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Post by vp4 on Jun 2, 2009 20:00:12 GMT -5
The case manager wants to limit classroom observation by the learning consultant to 60 minutes to prevent disruption of class. Is this a limit allowed by law? Thanks.
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Post by dihicks6 on Jun 2, 2009 21:01:46 GMT -5
Ask them for the written policy that says the consultant can only stay 60 min. Is that 60 min. total for all classes? Is this an IEE that's being done? If it's an IEE, then tell them you will ask for redacted copies of other IEE's to compare how much time anyone from the outside spent observing.
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Post by jdeekdee on Jun 2, 2009 21:10:05 GMT -5
Also request PWN on this.
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Post by vp4 on Jun 2, 2009 21:33:26 GMT -5
This is being done as we are going to DP. The IEE was done in March, paid for by me. I was sent the doc below, in response to request to schedule classroom observation by Learning Consultant hired by me.
Pupil Services Department
Procedure #: PSD-MTSD 10-2008
Title: Consultant Observations of MTSD Students
Purpose: Non-Staff personnel are required to follow district policies to protect privacy and safety of students.
Consultant is required to do the following:
1. Contact student’s case manager 5 days in advance of requested observation date.
Case Manager will coordinate and confirm date.
2. Consultant will sign in at the student’s school entrance desk and receive a temporary ID badge. It is suggested that the consultant arrive 30 minutes prior to appointment to allow time for observation set-up.
3. Consultant will be directed to the school Child Study Team office. Consultant will sign-in as a non-staff observer.
4. Consultant will be escorted to the observation by a CST member or administrator who will remain with the consultant.
5. In order to minimize any disruption to instruction consultant observation time will be limited to a maximum time of 60 minutes.
6. Consultant questions for staff will be sent via e-mail, letter to the case manager who will refer the inquiry to the appropriate person. Whenever possible the case manager will strive to answer consultant questions as long as it is within the 60 minutes designated for the observation.
Any questions should be directed to: Director.
DEPARTMENT OF PUPIL SERVICES
Record of Non-Staff Observation
Student: ______________________ Date: _______________
Grade/Class: __________________ Starting time: _________
Ending time: __________
Professional Name : ____________________________________________
Job Title: _____________________________________________________
Agency: ______________________________________________________
Purpose of Observation: ____________________________________________________
________________________________________________________________________
CST Person Coordinating Observation:________________________________________
Comments by CST (if needed):
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
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Post by dihicks6 on Jun 3, 2009 6:06:39 GMT -5
I would have the consultant list out the reasons why they need more than 60 minutes, request PWN on any refusal and I would also ask for (under the FOIA regs) for redacted copies of the above form with the times listed on it. In your letter I would also mention that it could be construed as a denial of FAPE for them to limit any portion of an IEE. IDEA says that districts are not to impose any 'conditions' on IEE's that would limit your right to an IEE.
Can the consultant make more than one visit? Also ask for the written policy for non-sped kids with regard to being observed. Also, you might want to share this with aworried mom and see if OCR might be interested in following up. Same district, correct?
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Post by sld123 on Jun 3, 2009 6:43:33 GMT -5
disagree and file a grievance
how long will they give dr kay?
what does your atty say?
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Post by hope4us on Jun 3, 2009 7:35:49 GMT -5
vp our attorney handled her observation with the boards council. She was in C's RR class, his Wilson 1:1, and in the general ed classroom...from about 12 until 2:45...I was told, that schools tyr and comply to look good before a HO, (ya know "we have nothing to hide"). I guess this isn't the case with your district.
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Post by stitchdad on Jun 3, 2009 7:57:30 GMT -5
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Post by vp4 on Jun 3, 2009 8:27:14 GMT -5
Yes. aworriedmom is in the same sd. This school district hasn't even responded to my attorney's request for copies of all records. They dance to their own "screw the student" tune.
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Post by vp4 on Jun 3, 2009 8:28:47 GMT -5
sld, I am not using Dr.K for this observation but the learning consultant the hope uses. My attorney requested that I use her.
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Post by sld123 on Jun 3, 2009 9:01:32 GMT -5
oh sorry thought you were having both see decision i posted last nite
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Post by vp4 on Jun 3, 2009 9:22:46 GMT -5
dihicks6, I am going to wait for the consultant to get back to me on the time she needs.
