.M. ’s scores in the “Personal-Social” section fell well below average. (J-13.) Dr. Brothers was al so asked about the twelve exit criter ia for leaving SHLI and transitioning into a less restrictive environment . In response he stated that not al l criteria needed to be met before a child could leave the s chool and even if they were met, if the parents wanted their child to stay at SHLI, the y could. In Z. M.’s case, even though he was aware of what the District was proposing, no one from the District asked to meet with him them; opened up a dialogue as to Z.M.’s progress; or asked to see his data. Dr. Bro thers repeatedly commented that ultim ately it was up to the “consumer” (parents). If the parents agreed, then SHLI would tr ansition Z.M. i nto the District. According to Dr. Brothers, transitioning commenc es months in ad vance of the mo ve. He did not recall seeing the District’s proposed transition plan. In discussing the credentials of the individuals who provide services at the school, Dr. Brothers state d that w hile fin e motor skills and co mmunication skills were worked on in the classroom, the servi ces were not provided by a certified speech therapist or certified occupational therapist. Instructors in the classroom all have bachelor o f arts degrees and there i s at lea st o ne in structor in the room wh o is a certified teacher for every classroom of five children. He does not know what training or qualifications the District teachers have or who would have worked with Z.M. under the

OAL DKT. NO. EDS 03237-19 59 proposed IEP. He also acknowledge d that under the Guidelines, an RBT c ertification requires a high school degree, not a college diploma. Dr. Brother s was a lso ask ed about the main supervisor , Colby Roebuck, in Z.M.’s room in the 2018/2019 school year – more specifically, if she was a BC BA. In response he stated that she had taken the requisite course wo rk and was qualified to take the test but had not yet d one so at that time. He went on to state that he and another BCBA oversaw her. He was also que stioned about the Guidelines caseload recommendations for a BCBA of si x to twelve chi ldren if they are receiving comprehensive treatment and whether the BCBA could also provide services to other students who do not require the same treatment regimen. In response, Dr. Brothers agreed that it was feasible that a BCBA could work with other students at the same time. Dr. Brothers was also asked about his commen ts that one of the reasons that Z.M. wasn’t ready for a n inclusion set ting was because of his tok en system and that it would look odd to typically developing peers. More specifically he was asked if he was aware that a token system is quite often used in kindergarten classroom. In response he stated that he would not be su rprised ,however, felt that an autistic child would be stigmatized because they were using a token board. This was based upon his years of experience not research. He was also questioned about the goals that we re set for Z.M., specificall y the waiting progr am due to the parent’s concern ab out elopement. According to Dr. Brothers, because of the str uctured classro om, and the ABA trained professionals working with him, they did not hav e an elopement issue with Z.M. Nor did they have an issue with aggressive behavior or tantrums at scho ol. In discussing the class ma ke-up, Dr. Brothers stated that there were no other children the same age as Z.M. in his class, however, to him, age was less relevant than similarly skilled children. Discussion:

OAL DKT. NO. EDS 03237-19 60 It is the dut y of the trier of f act to weigh each witness’s credibility a nd make a factual finding. Credi bility is the value a fact f inder assi gns to the testimony of a witness, and it contemp lates an overall assessment of th e witness’s story considerin g its rationality, consistency, an d how it comp orts with other evidence. Carbo v. United States, 314 F.2d 7 18 (9th C ir. 1963); see In r e P olk, 90 N.J. 550 ( 1982). C redibility findings “are ofte n influ enced b y m atters such as o bservations of the character and demeanor of witnesses and com mon human experience that are not transmi tted by the record.” State v. Lo curto, 15 7 N .J. 463 (1999). A fact fi nder is exp ected to base decisions on credibility on his or her common sense, intuition or experience. Barnes v. United States, 412 U.S. 837 (1 973). A trie r of fact may reject testimo ny because it is inherently incredible, or because it is inco nsistent with other testimony or with common experience, or because it is overborne by other testimony. Congleton v. Pu ra-Tex Stone Corp., 53 N.J. Super 282, 287 (App. Div. 1958). After hearing the testimony and reviewing the evidence, I mak e the following FINDINGS of FACT: Dr. Brothers and Dr. Hoch were highly knowledgeable in their respective fields of expertise; however, after hearing their t estimony I believe that re gardless of what program the District put forward for Z.M. – even if it was i dentical to wh at SHLI was providing – they would have been critical of th e District’s program, and opine that continued placement at the SHLI was in Z.M. ’s best interest. As such, while given weight, their testimony and opinions were counterbalanced with the perception that they were biased. As an exa mple, Dr. Hoch went into great detail about the Guidelines and recommended dosages. According to Dr. Hoch, based upon Z.M.’s needs, he required a comprehensive treatment program which called for thirty to forty ho urs of ABA instruction. Under the Guidelines, this called for two hours of BCBA oversight for every ten hours of ins truction. Dr. Hoch initially testifi ed that the July 2018 , IEP was inadequate for among other things , failing to provide Z.M. with the necessary ABA

OAL DKT. NO. EDS 03237-19 61 programming. In ac tuality, t he IEP did call for the re quisite number of program ming hours as well as pare nt training and transitioning – all of which were consistent with what she had recommended in her January 2018 report. Another criticism to note was Eby’s breadth of responsibilities in the District. When questioned about h er own practi ce, Dr. Hoch acknowledged that she provided various services for upwards of thirty to forty st udents and at the same time , had her own private practi ce wherein she would provide treatment to five autistic students at a time. Dr. Hoch also stated t hat the three hours of B CBA oversight in the IEP , particularly when it w as in direct supervision , was i nappropriate. However, when questioned on this, she acknowledged that the Guidelines were not only si lent as to whether the BCBA oversight needed to be direct versus indirect and that the Guidelines were created for insurance purposes. Dr. Hoch further testified, without knowing what credentials the District’s teaching staff held, that all of Z.M. ’s “instructors” should have, at a mi nimum, a college degree. This statement was made without support, was contrary to the Guidelines requirements, and clearly, if not i ntentionally, coincided with the unique credentialing requirements of SHLI instructors. Dr. Hoch also test ified th at Z.M. was not ready for group instruction in either a self-contained classroom or inclusion classr oom as prop osed by the Distri ct. Yet, he had been participating in a group setting at SHLI since January 2018 . Add itionally, in February/March 2019, Z.M. started participating in forty-five-minute group lunch, board games, story time and crafts with ot her student s, which encompassed an additional fifteen to twenty minutes. He also attended library trips, where it was reported th at he had a ninety -six percent generalization. When this was poi nted out, Dr. Hoch circled the issue stating that even if that were true, it would not cha nge her opinion because other factors such as further observations , review of other data , and staff interviews would have to be taken into consideration.

OAL DKT. NO. EDS 03237-19 62 It appeared that Dr. Hoch’s reports were subjective from t he start and cle arly focused on justifying why SHLI was the appropriate placement for Z.M. This lack of objectivity was evident in her first report, wherein she recommended that Z.M. remain at SHLI, yet had no i nput or insight as to what the District would have provided him. This subjectivity was s een again w hen she reported which credentials Z.M.’s instructors should have or t he type of BCBA supervision he required; however, she acknowledged on cross -exam that such credentialing and BCBA oversight were not required or inconsistent under the Guidelines. She also testified that even if an identical program w as offered , it would be inappropriate to remove Z.M. from the SHLI program. Likewise, Dr. Brothers ’ testimony appeared to be agenda dr iven. He testified that Z.M. was not ready for small group instruction. H owever, according to Z.M.’s progress reports and Dr. B rother‘s own testimony, Z.M. had been in a sma ll g roup setting si nce January 2018. This continued over the ensuing months with Z.M.’s instructor systematically fading bac k and Z.M. remaining on task. By the following February/March 2019, Z.M. was not only participating in small group instruction, but also participating in a forty-five-minute group lunch , board games, crafts, story times and games which was an additional fifteen to tw enty minutes, and going to the library for story time. Regarding the library so journs, Dr. Brothers stated that due to Z.M.’s inability to stay on task and ge neralize, it r einforced his position that Z.M. still required a more structured environment and was not ready for group instruction – including small group instruction with typical peers. This statement was belied by the progress report for that time period which found that Z .M. had a ninety -six percent generalization of working in a group setting such as the library, and had in fact mastered a number of the goals that had been set - to the point that some of the programming had been discontinued.