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Post by dihicks6 on Jun 3, 2009 10:01:03 GMT -5
Well, they have 45 days to allow a records review per FERPA, however, if you have an IEP meeting coming up, IDEA says you must be allowed to view the records in preparation for any IEP meeting. I would try and use that to your advantage.
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Post by sld123 on Jun 3, 2009 10:43:34 GMT -5
New Jersey Coalition of Child Study Teams
Mission Statement The Coalition of Child Study Teams (COCST) was established in June, 1999 to develop and enhance ongoing communication and collaboration among the respective New Jersey State professional associations which include the:
* Association of Learning Consultants (ALC) * New Jersey Association of School Psychologists (NJASP) * New Jersey Association of Speech-Language Specialists (NJASLS) * New Jersey Association of School Social Workers (NJASSW) * New Jersey Association of School Nurses (NJSSA)
Our Mission Goals Are:
* To ensure that disabled students receive services guaranteed under state and federal law for a Free and Appropriate Public Education. * To advocate for school based Child Study Teams services provided by employees of the local school district. * To advocate for open communication with families and teachers concerning all services needed by students. * To develop collaborative relationships with professional organizations and education stake holder groups. * To inform our respective memberships of legislative actions which will affect the educational rights of all students. * To influence and support public policies which further our mission to protect the rights of all students.
Position Statement on Roles and Functions of Child Study Team Members
Federal and state laws emphasize the importance of parents as key decision makers in the educational process. Child Study Team personnel share many common skills such as child advocacy, understanding of school functioning, knowledge and implementation of special education law, case management, transition planning, inservice training, research, and community collaboration. However, each discipline approaches the intervention and eligibility process from a different perspective based on the training and skills of each profession.
Therefore, it is imperative that parents be provided with a clear delineation of Child Study Team roles and functions. The Coalition of Child Study Teams' state associations - the Association of Learning Consultants, the New Jersey Association of School Psychologists, the New Jersey Association of School Social Workers, and the New Jersey Association of Speech Language Specialists - have jointly developed this position statement concerning our respective roles, our functions, and the best practices related to our professions in New Jersey's public schools. We believe that this statement is needed in light of the recent and anticipated changes in federal and state special education rules and regulations.
The COCST is dedicated to the multi-disciplinary model of assessment and intervention for students with special needs. This model is a team approach in which separate professionals assess the educational impact of a child’s learning, behavioral, emotional, social, community, health, communication and language functioning. As such, the Child Study Team provides students and parents with the most comprehensive and reliable method of assessing children's needs and recommending appropriate educational and related services.
The Learning Disabilities Teacher-Consultant (LDT-C) functions in the school environment as an educational diagnostician, instructional programmer and Child Study Team member. The LDT-C is required to be dually certified as a teacher. The requirement of classroom teaching experience offers a multi-dimensional relevance to the assessment and implementation processes. Learning Disability Teacher-Consultants use their understanding of classroom functioning, effective teaching and adaptive instruction to help students maximize their learning potential and provide practical assistance to their teachers. Services provided include teacher/student consultation, preventative pre-referral intervention, assessment, coordination of services, and program development. The LDT-C must also effectively communicate with parents, teachers and administrators. An educational assessment shall be the responsibility of a learning disabilities teacher-consultant employed by the district board of education. The assessment should include both standardized and functional assessments, review of the student’s work samples and the student’s records, classroom observations, interviews of teacher and other relevant parties, evaluation and analysis of the student’s academic performance and learning characteristics.
School Psychologists are specialists with training and expertise in psychology as it is applied to education. They use their training and skills to collaborate with parents, educators, and other professionals to ensure that every child learns in a safe and supportive environment. School Psychologists use their understanding of school organization and effective learning to help students realize their academic and social potentials. They tailor their services to the particular needs of each child and each situation. School Psychologists are trained to assess and counsel students with behavioral, emotional, and educational concerns through consultation, prevention, intervention, crisis management, evaluation, and program development. A psychological assessment shall be the responsibility of a School Psychologist employed by the district Board of Education. The psychological assessment should include standardized and functional appraisals of a student’s current cognitive, intellectual, adaptive, social, emotional and behavioral status in the context of his/her environments. The assessment should include consultation with parents, educators, and relevant professionals; a student interview; and observation of the student in other than a testing situation.