OAL DKT. NO. EDS 03237-19 63 Dr. Bro thers also testified that in the Summer 2019, Z.M. attended a local daycare for t en days in the Summer of 2019 . The data which was collected a gain supported the conclusion that Z.M. was not ready for an inclusion setting. On cr oss-examination, he acknowledged that , just like the libra ry, the staff member who attended the session with Z.M. was there to collect data only and was not an RBT. He did not know what the credentials of the classroom teacher were, nor was there any effort on S HLI to implement their programming in that setting – once again, the staff member who at tended the daycare with him was there for data collection only. He also acknowledged t hat what the District was proposing – i.e. introducing Z.M. into an inclusive environment with an RBT along with BCBA oversight was an appropriat e model for him to move into a least restrictive environment. He also admitted that he had never seen the proposed IEPs and therefore could not say one way or the o ther whether they provided Z.M. a FAPE. He also testifi ed about pre-requisite skills that were necessary for a student to participate in group l earning. When q uestioned about the skills necessary, h e acknowledged that Z.M. had many of the prerequis ite skills in January 2018, which was when he started in a small group setting. When questio ned about the Guidelines and his testimony that a BCBA n eeded to be in th e classroom daily, he acquiesced that t he Guidelines were sil ent on that point. However, it was his belief that a majority of sup ervision should be direct, which was w hat SHLI offered. He subsequently acknowledged, however, that it sho uld in actuality be based on the individualized needs of the student. I found that T.M. testified credibly and has a significant amount of parental experience in dealing with children with autism as h er oldest child is also autistic. However, no two children are alike . There is no question that the petitioners have the best interest of their child at heart. T.M. was very candid in her te stimony that she had little to no faith in th e District given their experience with the District and how t hey handled their daughter. Therefore, her views and testimony have to be ta ken in that

OAL DKT. NO. EDS 03237-19 64 context. T.M. was also quick to criticize perceived deficiencies by the District - such as Eby not being present at the Identification Meeting or that a draft IEP had been prepared prior to the IEP meeting. When qu estioned on some of these po ints, she acknowledged that the District would have been remiss had they n ot come with a draft IEP and she was unaware that the District had not been placed on notice that Z.M. was autistic at the time of the Identifica tion Meeting. She also felt that th e IEP’s did not take into co nsideration Dr. Hoch’s recommendations but failed to realize that most of her recommendations were in the IEP s a nd that the District was o ffering ABA instruction throughout Z.M.’s day with BCBA oversight. I found that Eby and Lilly knowledgeable in their respective fields a nd testified credibly as to what was taken into c onsideration in de veloping Z.M. ’s IEP once the information was received.3 This included among other things, review of Z.M.’s progress reports, program book, Dr. H och’s evaluations and re commendations, tests, and observations. The District however appeared to be consistently placed at a disadvantage in developing Z.M.’s IEPs as critical information from SHLI was not timely provided (i.e. progress reports) or not provided at all (i.e. teacher input form). Feedback from the petitioners was also dilatory. During the initial IEP meeting, which was taped, the District repeatedly asked the petitioners if they had any questions and on multiple occasions told the petitioners that the proposed IEP was a breathing document and that their feedback was welcome. Understandably the petitioners wanted an opportunity to digest the proposed IEP and also asked for an opportunity for both the petitio ners and Dr. Hoch, to observe the ESY program, the inclusion classr oom and a self-contained classroom. Those observations t ook pla ce in Augus t 2018 , Se ptember 2018, and October 2018. 3 Eby, who at the time of her testimony was pregnant and imminently due to go out on maternity leave, testified that the District was hiring an outside contractor while she was out o n leave. Petitioners in their case in chief, introduced a job posting for Eby ’s job that was dated July 8, 2018 - two days prior to her testimony. Petitioner asserts that Eby’s overall credibility should be questioned given the perceived lack of candor. I disagree and FIND that insufficient information was presented to make such a quantum leap . Even assuming Eby had provided notice prior to the hearing and was aware that her position had been posted, it did not affect the substance of her testimony which related the appropriateness of the proposed program.

OAL DKT. NO. EDS 03237-19 65 However, feedback was not provided until December 2018 which was when Dr. Hochs’ report was turned over - two month s after her last observ ation. Upon re ceipt, the District revised the July 2018 , IEP. Notably, the p etitioners created detailed typed observations which were a llegedly prepared contemporaneously with the visits months prior and were curiously signed by the petitioners, but were never s hared w ith the District until the eve of trial . Given the comments/concerns that were raised, some of which, by T.M.’s own admission, were assumptions without foundation, one must pause to consider the underlying r ationale for the ir prepar ation and goes t o an ov erarching perception that petitioners d id not have any intention of sending Z.M. to the Distri ct system. With the above in mind and upon giving due consideration of the testimonial and documentary evid ence presen ted at the hearing, and h aving ha d the o pportunity to observe the demeanor of the witnesses and assess their credibility, I FIND the following as FACTS: At the age of eight-months-old, Z.M. was found eligible for EI services in the form of physical therapy due to his inability to sit up independently. When Z.M. turned one- year-old, EI added a se ssion of developmental inter vention because he was not yet pointing t o objects. In November 2016, Z.M. was re -evaluated by EI usin g the Developmental Assessment of Young Children. The re sults showed a delay in Z.M. ’s expressive and receptive language, and fine and gross motor skill s. He wa s subsequently referred to a neurodevelopmental pediatrician (Dr. Farrell). Dr. Farrell examin ed Z.M. on January 31, 2017 . He was sixteen-months-old at the time. She diagnosed Z.M. with ASD, without intellectual impai rment a nd with language impairment.4 Dr. Farrell further found tha t Z.M. requ ired support for socialization and substantial suppor t for communication. She recommended that Z.M. receive twenty-five to thirty-five hours of ABA and parent training with a BCBA. 4 On page 5 of the report, the notation under ICD-10-CM ICD-9-CM is stated 1. Autism spectrum disorder, requiring substantial support, without accompanying language im pairment, with out acco mpanying intellectual disability; 2. Receptive-expressive language delay; 3. Developmental coordination disorder; 4. Congenital hypotonia; 5. Family history of autism in sibling…

OAL DKT. NO. EDS 03237-19 66 In May 2017, when Z.M. was twenty-one-months-old (1.9-years-old), petitioners enrolled him in the SEARCH program where he received ABA programming. EI Services were discontinued at that time. Thereafter, in October 2017, when Z.M. was twenty-six-months-old (2.2-years-old), petitioner’s enrolled Z.M. in a pilot program at the SHLI, the same school that his sister, who was also autistic, attended. By January 2018, Z.M. had many o f prerequisite foundational skills f or h im to start participating in a small group setting. In March 2018, based upon a January observation and reports received a couple of months prior, Dr. Hoch prepared a cons ultation report in which s he identified Z.M.’s specific ar eas of need to be: receptive and expressive lang uage; social interactions skills; remaining engaged and focused; coping with distractions and changes in routine; eating a variety of foods appropriately; and functioning outside of typical cla ssroom and home routines. The report outlined twelve essential comp onents of programming that Z .M. should continue to receive.5 In a report generated by Dr. Farrell on May 14, 2018, Z.M., who was thirty-three- months ( 2.9-years-old) at the time, was diagnosed with ASD requiring substantial support, without accompanying intellectual impairment, without accompanying language 5 The twelve essen tial co mponents identified included: 1) A behaviorally -based e ducation pr ogram designed to addres s skill deficits a nd beh avioral challenges and guide all areas of programming wi th fidelity; 2) A for mal behaviorally-based teaching curriculum that contains systematic programs to address skill deficits and behavioral challenges in all areas; 3) Full-time program supervision and staff training by a senior level BCBA; 4) A variety of r esearch-based teaching procedures to include teac her-directed interventions and child-directed interventions as well as o ther ABA based teaching techniques that have been empirically demonstrated to promote skill acquisition; 5) A full day of active individualized instruction; 6) A data-based approach t o instruction, to systematically evaluate the effects of teaching and tr eatment interventions; 7) A twelve month program; 8) Sp ecial E ducation te achers, instructors, and aides with specific training and educ ation i n ABA and education; 9) A systematic staff trai ning and supervision program; 10) A n active family consultation program; 11) Procedures to system atically increase Z.M. participation in small group instruction; 12) Systematic transition to less restrictive environments.

OAL DKT. NO. EDS 03237-19 67 impairment. He was a lso diagnosed with receptive expre ssive language delay, developmental coordination disorder, and congenital hypotonia. On this same date of May 14, 2018, petitioners met with representatives from the District, for the Initial Identification and Evaluation Planning meeting. At the time of the meeting, the District only had the information which had been provided by EI. They did not have the be nefit of Dr. Farrells report s in advan ce of the meeting and were therefore unaware that Z. M. was autis tic. Nor w as the District aware that Z.M. had been a ttending SHLI ’s Pilot Program since October 2017. No transitional planning meeting was held prior t o the Identification Meeting because t he District had been informed that the parents were already familiar with the program. The District was also unaware at the time , that Dr. Hoch had been retained by the petitioner s to render an opinion on the appropriate placement for Z.M. having received her report the day of the meeting. At the time of the meeting, it was decided that EI would complete the exit Battelle which was subsequently conducted i n June 2018. Z .M. had unde rgone tw o prior Battelle assessments, one when he was nine-month-old and a second one a year later. The D istrict had alread y been provid ed a copy of the assessments. Based upon the results of the assessme nts, Z.M. was classified as a “Preschool Child with a Disability” a determination which petitioners agreed with. His s cores year over year reflect ed a notable decrease in th e adaptive do main, sligh t decreases in perso nal/social do main and motor domain, and an increase in communication domain. The cognitive domain remained in the averag e range. Based upon the identified areas of weakness, additional te sting in speech/language an d motor w ere conducted as were home/classroom observations. A Social History was also obtained. Z.M. was observed at SHLI o n two dates - June 8, 2018, and June 11, 2018 , by Lilly and Eby. Total observation time was thr ee hours. Z.M. was the youngest in the class of fiv e which had a one-to-one t eacher ratio. A BCBA was also present who oversaw the instruction and worked with the staff members. During this time, Z.M. was observed following a pic ture schedule and independently retrieving h is task bas kets.

OAL DKT. NO. EDS 03237-19 68 He p articipated in circle time wher e a five-token reinforcement board was utilized . Circle time lasted ten minutes and usu ally had three students one of which included Z.M. A ten-token reinforcement board was utilized when working on hi s programs. Over the two courses of the two observat ions, Z.M. received a reward after working on his programs for an average of five minutes. The range of reward time was two to eight minutes. He repeated words and phrases when prompted and at times displayed some spontaneous language. He had six episod es of noncompliance; however, each episode was redi rected within thirty secon ds All obs erved so cial interactions and reciprocal conversations with peers required verbal prompting by the assistants. The last obs ervation occurred on J une 14, 2018 , when Lily went to petitioner’s residence and observed an EI OT session. During this session, Z.M. participated in several fine motor skill activities some of which required hand over hand support to help Z.M utilize both hands dur ing the activities. When distracted, which occurred a couple of times, Z.M . was properly redirected. He was able to transition smoothly transition from each task without a reward. When T.M. left his workspace, Z.M. did not scream or attempt to follow her which was apparently a recent improvement in Z.M.’s behavior. The following day, June 15 , 20 18, a Social History Evaluation was c onducted wherein T.M. was interviewed. Z.M.’s developmental history was provided as were his past and present programming. T.M. reported several concerns for Z.M which included among other things : eloping; increasing attention span in cl ass; non-compliance at school; language skills ; gross motor sk ills; problem b ehaviors; doctor’s appointments; self-help skills; eliminating stereotypical/repetitive behavior witho ut adult prompting , to name a few. The OT Evaluation was conducted on June 18, 2018. The examiner noted that Z.M. had difficulty following directions and attending to the tasks dur ing the evaluation. She administered the Peabody Developmental M otor Scales (PDMS-2) and also received fe edback from Z.M .’s teache r at SHLI who completed a sensory processing questionnaire. In review of the results, the exa miner found that Z.M.’s fine motor and gross motor skills were in the p oor range. Z.M.’s teacher at SHLI indi cated concerns

OAL DKT. NO. EDS 03237-19 69 regarding Z.M.’s sensory processing and impacts on cla ssroom performance on the sensory processing questionnaire which t he ex aminer indicated woul d n eed to be monitored once Z.M. entered the preschool program. The Speech and Language Evaluation was conducted on June 27, 201 8. The sources of information which were used as part of the evaluation included the Test of Early Language Development (TELD 3) Form A, the Battelle report results, oral motor examination, parent reporting and clas sroom/playground observation. The overall impression from this evaluation was that Z.M. demonstrated weakn esses in pragmatic language. His spontaneous l anguage was decreased. The eva luator reco mmended that Z .M. continue to be exposed to typically developing peers to fur ther develop his social skills competency. He also nee ded to build his self-regulation skills with embedded training throughout his day. On July 19, 2018, the Initial Eligibility Determination and Initial IEP meeting was held. The CST determined th at Z .M. was eligible for special education and related services under the classification of “Preschool Child with a Disability”. At the tim e, he was not eligible for ESY given his age, but he wo uld be in 2019. A draft IEP was presented to the petitioners at that time. It was based on all of the evaluatio ns, observations, standardized testing results, medical records and Dr. H och’s report that they had at the that time. While the SHLI staff members were sent teacher input forms a month prior and asked to f ill them out, they failed to do so. Instead, what was sent, the day before the scheduled I EP m eeting, were Z.M.’s progress reports. Given the lateness of the submission , the District was unable to incorporate their findings in to the draft IEP. Throughout the IE P meeting, the p etitioners were repeatedly asked if they had any questions and informed that the document would and could be modified based upon their feedback and after the District had the opportunity to review Z.M.’s progress reports. The IEP called for a split day with Z.M. in t he self-contained special education preschool classroom for half of his day and an inte grated general education preschool for the remainder of h is day. It also called for a personal aid – an RBT, throughout the

OAL DKT. NO. EDS 03237-19 70 day (1x daily/375 minutes ). Parental counse lling and/or train ing servi ces two times monthly for si xty minutes (2x/monthly/60 min.). Individual O T two times every six day cycle for twenty minutes (2x6 day cycle/20 min), Group OT one time every six day cycle for twenty minutes (1x6 day cycle/twenty min), Speech/Language Therapy: group (not to exceed thr ee) two t imes every s ix day cycl e for twenty minutes (2x6 day cycle/20 min), Speech/Lan guage thera py: Individual one time eve ry six day cycle for twenty minutes (1x6 day cycle/20 min), special transportation with a bus attendant. Modifications include d: U se a consistent d aily routin e; provide a hi ghly structured, predictable learning envi ronment; use i nterests to increase motivation; simplify task directions, provide modeling; orient to task and pr ovide support to complete t ask; directions repeated, cl arified o r reworded; provide ind ividualized instruction; refocusing and redirection; main tain communica tion with h ome; use of a picture schedule; provide visuals along with oral directions; use of ABA techniques for data-driven instruction. Under “Supplementary Aids and Se rvices” the IEP again note d that Z.M. would be provided a RBT throughout the day in b oth environments ( self-contained and integrated classrooms) to ensure consistency and generaliza tion of skills in both settings; parent home training by the BCBA two times a month fo r an hour ; prompting and cueing and redirectin g student pa rticipation and positive reinforcement plan. The IEP also noted that ESY would be written into Z.M. ’s 2019-2020 IEP. Also incorporated into the IEP was a transitio n plan which involved meeting with SHLI staff members and facilitating his transition into the Whiton Elementary School. Behavioral interventions were also comprehensively set forth. Target behaviors that were identified were noncompliance and pushing tasks away. The IEP provided a description of the positive supports/interventions which would have been implemented. These included antec edent strategies (activit y schedule; priming; incidental t eaching procedures when possible); new skills (functio nal co mmunication training); consequence strategi es (token board, verbal praise, positive physical contact,