School Social Workers provide unique services to students and their families, helping the students attain maximum benefits from their educational programs. The School Social Worker's knowledge of social, emotional, cultural and economic differences among children and families enable them to be the link between school, family and community. As a member of the educational team, School Social Workers promote and support students' academic and social/emotional well-being. Through sound school social work practice, the School Social Worker is able to enhance the full educational and individual potential of all students and eliminate barriers to learning by being pro-active within the academic community and providing early intervention, prevention, consultation, counseling, crisis management, and support services. A social assessment shall be the responsibility of a school social worker employed by the district board of education. The social assessment shall include observation of the student and communication with the student's parent(s)/guardian(s). It shall also include an evaluation of the student's adaptive social functioning and emotional development and of the family, social, and cultural factors which influence the student's learning and behavior in the educational setting.
Speech-Language Specialists are experts in all areas of communication who make assessments, analyses and classifications of students' communication competencies and characteristics. As a member of the educational team, the Speech Language Specialist participates in the planning of educational programs for children with communication disorders. Speech Language Specialists plan, prepare and deliver treatment programs for children with speech and language deficiencies. They also serve as resource persons in the area of speech and language development and disorders to classroom teachers, parents, administrators and the child study team. A speech and language assessment shall be the responsibility of a Speech Correctionist or Speech-Language Specialist employed by the district Board of Education. The assessment shall include observations of the student in other than a testing session, consultation with the classroom teacher, communication with the parent(s)/guardian(s), and an evaluation and analysis of speech and language development.
Approved by ALC, NJASP, NJASLS, and NJASSW in October, 2002
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Post by aworriedmom on Jun 3, 2009 12:58:54 GMT -5
I'm here--sorry I'm a bit late but am working plus fighting my own big sped battles in this district, as well.
Yes, vp4 and I are in the same rotten, arrogant suburban NJ school district. An Hope is not far away.
My first take on this----this "policy" you quote is NOT on the BOE web site (sadly, I think by now I know at least the title of all of the BOE policies). That means that I doubt it was voted on during a BOE meeting. Thus, this is just something our wonderful dinosaur sped head put together. Why not write to the SUper and BOE and ask for the link to the posted BOE minutes where this document was approved? I guess technically this would by a NJ OPRA request. The Board business manager is the OPRA officer--I have tackled him, too for a log of the District legal fees used to deprive my kids of FAPE---he is really an SOB. I can give you his name and how to do the OPRA request, too.
I wonder if you can't scare them with 2 things and get unlimited access for your IEE observer: a) ask for a copy of the signed and dated BOE pOlicy on restricting IEE obs and....b) ask if you should get an opinion from the NJ dept of ed on this policy and does it limit access to an IEE?
I can tell you more off line about why the NJ Dept of Ed looking into district records might just make them sweat right now. Ditto with the OCR ref above.
My guess is that your case manager has no idea of what else is going on in the district, and simply ccing the sped head and super with the question about if this is truly a BOE policy may loosen them up. Sped head and super may be a bit edgy right now about sped problems....
To everyone else on the board---our district doesn't think that laws and rules apply to them. The sped staff also isn't very well trained, so when you ask about things like PWN, IEEs, they are really confused. I am still trying to convince them that IEPs have goals, that PLOP means present levels of academic and functional performance and that LRE equals least restrictive environment. Honest to gosh it is this bad here even though the $$$ flows and this is anything but a poor district.
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Post by sld123 on Jun 3, 2009 13:28:19 GMT -5
it should come under nj sunshine laws
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Post by jw on Jun 3, 2009 16:54:46 GMT -5
Hi! Here is a link to a case with a bad ruling on this issue (20 minutes of observation was enough) - but don't be too discouraged, because the case was decide based on state law in California and there are some clues that help you frame your argument - www.ca9.uscourts.gov/datastore/opinions/2009/02/13/0755469.pdfIn the case, the school was obligated under a state law to give the outside evaluator equal time as the school district's evaluator. Even though the district only allowed 20 minutes (and the inside person was allowed 90 plus minutes), the court said it didn't matter because it didn't make a different in the expert's opinion, AND because the expert could have come into the school on separate days for additional 20 minute periods and chose not to. So you need to argue that by limiting the time, you and your doctor will not be able to meaningfully participate in the process. You also need to say that the time limit will keep the doctor from gathering sufficient information to come to a well-reasoned opinion/diagnosis - for my son, for example, it would be important to see him in class, during group activities, and in less structured time like P.E. and lunch. Also, offer to have the doctor come on more than one day (if you can talk the person into doing it - in my view this raises the cost for the parent and is really an unfair burden.....). Hope this helps, jw
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Post by vp4 on Jun 8, 2009 18:13:51 GMT -5
School finally responded to my attorney's request for copies of records by asking for 25 cents a copy. Is this normal practice? It took these clowns 2 weeks to come up with that.