OAL DKT. NO. EDS 03237-19 71 naturalistic teaching procedures; prompting on negative beha vior). The frequency an d duration of non-compliant would be recorded and monitored. Data collection occurs. The IEP out lined eleven go als each with corresponding short-term objectives which addressed al l areas of Z.M.’s identified weaknesses/needs. Data collection on specific goals and targets would be obtained daily and thereafter graphed. The special education teacher, while not a B CBA, had fin ished all of the BCBA coursework. The IEP addressed most of the recommendations of Dr. Hoch , incl uding her recommendation that Z.M. be transitioned into a less res trictive environment when he was deemed r eady. It add ressed Dr. Farrell’s recom mendation that Z.M. receive twenty-five to thirty-five hou rs per week of ABA programming and it also , with limited exception addressed petitioners’ concerns. At the close of the July 19, 201 8, IEP meeting, petitioners requested an opportunity for themselves and Dr. Hoch to observe the ESY program and the inclusion and self-contained classrooms. With regard to th e ESY program, petitioners were repeatedly advised that the current program would not be reflective of the program that Z.M. would be provided in the 2019 ESY program. A week later, o n July 26, 2018 , petitioners informed the District that they would be unilateral ly placing Z.M. at the SHLI for the start of the 2018 /2019 school yea r. Petitioners did not refuse the July 2018, IEP at that time nor did it provide any feedback on the proposed IEP. On August 1, 2 018, petitioners observed the ESY program on August 1, 2018 , and in early October 2018 , observed the integrated cla ssroom. No feedback was received from the parents after the observation. Dr. Hoch observed both the integrated classroom and preschool disability classroom on October 12, 2018. The only feedback th at the District received from the petitioners’ regarding the July 2018, IEP was a Consultation Report #2 dated November 20, 2018 , by Dr. Hoch which was sent to the District on or about December 5, 2018.

OAL DKT. NO. EDS 03237-19 72 The January 2019 , IEP built upon the prior IEP and provided further clarity on the goals and o bjectives an d how they would be measured and met. It addressed many of Dr. Hoch’s concerns and adapted the IEP accordingly. More specific ally, the I EP called for a reduction of Z.M.’s time in the inclusion classroom from one hundred and eighty minutes to n inety minutes. The personal aide/individual RBT instruction, was increased to four hundred and five min utes daily. The BCBA o versight r emained the same, however, was further clarified as to the delivery of serv ices and the justification for the amoun t of “dosage”. G oals and objectives were further refin ed and updated to incl ude mastery and generalization criteria across people and settings. Parental training services were also increased and modified to be consistent with what was being provided by SHLI. Petitioners filed a Petition for Due Process in January 2019. Over the e nsuing months, Z.M. continued t o make significant progress. In February 2019, he started attending group lunches which lasted about forty-five minutes In March 2019, he also started participating in board ga mes, story time and a rts and cra fts where there was one teacher for every two students. In May 201 9, he started going on trips to the local library for story time which was also attended b y typically developing pe ers. A staff member, who was not an RBT, would accompany him to the library – their primary role being data collection on Z.M’s performance. District observations of Z.M . occurred in March 2019 , over a three-day period to assess his classroom readiness skills. During this time, he was observed participating in one-to-one instruction for a p eriod of time, instruction in a dyad with another student for about t en minutes and participated in a small group circle time with two other students for twenty minutes. Z.M.’s June 13, 2019, SHLI progress report, reflected that Z.M. had progressed across the board in several of the identified goals and objectives to the point that many of the programs were discontinued.

OAL DKT. NO. EDS 03237-19 73 On this same date, prior to the issuance of the 2019/2020 IEP which included ESY se rvices fo r Z.M., the petitioners notified the Dis trict that Z.M. would remain at SHLI and attend their 2019 ESY program and 2019/2020 academic year. Z.M.’s June 2 019, progress report was received by the Dist rict on Ju ly 8, 2019. The July 2019, IEP meeting w as wa ived by co nsent of the pa rties after whi ch the 2019/2020 IEP was issued. See Footnote 6 By consent of the parties, the Petition for Due Process was amended to add the 2019/2020 IEP. The 2019/2020 IEP provided for Z.M. to participate in the District’s ESY program in the self-contained sp ecial education preschool classroom from July 10, 20 19, through to Au gust 16, 2019 , five days a week/360 minutes. The program included Speech-Language Therapy Group, not to exceed three students (2x weekly/20 min); Speech-Language Therapy: individual (1x wee k/20 min); OT: Individual (2x weekly/20 min); OT: Group (1x weekly/20 min). For the 2019/2020 academic year, which commenced on September 5, 2019, Z.M.’s day was similar to the January 2019, IEP which provided for Z.M. to spend most of his day in the self-contained sp ecial e ducation preschool classroom (Daily/255 minutes) and an hour and a half (Daily/90 minutes) in the inclusion classroom. Parental counselling and training remained the same as did the OT, speech/language therapy and ABA based instru ction with an RBT assigned to him throughout the day . BCBA consultation was increased to six hours weekly given the fact tha t Z.M.’s 2019/2020 teacher did not have as much ABA experience as the prior year ’s teacher. Transition plans were also included wh ich would have occurred over the course of the summer with the assistance of SHLI staff members. Modifications and supplementary aids and services remained the same. The goals and objectives in the IEP were modified to reflect Z.M.’s progress over the course of the 2018/2019 school year as reflected in the SHLI progress reports; data review as of March 2019; and classroom observations.

OAL DKT. NO. EDS 03237-19 74 As with the p rior two IEP’s, the 2019/2020 IEP was appropriately ambitious for Z.M. and reasonably calculated to meet his educational needs LEGAL ANALYSIS AND CONCLUSIONS OF LAW This c ase arises under the Indi viduals wi th Disabi lities E ducation Act, 20 U.S.C.A. §§ 1400 to 1482. One purpose of the Act, among others, is to ensure that a ll children with disabilities have available to them a “free appropriate public education that emphasizes s pecial education and related se rvices de signed t o meet their unique needs an d pr epare them for further ed ucation, employment, and independent living. ” 20 U.S. C.A. § 1400(d)(1)(A). This “free ap propriate pub lic education ” is known a s FAPE. In short, the Act def ines FAPE as s pecial edu cation an d re lated services provided in confo rmity with the IEP. See 20 U.S.C.A. § 1401(9). A FAPE and related services must be provided to al l s tudents with disab ilities from age three throug h twenty-one. N.J.A.C. 6A:14-1.1(d). A FAP E means s pecial edu cation an d re lated services that: a) have be en provided at public expense, under public superv ision and direction, and without charge; b) meet the standards of the State educational agency; c) include an appropriate preschool, elem entary, or sec ondary sch ool educa tion in the State involved; and d) a re p rovided in co nformity with th e individualized education program (IEP) required under sec. 614( d). 20 U.S.C.A. § 1401(9); N.J.A.C. 6A:14-1.1 et seq. The responsibility to d eliver thes e ser vices res ts with th e local p ublic-school district. N.J.A.C. 6A:14-1.1(d). In order to p rovide a FAPE, a schoo l district must develop and imple ment an IEP. N .J.A.C. 6A:14-3.7. A n IEP is “a c omprehensive sta tement of the e ducational needs o f a ha ndicapped chil d and the specially designed instruction and related services to be employed to meet those needs.” Sch. Comm. of Burlington v. Dep’t of Educ. of Mass. , 471 U.S. 3 59, 368, 10 5 S. C t. 1 996, 2002, 85 L. Ed . 2d 385, 394 (1985). An IEP should be developed with the participation of parents and members of a district board of education’s CST who have participated in the evaluation of the child’s eligibility for special education and related s ervices. N.J.A.C. 6A:14-3.7(b). The IEP

OAL DKT. NO. EDS 03237-19 75 team should consider the strengths of th e student and the concerns of the parents for enhancing t he education of their child; the resul ts of the initial or mo st recent evaluations of the student; the student’s language and communications needs; and the student’s need for assistive technology devices and services. The IEP establishes the rationale for the pupil’s educational placement, se rves as the basis for p rogram implementation, an d c omplies with the m andates se t f orth in N.J.A.C. 6A:14-1.1 t o - 10.2. The A ct, h owever, lea ves the i nterpretation of FA PE t o th e courts. See Ridgewood Bd. of Educ. v. N.E., 1 72 F.3d 238, 247 (3d Cir. 1999 ). In Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 203, 102 S. Ct. 3034, 3049, 73 L. Ed. 2d 690, 710 (1982), the United States Supreme Court held that a state provides a h andicapped child with FAPE if it provi des personalized instruction with sufficient sup port se rvices to perm it the child to benefit educa tionally from that instruction. The Court reasoned that the Act was intended to bring previously excluded handicapped children into the public education systems of the states and t o require the states to a dopt procedures that would result in individualized consideration of and instruction for each child. Rowley, 458 U.S. at 189, 102 S. Ct. at 3042, 73 L. Ed. 2d at 701 The Act did not, however, impose upon the states any greater substantive educational stan dard th an would be ne cessary to ma ke such access t o public education meaningful. Rowley, 458 U.S. at 192, 102 S . Ct. at 3043, 73 L. Ed. 2d at 703. In suppo rt o f thi s l imitation, t he C ourt quoted Pennsylvania Association for Retarded Child ren v. Commonwe alth of Pennsylvania, 334 F. Supp. 1257 (ED Pa. 1971) and 3 43 F. Supp. 279 (1972), and Mills v . Board o f Educatio n of Dist rict of Columbia, 348 F. Supp. 866 ( DC 1972). Rowley, 458 U.S. at 192, 102 S. Ct. at 3043- 44, 73 L. Ed. 2d a t 703. The Court reasoned that these two cases were the impetus of the Act; that th ese two cases held that handicapped children must be g iven access to an adequate education; and tha t neither of these two cases purported any substan tive standard. Rowley, 458 U.S. at 192–93, 102 S. Ct. at 3043–44, 73 L. Ed. 2d at 703–04. In ad dition, t he Court noted that available funds need onl y be expen ded “equitably” so that no child is entirely excluded. Rowley, 458 U.S. at 193, 102 S. Ct. at

OAL DKT. NO. EDS 03237-19 76 3044, 73 L. Ed. 2d at 7 04, n.15. Indeed, the Co urt commented that “the furnishing of every special service necessary to maximize each handicapped child’s potential is . . . further than Congress intended to go.” Rowley, 458 U.S. at 199, 102 S. Ct. at 3047, 73 L. Ed. 2d at 707. Therefore, the inquiry is whether the IEP is “reasonably calculated” to enable the child to receive educational benefits. Rowley, 458 U .S. at 20 6–07, 102 S. Ct. at 3051, 73 L. Ed. 2d at 712. The Board will have satisfied the re quirements of law by pr oviding Z.M. with personalized i nstruction and sufficient s upport services “as are n ecessary to permit [him] ‘to benefit’ from the instruction.” G.B. v. Bridgewater-Raritan Reg’l Bd. of Educ., 2009 U.S. Dist. LEXIS 15671 (D.N.J. Feb . 27, 2009) ( citing Rowley, 458 U.S. at 189, 102 S. Ct. at 3042, 7 3 L . Ed. 2d at 7 01). The IDEA d oes not r equire the Board to maximize Z.M.’s potential or provi de him th e be st e ducation possible. Instead, the IDEA requires a school district to provide a basic floor of opportun ity. Carlisle Area Sch. v. Scott P ., 62 F. 3d 520, 5 33–34 ( 3d Cir. 1995). But an IE P m ust provide meaningful acce ss to education and conf er some e ducational benefit upon the child. Rowley, 458 U.S. at 192, 102 S. Ct. at 3043, 73 L. Ed. 2d at 703. To meet its obligation to deliv er FAPE, a school district must of fer an IEP that is reason ably c alculated to enable a ch ild t o make pr ogress app ropriate in l ight of the child's circumstance s. Endrew F. v. Douglas Cnty. Sch. Dist., 580 U.S. (2017);137 S.Ct. 988; 197 LEd 2d 335. “The educational oppo rtunities provided by our public-school systems undoubtedly differ from student to stu dent, depe nding upo n a myriad of factors that might aff ect a pa rticular student's a bility to assimilate i nformation presented in the classroom.” Rowley, 458 U.S. at 198, 102 S. Ct. at 30 47, 73 L. Ed. 2d at 707. The Rowley Court recognized that measuring educational benefit is a fact-sensitive, highly individualized inquiry, and that “[i]t i s clear that the benefits obtainable by children a t one end of th e spectrum will differ dramatically from those obtainable by children at the other end, with infinite variation in between.” Rowley, 458 U.S. at 202, 102 S. Ct. at 3049, 73 L. Ed. 2d at 709.

OAL DKT. NO. EDS 03237-19 77 The IDEA also includes a mainstreaming requiremen t requiring edu cation in the “least restrictive environment.” 20 U.S.C.A. § 1412(a)(5) mandates that [t]o the maximum exten t appropriate, children with disabilities, including c hildren in public o r priva te institutions or other care facilities, are educa ted with childr en who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the reg ular educational environment o ccurs onl y when t he nature o r sever ity of the disa bility of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. The law descri bes a continuum o f placement options, ranging from mainstreaming in a regular public-school setting as the least restrictive, to enrollment in a resid ential private school as the most restrictive. 34 C .F.R. § 300 .115 (2015); N.J.A.C. 6A:14 -4.3. Federal regulatio ns further requir e that placement must be “as close as possible t o th e child’s h ome.” 34 C.F.R. § 300.116(b)(3) (2015); N.J.A.C. 6A:14-4.2; Oberti v. Clementon Bd. of Educ., 789 F. Supp. 1322 (D.N.J. 1992). Courts in this Circuit have interpreted this mainstreaming req uirement as mandating educat ion in th e l east res trictive enviro nment that will provide meaningful educational bene fit. “The leas t restrictive environmen t is the one that, to th e greatest extent possible, satisfactorily educates disabled c hildren together with children who are not disabled, in the same school the disa bled child woul d attend if the child were not disabled.” Carlisle Area Sch. v. Scott P. , 62 F.3d 520, 535 (3d Cir . 1995), cert. den. sub. nom., Scott P. v. Carlisle Area Sch. Dist., 517 U.S. 1 135, 116 S. Ct. 1419, 134 L. Ed. 2d 544 (1996). Petitioners assert that all of the IEPs’ were inappropriate to meet Z.M.’s needs – thereby violating his right to a FAPE both procedurally and subst antively under the IDEA. Procedurally, the District vio lated N.J.A.C. 6A:14-2.3(k)2(iii) by failing to have a representative from SHL I present or at a minimum obtain their input for the 2018/2019 IEPs as well as the July 2019 /2020 IEP. The District also predetermined Z.M. ’s programming for 2018/2019 IEP as evidenced by the draft IEP presented to them at the July 2018, IEP meeting which had been developed without without any input from them.

OAL DKT. NO. EDS 03237-19 78 Petitioner furth er asserts that the District again procedurally violated FAPE by impeding the petition ers right to participate in formulating the January 2019, IEP and unilaterally developed the Jan uary 2019, IEP without holding a meeting, obtaining their input or seeking a waiver in violation of N.J.A.C. 6A:14-2.3(j), N.J.A.C. 6A:14-2.3(k)(4) and N.J.A.C. 6A:14-4.2(a)(4).6 Last, petitioner argues that the District violated FAPE not o nly under the IDEA, but under Section 504 of the Rehabilitation Act of 1973 (“Section 504”) by not providing an educational program that meets Z.M.’s individual needs. Procedural Arguments: This argument was raised for the first time in petitioner’s closing brief. The issue was not raised in t he original Due Process Petition or the Amended Due Process Petition as mandated by N.J.A.C. 6A:14-2.7(c) which requires among other things, that the petition “shall state the specific i ssues in dispute, relevant facts, and the relief sought”. As such, it is questionable whether it is properly before this Tribunal. N.J.A.C. 1:1-3.2 Even assuming arg uendo that the issue is properly before t he Tri bunal, I CONCLUDE that the alleged procedural violations did not impede Z.M.’s right to FAPE, significantly impede the petitioners ’ opportunity to participate in the decision ma king process regarding the provision of FAPE to Z.M. ; or cause a deprivat ion of educational benefits. N.J.A.C. 6A:14-2.7(k) Unlike K.S. and C. S. o /b/o J.S. v. Hopewell Valley Reg ’l Bd. Of Educ. (EDS 15329-12) (Hopewell Valley) where the court found inte ntional misconduct conduct on 6 By letter, dated May 6 , 2020, petitioners withdrew their procedural violation argument that the District violated FAPE by issuing the July 2019, IEP without first having convened an IEP meeting and allowing the petitioner ’s the op portunity to participate in the decision-making p rocess. Through this letter, the petitioner acknowledged that the IEP meeting was waived by both parties. See also Paragraph 32 of the Amended Petition.