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Post by sld123 on Jun 8, 2009 18:30:07 GMT -5
ask dana how to get the free ones
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Post by mamak on Jun 8, 2009 18:32:30 GMT -5
If you request them yourself and say it is a hardship to pay they have to provide them for free.
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Post by vp4 on Jun 8, 2009 18:36:01 GMT -5
It is really not a hardship for me but what I am aggravated about is the two week wait to ask for payment. It took the case manager one week after my request to respond to call from learning consultant to set up a classroom observation. I guess the delaying, postponing, etc., has begun.
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Post by dihicks6 on Jun 8, 2009 18:46:15 GMT -5
I know that your attorney wants the copies of the records, but by requesting that they copy and send them, they have the choice to leave things out, whereas if you went in and did the records review, there is less of a chance of that happening. Two weeks isn't too bad, I've heard of parents that have waited months, or until they filed with the state and FERPA.
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Post by vp4 on Jun 8, 2009 18:52:47 GMT -5
I am actually wondering why they have some 370 pages as I didn't see that many pages when I reviewed the special ed folder for my son. May be they are keeping things from me and I should go in and review the records again.
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Post by sld123 on Jun 8, 2009 19:01:19 GMT -5
catalog and get them to certify
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Post by sld123 on Jun 23, 2009 7:58:55 GMT -5
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
ORDER
OAL DKT. NO. EDS13813-08
AGENCY DKT. NO. 2009 13961
S.B. AND K.B. ON BEHALF OF P.B.,
Petitioners,
v.
PARK RIDGE BOARD OF EDUCATION,
Respondent.
Beth A. Callahan, Esq., for petitioners (Callahan & Fusco, attorneys)
Paul C. Kalac, Esq., for respondent (Parker McCay, attorneys)
BEFORE RICHARD McGILL, ALJ:
This matter involves a request by S.B. and K.B. (hereinafter "petitioners" or "parents") for a due process hearing on behalf of their three-year-old daughter, P.B., who is eligible for special education and related services as a preschool child with a disability based upon a diagnosis of autism. The primary relief sought by petitioners in this proceeding is reimbursement for their unilateral placement of P.B. initially in a home-based program and subsequently at the Institute for Educational Achievement.
The central allegation in the request for a due process hearing is that petitioners have not been able to determine whether the Preschool Disabled Valley Model Program, known as the Sullivan Center, which is the placement proposed by the Park Ridge Board of Education (hereinafter "respondent"), would be appropriate for P.B., because the Sullivan Center has refused to allow their expert to observe the program proposed for P.B. The Sullivan Center is an out-of-district public school operated by the Westwood Regional Board of Education (hereinafter "Westwood"). Petitioners now seek an order excluding all evidence concerning the Sullivan Center, because respondent has failed to comply with an Order dated January 28, 2009, requiring respondent in specific terms to provide petitioners' expert access to the Sullivan Center to conduct an observation.
PROCEDURAL HISTORY
The request for a due process hearing on behalf of P.B. was filed with the Office of Special Education on August 14, 2008. The matter was transmitted to the Office of Administrative Law on December 4, 2008, for a hearing in accordance with 20 U.S.C.A. � 1415 and 34 CFR. � 300.511. Hearings have been scheduled and adjourned several times for reasons related mainly to petitioners' efforts to have their expert conduct an observation at the Sullivan Center.
On January 13, 2009, petitioners filed a motion for Partial Summary Judgment or in the alternative to suppress all evidence in relation to the Sullivan Center. The basis for the motion was that petitioners had hired an expert, Dr. Anita Breslin, to evaluate P.B.'s needs and the potential programs. Despite petitioners' requests, an observation of the Sullivan Center by Dr. Breslin did not take place. Thereafter, petitioners withdrew their motion for Partial Summary Decision by letter dated January 15, 2009, with the balance of the motion still pending. Respondent's response was received on January 20, 2009, arguing inter alia that suppression of evidence was too harsh where petitioners did not first seek an order to compel discovery. An oral argument in regard to the motion was conducted on the same date. At the end of the oral argument, the undersigned directed petitioners' attorney to submit a letter specifying details as to the requested observation.