OAL DKT. NO. EDS 03237-19 79 the part of the District, there was no subterfuge on the District’s part or intent to exclude the petitioners from the IEP process. Using for example the July 2018 , IEP - by T.M.’s own admission, the District would have been remiss had they not prepared a n initial template IEP based upon the infor mation that it had available at t he ti me which included, among other thin gs, petitioners experts’ report, District evaluations and testing. Additionally, t hroughout the meeting, the District re peatedly attempted to engage the petit ioners in the process . T hey were conti nuously advised that once the progress reports from SHLI w ere reviewed and their feedb ack was obtained, the IEP would be revised . However, no fe edback was forthcoming for several months which was when Dr. Hoch’s Consultation Report #2 was received. As it relates to the January 2019, IEP, there is a divide as to whether the IEP meeting wa s waived by unspoken consent of counsel given the correspondence exchanges. What is undisputed, however, is the fact that upon recei pt of Dr. Hoch’s Consultation Report #2 , the District revised the July 2018, IEP to address many of Dr. Hoch’s concerns and build upon the growth noted in Z.M.’s SHLI progress reports. The January 20 19, IEP was sent to petitioners’ counsel for her client ’s re view and comment. The response received was that the p roposed prog ram w as inappropriate to meet Z.M.’s needs and that the appropriate placement for Z.M. was at SHLI. The January 2019, IEP did not change Z.M.’s placement nor was it substantively changed oth er than r educing Z.M.’s time in the i ntegrated classroom. There is no evidence that su ch action adversely affected the student ’s or the parent ’s substantive rights. C.H. Cape Henlopen Sch . Dist. 606 F . 3 d. 59, 66 -67 (3d Cir. 2010) ; H.M. v. Haddon Heights Board of Educ., 822 F. Supp.2d 439 ( U.S.D.N.J.2011); Kingsmore v. District of Columb ia, 466 F.3d 118, 119 (D.C. Cir. 2006); Z.R. v Fort Lee Board of Education, 211 WL 48 6151 (U.S.D.N.J. 2001 ), affirmed 458 Fed. Appx. 124 (3 rd Cir.2011); D.S. v. Parsippany Troy Hills Board of Educ ., 2018 WL 6 617959 (US.D.N.J. 2018).

OAL DKT. NO. EDS 03237-19 80 Substantive Arguments: With regard to the 2018/2019, specifically the July 2018 , IEP, petitioners argue that what the District envisioned the IEP would evolve into is not the standard, rather it is what was offered. Lascari v. Bd. of Education, 116 N.J. 30 (1989). More specifically, petitioners assert that the IEP called for Z.M. to split his day between the self-contained special education classroom and the inclusion general education, which based upon Dr. Hoch’s testimony and Dr. Bothers was premature. The IEP a lso failed to provide ABA instruction which was again contrary to Dr. Hoch ’s recom mendations as well as Dr. Farrells. Additionally, the IEP did not offer a Comprehe nsive ABA Program, which was again contrary to petitioner’s experts’ recommendations. Last, the IEP failed to plan for generalization. For all of these reasons, the petitioners contend that the July 2018, IEP was not reasonably calculated to meet Z.M.’s educational needs. The evidence pro ves otherwi se. From the st art, the District was placed at a disadvantage. No transitional meeting was held prior to the Ide ntification and Evaluation Planning Meeting b ecause they were informed that the peti tioners were already familiar with the program. At the t ime of th e Identi fication Meeting, the only information that the Dis trict had been provided was from EI which inclu ded the prior Battelle assessments. The District was unaware that Z.M. was autistic, that he had attended t he SEARCH program or that he had b een a ttending and was st ill enrolled in the SHLI ’s Pilot Program since 2017. It did not have the benefit of Z. M.’s records from Dr. Farrell nor was it a dvised that Dr. Hoch had been re tained months prior to opine on the appropriateness of Z.M.’s placement at SHLI. At the t ime of the mee ting, the parties agreed t hat EI would comple te the exit Battelle, and that additional evaluations would be conduct ed as well as observations at SHLI.

OAL DKT. NO. EDS 03237-19 81 Based upon the results of the testing, evaluations, observations, data review and reports, which included Dr. Hoch’s consultation report, the District prepared a proposed IEP with the expectation that the petitioners would provide feedback and participate in the process. While requested long before the meeting dat e, the District did not receive anything from SHLI until the day before the July 19, 2018, meeting, therefore, there was no opportunity to incorporate the information into the draft IEP. The July 2018, proposed IEP provided Z.M. with an appropriately intensive ABA instruction th roughout the day a s well as a n RBT. The lev el of BC BA oversight was appropriate given the fact that Z.M. wo uld be receiving one -to-one inst ruction from a certified special education teacher who was highly trained in ABA as well as t he RBT. Individualized inst ruction woul d have take n place in both settings unt il the data indicated group instruction would b e appropriate for him. Additionally, the IEP provided that Z.M. attend a half a day in the preschool integrated classroom where h is social skills, prag matics and general ization, ar eas of identifi ed we aknesses, would be addressed. At the time the July 2018 , IEP was offered, Z.M. was already displaying readiness for participation in the inclusion classroom which was further indicative of the fact that pro posed p rogram was a ppropriate. The program a lso called for Speech - Language Therapy, OT and a BIP. Throughout the meeting, the District repeatedly advised the petitioner that their feedback was imp ortant and that the IEP would b e modified based upon th eir in put. The petitioner asked for time to review the IEP and also requested the opportunity to observe the ESY program as well as the classrooms. A week after the meeting , petitioners ad vised the District that they would be unilaterally continuing their son at SHLI, however, they did not refuse the IEP. The petitioners observed the ESY program in August 2018, and they, along with Dr. Hoch, observed the integra ted classroom in early Octob er 2018. No input was forthcoming until December 2 018 – five months a fter the eligibility meeting and two

OAL DKT. NO. EDS 03237-19 82 months after Dr. Hoch and the petitioners conducted their obs ervations of the District’s program. Upon receipt, the District provided a revised IEP (January 2019 IEP). The issue of parental cooperation in the IEP process and the impact it has on the ability of the District to provide FAPE was touched upon in K.G. v. Cinnam inson Twp. Bd. of Educ ation WL 4489672 (3d Cir. 2018). The Court , in concurring with Administrative Law Judge’s determination that the District had offered FAPE found that: The ALJ's comments clearly aros e from his determination that Plaintiff had failed to provide Defendant with a good faith opportunity to comply with the IDEA, not that it lacked the ability, will, or capacity to do so. Rather, the ALJ found that Defendant prepared a proposed IEP in advan ce of the child study team meeting for the 2015-2016 schoo l y ear, but Plaintiff did no t provide in put at that meeting, and she failed to cooperate wi th Defendant in w orking on an IEP fo r R.L . The ALJ further found that Plaintiff prevented Defendant from fu lly addressing R.L.'s needs or adjusting the I EP to meet her needs by depriving it of the opportunity to demonstrate the education available to R.L. at Cinnaminson…. Consequently, the Court f inds that the ALJ did not impose a requirement that a student mu st "try out" the public school before an alternative plac ement could be considered, bu t rather mad e the finding t hat Plaintiff 's l ack o f cooperation in th e process st ymied Defendant's efforts to fulfill its obligations under the IDEA, which required Defend ant to determine, in the first instance, wheth er it could provide R.L. with a FAPE in-district. In D.S. v. Bayonne Bd. Of Educ., 602 F.3d 553, 564-65 (3d. Cir. 2010) the court found that the appropriateness of an IEP must be determined as of the time it is made, and the reasonableness of the school district’s proposed program should be judged only on the basis of the evidence known to the school district at the time at which the offer was made. An IEP is a “snapshot, not a retrospective.” Fuhrmann v East Hanover Bd. of Educ., 993 F.2d 1031, 1041 (3rd Cir. 1991), citing Roland M. v Concord School Committee, 910 F.2d 983,992 (1st Cir. 1991). Thus, “in striving for ‘appropriateness’, an IEP must take into account what was, and was not, objectively reasonable when the snapshot was taken, that is, at the time the IEP was drafted.” Ibid.

OAL DKT. NO. EDS 03237-19 83 Our courts ha ve confirmed t hat “neither the s tatute nor reason countenance ‘Monday morning quarterbacking’ in evaluating a child’s placement.” Susan N. v. Wilson Sch. Dist., 70 F.3d 751, 762 (3rd Cir. 1995), citing Fuhrmann, supra., 993 F.2d at 1040. While factually dissimilar to K.G., the underlying issue is the sam e. At the time the District proposed the July 2018, IEP, it did not ha ve at its di sposal, Z.M.’s records from SHLI, or, through no fault of the petitioners, their input. On this note , however, petitioners did not prov ide any input for several months after the IEP was pro posed. Once their feedback was received, the IEP was revised and refined to further advance the progress that Z.M. had made based upon the SHLI progress reports and address Dr. Hoch’s concerns. As such, I FIND that the July 2018 IEP, cannot be looked at in a vacuum – rather, in conjunc tion with the January 2019 in the determination of whether the District offered Z.M. FAPE in the 2018/2019 school year. However, e ven if looked at independently, the July 2018 , IEP provided Z.M. FAPE given what information/documentation th at the Dis trict had at the time it was prepared. The IEP took into consideration not only the eva luations, t esting and observations that were done , it also took into considera tion Dr. Hoch ’s recommendations. With lim ited exception, most of Dr. Hoch’s recommendations were incorporated into the IEP. The IEP provided an appropriately int ensive ABA p rogram which would have allowed Z.M. to learn skills in a one -to-one setting and then provided him the opportunity to generalize and practice those skills in a less restrictive environment such as small group instruction and inclusion opportunities. The January 2019, IEP, did not change Z .M.’s placement nor did the IEP substantively change other than reducing Z.M.’s time in the integrated classroom based upon consideration of Dr. H och’s comments. The IEP now called f or time in the in - class resource ro om with Z.M .’s gener al edu cation peers for sna ck, play based

OAL DKT. NO. EDS 03237-19 84 instruction, small group math/science/story lab and during this time h e would have received in dividualized instruction on p laying with peers and small group att ending skills. In essence, the IEP built upon the first IEP and provided further clarity on the goals and objectives and how they would be measured and me t. While the amount of BCBA oversight remained the same, the provision of services was described in greater detail as were transition services. P arent training was also increased to be consistent with what SHLI provided. The 2019/2020 IEP, based upo n Z.M.’s more recent progress reports, took into consideration Z .M.’s progress over the year with the goals and objectives m odified accordingly. The IEP still called for Z.M. to spend most of his day in the self -contained special education preschool classroom and ninety-minutes in the inclusion classroom. BCBA oversight was increased to six hours weekly due to the fact that Z. M.’s teacher for the academic year did not have as much ABA experience. Based upon the testimony and documentary evidence, I CONCLUDE that the 2018/2019 IEPs and the 2019/2020 IEP that were proposed by the District offered Z.M. a FAPE with the opportunity fo r meaningful educational bene fit and progress appropriate in light of Z.M.’s circumstances, within the least restrictive environment. I CONCLUDE that the program offered Z.M. by the District constituted FAPE as that term is defi ned by la w and that the Board has met its burden of pro of. N.J.S.A. 18A:46-1.1 The IDEA also includes a mainstreaming requirement requiring education in the “least restrictive environment.” 20 U.S.C.A. § 1412(a)(5) mandates that [t]o the m aximum exten t appropria te, children wi th disabilities, including ch ildren in public or private institutions or other care facilitates, are educated with children wh o are not d isabled, and sp ecial c lasses, separate schooling, or other removal o f children wi th disabilit ies from th e regular educational environment occurs onl y wh en the natu re or severity of the disability of a child is such that education in

OAL DKT. NO. EDS 03237-19 85 regular clas ses with th e use of supple mentary aids and services cannot be achieved satisfactorily. The law describ es a contin uum of placemen t options, ranging from mainstreaming in a r egular public school setting as least restrictive, to enrollment in a residential private sch ool as most res trictive. 34 C.F.R. § 300.115 (201 5); N.J.A.C. 6A:14-4.3. Federa l regulation s further r equire that pla cement must be “as close as possible to the child’s home.” 34 C.F.R. § 300.116(b)(3) (2015); N.J.A.C. 6A:14 -4.2; Oberti v. Clementon Bd. of Educ., 789 F. Supp. 1322 (D.N.J. 1992). Courts in th is Circui t have interp reted this m ainstreaming requirement a s mandating education in the least r estrictive environment that will provide meaningful educational benefit. “The least restr ictive environment is the one that, to the greatest extent possible, satisfactorily educates disabled children together with children who are not disabled, in the same school the disabled child would attend if the child were not disabled.” Carlisle Area S ch. v. Scot t P., 62 F.3d 5 20, 535 (3d Cir. 1995), cert. den. sub. nom., Scott P. v. Carlisle Area Sch. Dist., 517 U.S. 1135, 116 S . Ct. 1419, 134 L. Ed. 2d 544 (1996). The Whiton Elementary School is Z.M. ’s home school and i s the least restr ictive environment that will provide Z.M. a meaningful education benefit . Z.M., is autistic and among other thing s, has a demonstrated weak ness in pragmatic language and hi s spontaneous language is decreased. He has difficulty maintaining attention and demonstrating appropri ate play skills and has relatively minor behaviors of non- compliance. The July 2018, IEP appropriately placed him in the preschool disabilities classroom for half a day and the other half in the inclusion classroom. The program provided Z.M. with a sufficiently intensive ABA program throughout the day in bo th se ttings, one -to-one ins truction from a certifi ed special educ ation teacher trained in ABA as well as a full time RBT. Based upon the Districts evaluations, testing, reports and observat ions, the D istrict determi ned that Z.M. was displaying readiness skills for group instruction. He was also ready for inclusion opportunities – he did not have a h igh level of disruptive behavior, had an average communication skills

OAL DKT. NO. EDS 03237-19 86 and average cognitive s kills. As with group inst ruction, inclusion opportunitie s would have been systematically int roduced and would allow him work on his social pragmatic skills and social skills. The January 2019, and 2019/2020 IEP decreased Z.M. ’s time in the inclusion classroom based upon feedbac k from Dr . Hoch and review of Z.M.’s progress reports. As with the July 2018, IEP, the January 2019, and 2019/2020 IEPs provided sufficiently intensive ABA program ming throughout the day in both settings, one -to-one instruction from a certi fied special ed ucation t eacher as well as two differen t RB Ts. BCBA supervision was increased for the 2019/2020 school year. Parental training hours were increased to mirror what petitioners were receiving through SHLI and an ESY program was offered When a court exami nes wheth er a district has provided FAPE , th e appropriateness of an IEP is not dete rmined by a comparison bet ween the private school unilaterally chosen by parents and the program proposed by the District. S.H. v. State-Operated Sch. Dis t. of Newark, 336 F.3d 260, 271 (3d Cir. 2003). Rather, t he pertinent inquiry is whet her the IEP pro posed by th e District offe red FAPE with the opportunity for significant learning and meaningful educational benefit within the least restrictive environment. G.B. and D.B. ex rel J .B. v. Bridgewater-Raritan Reg’l Bd. of Educ., EDS 4075 -06, Fi nal D ecision (June 13, 2 007), http://njlaw.rutgers.edu/collections/oal/. Upon a finding that the District provided FAPE, the appropriateness of the private school program is irrelevant. H.W. a nd J.W. ex rel A.W. v. Highlan d Park Bd. of Educ. , 108 Fed . Ap px. 7 31, 734 (3d Cir. 20 04). The District bears the burden of pr oof by the preponderance of the competent and credible evidence that it has provided a FAPE to Z.M. in the least restrict ive envi ronment. N.J.S.A. 18A:46 -1.1. The District in this ca se has proven by a preponder ance of the com petent and credible eviden ce that the 2018/2019 and 2019/2020 IEPs proposed by the District offered Z.M. a free and appropriate education with the opportunity for meaningful educational benefit appropriate in ligh t of Z.M.’s circumstances, w ithin the least