On January 27, 2009, the undersigned received from petitioners' attorney a letter and form of order setting forth details for the requested observation. Satisfied with the details set forth in the form of Order, the undersigned issued an Order dated January 28, 2009, ordering as follows: (1) the motion to suppress respondent's evidence regarding the Sullivan Center was denied; (2) respondent was ordered to provide discovery in the form of an observation of the Sullivan Center, information and materials in accordance with the terms of the Order; and (3) petitioners may renew their motion to suppress in the event that respondent had not complied with the Order by February 13, 2009.
By letter dated February 4, 2009, respondent's attorney advised that respondent had every intention of complying with the Order dated January 28, 2009, but that Westwood would not agree to the terms in the letter dated January 27, 2009, from petitioners' attorney. In effect, the letter advised that Westwood would not comply with the Order dated January 28, 2009. By letter dated February 6, 2009, respondent further advised that it could not force Westwood to comply with the Order dated January 28, 2009.
By letter dated February 13, 2009, petitioners advised that respondent failed to comply with the Order dated January 28, 2009, and renewed their motion to suppress respondent's evidence regarding the Sullivan Center. Both parties submitted briefs and certifications in support of their respective positions, and an oral argument was conducted on March 13, 2009.
ISSUES
The issues in regard to reimbursement for unilateral placement by the parents are derived from N.J.A.C. 6A:14-2.10 and are as follows: (1) whether the school district has made a free appropriate public education available to the student in a timely manner; (2) whether the private placement is appropriate; and (3) whether the cost of reimbursement should be reduced or denied in accordance with N.J.A.C. 6A:14-2.10(c). The issues with respect to the requested sanction pursuant to N.J.A.C. 1:1-14.14 are as follows: (1) whether the Order dated January 28, 2009, is valid and lawful; (2) whether respondent failed to comply with the Order dated January 28, 2009; (3) if so, whether the failure was unreasonable; and (4) whether the circumstances warrant the requested sanction.
LEGAL FRAMEWORK
As a recipient of Federal funds under the Individuals with Disabilities Education Act ("IDEA" or "Act"), 20 U.S.C.A. � 1400 et seq., the State of New Jersey must have a policy that assures all children with disabilities the right to a free appropriate public education. 20 U.S.C.A. � 1412. A free appropriate public education includes special education and related services. 20 U.S.C.A. � 1401(9). The requirement of a free appropriate public education is implemented in New Jersey through regulations codified at N.J.A.C. 6A:14-1.1 et seq. The responsibility to provide a free appropriate public education is specifically placed on the district board of education. N.J.A.C. 6A:14-1.1(d).
In regard to procedural requirements, any party shall have the opportunity to present a complaint in regard to educational placement of a child or the provision of a free appropriate public education. 20 U.S.C.A. � 1415(b)(6). The parents shall have the opportunity for an impartial due process hearing in regard to such complaint. 20 U.S.C.A. � 1415(f)(1)(A).
PETITIONERS' MOTION
Petitioners maintain that respondent failed to comply with the Order dated January 28, 2009, requiring respondent to provide an opportunity for petitioners' expert to conduct an observation at the Sullivan Center, that said failure has the effect of denying petitioners the opportunity to present a case in regard to the issue whether the proposed placement at the Sullivan Center would provide P.B. with a free appropriate public education (FAPE), and that the circumstances warrant a sanction. In support of the motion, petitioners presented the certifications of their attorney, Beth A. Callahan, Esq., and their expert, Anita Breslin, Psy.D., BCBA. As a sanction for noncompliance with the Order dated January 28, 2009, petitioners seek suppression or exclusion of respondent's evidence related to the Sullivan Center.
RESPONDENT'S OPPOSITION
Respondent raises multiple arguments in opposition to petitioners' motion. First, respondent maintains that the Order dated January 28, 2009, is defective in several respects. Second, respondent contends that it attempted to comply, albeit on Westwood's terms as opposed to those set forth in the Order dated January 28, 2009. Third, respondent argues that an administrative law judge does not have the authority to impose a sanction in this context. Finally, respondent maintains that a sanction that suppresses or excludes its evidence concerning the Sullivan Center is too harsh.
ANALYSIS
The applicable regulation is N.J.A.C. 1:1-14.14(a), which provides in pertinent part as follows: "For unreasonable failure to comply with any order of a judge or with any requirements of this chapter, the judge may . . . 2. Suppress a defense or claim; 3. Exclude evidence; . . . or 5. Take other appropriate case related action. Respondent's opposition outlines the issues to be considered in regard to petitioners' motion.