OAL DKT. NO. EDS 03237-19 87 restrictive environment. To t he exten t that I have concluded that the District has provided a FAPE to Z.M., the appropriateness of a placement at the SHLI is irrelevant. Section 504 Claim N.J.A.C. 6A:14 -2.7(w) s tates that requests for a d ue process h earing with respect to iss ues concerning 504 of the Rehabilitation Act of 1973 shall proceed in accordance with this section. Section 504 of the Re habilitation Act of 1973 (Section 504) prohibits discrimination an d ex clusion of persons with dis abilities fr om programs that receive federal funds. 29 U.S.C. s 791, et. seq. 34 C.F.R. 104, Subparts A, C and D. The stated goal of Section 504 is “to the ma ximum extent possible, [persons with disabilities] shall be fully i ntegrated into American life.’ (Senate Report 1978). Section 504 is broader than the IDEA in terms of the scope with respect to who is protected and the programs in which they are protecte d. It ap plies to all persons with a dis ability including students, employees, patrons of public fa cilities, etc. and appl ies not only to school programs, it also applies to extra-curricular programs and after school programs. Petitioners allege that the District violated Section 504 by failing to provide Z.M. an educational program that met his individual needs, therefore it deprived him of FAPE under Section 504 as well as the IDEA. As set forth above, just as I have FOUND that the District provide d Z.M. with FAPE in the least restrictiv e environment, I FIND that the District did not violate Section 504. In this case, the IEPs that were proposed consisted of comprehensive statements of Z.M.’s educational needs and the specially designed instruction and related services to be employed to meet those needs. Therefore, I CONCLUDE that the proposed IEPs provided appro priate and meaningful services and accommodations to Z.M. in order to access his education in accordance with Section 504 of the Rehabilitation Act ORDER

OAL DKT. NO. EDS 03237-19 88 Based on the foregoing, the due-process petition is DISMISSED.

OAL DKT. NO. EDS 03237-19 89 This decision is final pu rsuant to 20 U.S.C. § 1 415(i)(1)(A) and 34 C.F.R. § 300.514 (2019) and i s app ealable by fil ing a complaint and bringi ng a civil action either in the Law Division of the Superior Court of New Jersey or in a district court of the United States. 2 0 U.S.C. § 1415(i)(2); 34 C.F.R. § 300.516 (2019). If the parent or adult s tudent feels that this dec ision is not being fully i mplemented with respec t t o program or services, this co ncern shou ld be communicated in writing to the Di rector, Office of Special Education Programs. May 27, 2020 DATE TAMA B. HUGHES, ALJ Date Received at Agency Date Mailed to Parties: TBH/dm

OAL DKT. NO. EDS 03237-19 90 APPENDIX Witnesses For petitioners: T.M. Hannah Hoch, Ph.D. Kevin Joseph Brothers, Ph.D.,BCBA-D For respondent: Allison Eby Heather Lilly Exhibits Joint Exhibits: J-1 Battelle Developmental Inventory J-2 January 31, 2017, Atlantic Health Summary of Care J-3 April 24, 2017, Ambulatory Referral to Behavioral Health/ABA J-4 May 23, 2017, Initial BDI-2 Evaluation information Form J-5 September 19, 2017, Atlantic Health Summary of Care J-6 January 30, 2018, Somerset Hills Learning Progress Report J-8 May 14, 2018, Atlantic Health Summary of Care J-9 May 14, 2018, Branchburg IEP Meeting Attendance Sign-in Sheet J-10 May 25, 2018, Somerset Hills Learning Institute Progress Report J-11 June 18, 2018, Social History Evaluation Branchburg Township J-12 June 18, 2018, Occupational Therapy Evaluation Branchburg Township J-13 June 19, 2018, Battelle Developmental Inventory J-14 June 27, 2018, Speech and Language Evaluation Branchburg Township J-15 June 27, 2018, Email exchange from Heather Lilly

OAL DKT. NO. EDS 03237-19 91 J-16 July 9, 2018 , Structured Observation Branchburg T ownship (EI OT session at home) J-17 July 9, 2018, Structured Observation Branchburg Township (2x at SHLI) J-18 July 12, 2018, Email exchange from Allison Eby J-19 Not introduced or in evidence J-20 July 19, 2018, Email exchange from Allison Eby J-21 July 19, 2018, Branchburg Township Meeting Attendance Sign-in Sheet J-22 July 19, 2018, IEP J-23 Not introduced or in evidence. J-24 July 26, 2018, Letter from S.M. and T.M. to Heather Lilly J-25 August 1, 2018, Email exchange from T.M. J-27 September 12, 2018, Email exchange from Heather Lilly J-28 Somerset Hills Learning Institute Progress Report J-32 December 5, 2018, Letter from Lori Gaines, Esq. to David Rubin, Esq. J-34 December 20, 2 018, Email from David Rubin, Esq., with Wri tten explanation by the CST and proposed IEP J-35 January 7, 2019, Letter from Lori Gaines, Esq. to David Rubin, Esq. J-36 January 25, 2019, Somerset Hills Learning Progress Report J-38 Visitor’s Log Whiton Elementary School relative to Allison Eby J-39 May 6, 2019, Email Exchange Allison Eby J-40 June 13, 2019, Letter from Lori Gaines, Esq. to Rita Barone, Esq. J-41 2018/2019 Scheduled for Proposed In-District Program J-44 Not introduced or in evidence J-45 Curriculum Vitae Allison Eby J-46 Not introduced or in evidence J-51 September 2018 – April 2019, Whitton Elementary Visitor Log and School Calendar J-53 Curriculum Vitae Heather Lilly J-59 January 2, 2019, IEP J-60 Not introduced or in evidence J-61 Not introduced or in evidence J-62 Not introduced or in evidence

OAL DKT. NO. EDS 03237-19 92 J-63 July 19, 2018, Recording of IEP Meeting J-65 July 9, 2019, IEP For petitioners: P-7 March 29, 2018, Consultation Report Hannah Hoch, Ph.D., BCBA-D P-26 August 1, 2018, Observation of Self-Contained Preschool Child with a Disability Classroom by S.M. and T.M. P-29 October 4, 2018, Observation of Integrated Preschool Program at Whiton Elementary School by S.M. and T.M. P-30 Notes by S.M. of Observation of Integrated Preschool Program at Whito n Elementary School on October 4, 2018. P-31 November 20, 2018, Consultation Report by Hannah Hoch, Ph.D., BCBA- D P-33 December 17, 2018, Email Exchange from Douglas Haan and caricature of a Dragon P-42 Curriculum Vitae of Hannah Hoch, Ph.D., BCBA-D P-43 Curriculum Vitae of Kevin Joseph Brothers, Ph.D., BCBA-D P-47 Applied Behavi or Analys is Treatment of Autism Spectrum Disorder: Practice Guidelines for Healthcare Funders and Managers P-48 DSM-5 Diagnost ic a nd St atistical Manual of Mental Disorders – Autism Spectrum Disorder Criteria P-49 Professional and Ethical Compliance code for Behavior Analysts P-50 Not introduced or in evidence P-52 Program Book Somerset Hills Learning Institute P-64 Somerset Hills Learning Institute Progress Report – July 13, 2019 P-66 May 14, 2019, E-mail from Lori Gaines, Esq. to Rita Barone, Esq. P-67 July 8, 2019, Job Posting by Branchburg Township School District P-68 Somerset Hills Learning Institute Camp Data P-69 Chart For Respondents:

OAL DKT. NO. EDS 03237-19 93 R-54 June 27, 2019, Report of Allison Eby and Heather Lilly R-55 Not introduced or in evidence R-56 Article – Providing Interventions fo r Young Chi ldren with Autism by P. Strain, et al R-57 Not introduced or in evidence R-58 Article – Preschool Inclusion by S. Odom