Respondent offers several arguments to the effect that the Order dated January 28, 2009, is defective. First, respondent argues that it was not given the opportunity to comment on the proposed form of order submitted by petitioners prior to issuance of the Order dated January 28, 2009. As a corollary, respondent maintains that it remains willing to comply with the substance of the Order dated January 28, 2009, albeit only on terms acceptable to Westwood.
Consideration of the substance of this argument requires analysis of the respective proposals for the observation by the parents' expert. As reflected in the Order dated January 28, 2009, petitioners maintain that their expert needs the following: (1) 3.5 hours of observation of core instructional time in the classroom proposed for P.B.; (2) observation of related services; (3) up to an additional hour and a half to meet with all staff who would have worked with P.B. to have questions answered regarding the Sullivan Center program; and (4) documentation related to the proposed program including sample instructional programs from June 2008, sample graphs, a description of staff training protocol, a description of parent training services and a copy of the curriculum that would have been used for P.B.
By comparison, Westwood has a written policy setting forth observation guidelines as follows:
*
The duration of the program observation cannot exceed 20 minutes. *
The observation must be pre-scheduled. *
The observer must be accompanied by a faculty member or administrator for the duration of the observation. *
The observation of the program cannot disrupt the continuity of programming. *
The observer must preserve the confidentiality of students and staff. *
The observer is not permitted to interview staff and or students. *
The observer may submit questions in writing for follow-up by staff and or district administration. *
Audio and video recording is absolutely forbidden.
[Emphasis in original.]
By letter dated February 4, 2009, respondent's attorney advised that Westwood would relax its policy to allow petitioners' expert to observe the proposed program for one hour. According to the letter, both Westwood and respondent believe that one hour is more than sufficient time to observe the program. But Westwood would not agree to provide documentation or to allow petitioners' expert to interview its staff members.
One consideration is the specific need for the discovery. N.J.A.C. 1:1-10.1(c). The source of information concerning the specific need for discovery would be the certifications submitted by the parties. Consistent with N.J.A.C 1:1-12.4(a), the undersigned advised the parties by letter February 18, 2009, that any factual assertions should be supported by a certification. Dr. Breslin's certification states that without full access to the core components of the program offered for P.B. and the related documentation, she would not be able to determine the appropriateness of the proposed program. In addition, petitioners' attorney provided a certification detailing the expert's need for the various forms of discovery.
Respondent's attorney submitted a certification in which he stated that he sent the letter dated February 4, 2009, which includes the statement that both Westwood and respondent believe that an observation for one hour would be sufficient. But respondent presented no certification or affidavit from an educator stating that twenty minutes or one hour would be sufficient time for petitioners' expert to observe the Sullivan Center program. Likewise, there is no certification or affidavit from an educator stating that petitioners' expert would not need to see documentation related to the proposed program or any of the other items required by the Order dated January 28, 2009.
In evaluating the certifications, the undersigned has the benefit of having heard cases of the type previously and being familiar with the nature of the factual issues and the sort of testimony and exhibits to be presented at the hearing. With respect to the observation, the applied behavioral analysis (ABA) therapy would likely be provided by more than one individual. Petitioners' expert would need to see these individuals provide ABA therapy, and she would also need to see the related services including speech, occupational and physical therapy. The suggestion that twenty minutes or even one hour would be sufficient for the observation is completely unrealistic in relation to the needs of the outside expert. In contrast, petitioners' contentions as to the needs of their expert with respect to each item set forth in the Order dated January 28, 2009, are meritorious as setting forth realistic and specifically needed observations, material and information to prepare for the hearing in this matter.
Another consideration under N.J.A.C. 1:1-10.1(c) is the oppressiveness of the discovery request. In my view, the discovery set forth in the Order dated January 28, 2009, is not remotely onerous or oppressive in relation to the likely cost to the parents for their unilateral placement.
Respondent next argues that there is no specific provision authorizing the parents' expert to observe the proposed program. Respondent acknowledges that a parent must be given the opportunity to observe the proposed educational placement prior to implementation of the IEP in accordance with N.J.A.C. 6A:14-4.1(k), but respondent maintains that this provision does not apply to an outside consultant.
There are two difficulties with this argument. First, remedial social legislation is to be liberally construed to achieve its beneficent purposes. Squeo v. Comfort Control Corp., 99 N.J 588, 596 (1985). As such, IDEA should be read broadly to achieve its purposes. In this context, the parent needs the assistance of an expert to present a case. It would follow that the term "parent" should be read to authorize the parents' expert to observe the proposed program. More importantly, the presence of an express provision pertaining to the parent should not be read as an exclusion of all others. General provisions related to discovery such as N.J.A.C. 1:1-10.2(a)2 and 3 provide support for the Order dated January 28, 2009.
Respondent next argues that Westwood is not a party to the proceeding and therefore cannot be ordered to allow an observation. Further, respondent cannot compel Westwood to permit an observation.
The difficulty with this argument is that the district board of education is responsible for providing the child with a free appropriate public education and related services. N.J.A.C. 6A:14-1.1(d). Further, the district board of education retains this responsibility in the event of an out-of-district placement, e.g., N.J.A.C. 6A:14-4.3(d). Here, respondent brought Westwood into the case by selecting Westwood as the placement for P.B. Therefore, respondent remains responsible for the acts or omissions of Westwood with respect to P.B.'s education.
It follows from the above that respondent's arguments to the effect that the Order dated January 28, 2009, is defective are without merit. The next question is whether respondent complied with the Order dated January 28, 2009.
Respondent argues that it attempted to comply with the Order dated January 28, 2009, albeit on Westwood's terms. There are two difficulties with this argument. First, Westwood's terms do not equate to compliance with the provisions in the Order dated January 28, 2009. Second, the first step to comply with the Order was to provide written notice to Dr. Breslin as to the date for the observation. However, Dr. Breslin's certification indicates that she was never contacted with a date for the observation. And respondent has not provided a certification which states that a date was ever set for the observation. Under the circumstances, respondent's contention that it took any steps toward compliance with the actual provisions of the Order dated January 28, 2009, is without merit.
The next issue is whether the circumstances warrant a sanction and, if so, the nature thereof. In arguing that an administrative law judge does not have the authority to impose a sanction in a special education case, respondent relies on the fact that the special hearing rules applicable to special education, N.J.A.C. 1:6A-1.1 to -18.5, do not authorize a sanction for failure to comply with a discovery order.
It is true that the special hearing rules related to special education do not specifically authorize a sanction. But the special rules related to special education specifically provide that any aspect of notice and hearing not covered by the special rules shall be governed by the Uniform Administrative Procedure Rules contained in N.J.A.C. 1:1. N.J.A.C. 1:6A-1.1(a). The special rules apply to the extent that they are inconsistent with the general rules. Ibid. Here, the absence of a special rule on sanctions is not an inconsistency with the general rules, specifically, N.J.A.C. 1:1-14.14, but rather is an area not covered by the special rules. It follows that respondent's argument is without merit.
Respondent next argues that it offered a free appropriate public education to P.B. and that a denial of FAPE due to procedural violations may be found only in limited circumstances. The pertinent regulation is N.J.A.C. 6A:14-2.7(k), which provides as follows:
The decision made by an administrative law judge in a due process hearing shall be made on substantive grounds based on a determination of whether the child received a free, appropriate public education (FAPE). In matters alleging a procedural violation, an administrative law judge may decide that a child did not receive a FAPE only if the procedural inadequacies:
1. Impeded the child's right a FAPE;
2. Significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of FAPE to the child; or
3. Caused a deprivation of educational benefits.
There are two difficulties with respondent's argument. First, respondent's assertion that it provided a FAPE for P.B. is untested due to the fact that the parents have been denied the observation, materials and information that would be necessary to evaluate the program offered by the Sullivan Center. Under the circumstances, respondent's assertion that it offered a FAPE to P.B. is not accepted as true. Second, the above quote of N.J.A.C. 6A:14-2.7(k) tracks language contained in 20 U.S.C.A. � 1415(f)(3)(E)(ii). But the very next provision, 20 U.S.C.A. � 1415(f)(3)(E)(iii), states as follows: "Rule of construction. Nothing in this subparagraph shall be construed to preclude a hearing officer from ordering a local educational agency to comply with the procedural requirements of this section." This means that 20 U.S.C.A. � 1415(f)(3)(E)(ii), and therefore N.J.A.C. 6A:14-2.7(k), pertain to procedural violations as alleged in the due process complaint and not to the procedures related to the due process hearing itself.
One procedural requirement is the opportunity for an impartial due process hearing. 20 U.S.C.A. � 1415(f)((1)(A). In order to have a meaningful hearing, petitioners need the observation, materials and information required by the Order dated January 28, 2009. The Order dated January 28, 2009, was properly designed to guard petitioners' right to an impartial due process hearing, and it is now necessary to deal with non-compliance therewith. It follows that respondent's reliance on N.J.A.C. 6A:14-2.7(k) is misplaced.
Therefore, respondent's arguments that an administrative law judge does not have the authority to impose a sanction in a special education case are without merit. The remaining issues are whether the failure to comply with the Order dated January 28, 2009, was unreasonable and whether the circumstances warrant the requested sanction. These issues are interrelated and will be considered together.
Respondent maintains that suppression or exclusion of all evidence concerning the Sullivan Center as a sanction is too harsh. According to respondent, a lesser action such as an order to compel discovery should be taken before imposing a harsh sanction such as suppression or exclusion of evidence. The difficulty with respondent's argument is that this action has already been taken in this matter. Petitioners filed their original motion to suppress all evidence related to the Sullivan Center on January 13, 2009. By Order dated January 28, 2009, petitioners' motion to suppress evidence related to the Sullivan Center was denied, and respondent was ordered to provide discovery. It follows that respondent's argument is without merit.
Respondent argues that exclusion of all evidence concerning the Sullivan Center is too harsh because that sanction would amount to suppression of its entire defense. Respondent's argument is unpersuasive for two reasons. First, exclusion of all evidence related to the Sullivan Center would not suppress respondent's entire defense. The certifications submitted by respondent clearly contain assertions of unreasonable actions by the parents. This would constitute a defense under N.J.A.C. 6A:14-2.10(c) and would not be impacted by the requested sanction.
The second reason is really the crux of the matter in regard to this motion. In order to determine whether the proposed sanction of suppression or exclusion of all evidence related to the Sullivan Center is warranted, it is essential to understand fully the parents' specific need for the discovery in question. The first consideration is that the determination of the adequacy of an individualized education program (IEP) is a matter of expert opinion. Johnston by Johnston v. Ann Arbor Public Schools, 569 F.Supp 1502, 1508-09 (E.D. Mich. 1983). The testimony of a parent who is not an expert is not sufficient to rebut unanimous expert opinion presented by a school district. Id., at 1509. It follows that expert testimony is critically important to petitioners as they would have essentially no chance of winning the case without it.
In order for the testimony of an expert in the form of opinions or inferences to be admissible, it must be based on facts and data perceived by or made known to the witness at or before the hearing. N.J.A.C. 1:1-15.9(b)1. This is a version of the net opinion rule. It has long been established that an expert's bare conclusion, unsupported by factual evidence, is inadmissible. Buckelew v. Grossbard, 87 N.J 512, 524 (1981). It follows from this rule that the testimony of Dr. Breslin would be inadmissible unless she has facts and data concerning the program proposed for P.B. at the Sullivan Center.
The certifications submitted on behalf of petitioners indicate that Dr. Breslin needs facts and data in the form of observations, documents and information from personnel at the Sullivan Center. The need of observation of the personnel such as teachers, aides and therapists is self-evident for Dr. Breslin to evaluate the proposed program. The need for documents may not be so obvious, but written records of programs used in ABA are critically important. Finally, it seems evident to the undersigned that information from personnel at the Sullivan Center would be essential in addition to written materials and observations of sufficient length. All of these types of discovery are essential for the parents' consultant to present expert opinion. Without this discovery, the parents are almost certain to lose the issue of whether respondent offered P.B. a FAPE and therefore the entire case.
Westwood's observation guidelines must be considered in relation to the question of the reasonableness of respondent's failure to comply with the Order dated January 28, 2009. It is noteworthy that no certifications were submitted in defense of Westwood's observation guidelines. One provision of the guidelines states that the duration of the program observation cannot exceed twenty minutes. For her purposes, Dr. Breslin would need to observe the teacher(s), possibly aides, and therapists. It is evident that twenty minutes would be woefully inadequate for Dr. Breslin's purposes. Respondent's attorney mentioned a possible relaxation of the limit to one hour, but this amount of time would also be inadequate for Dr. Breslin's purposes.
It is noteworthy that there is no provision in Westwood's guidelines for review of materials, but respondent's attorney indicated in a letter dated February 4, 2009, that Westwood would not provide the information requested by petitioners. This decision would deny Dr. Breslin material that would be essential for her to form an opinion about the program at the Sullivan Center.
The observation guidelines also contain a provision to the effect that the observer is not permitted to interview staff or students. Putting aside interviews of students, it seems evident that in addition to the observation and materials, Dr. Breslin would need someone to explain the proposed program.
As noted above, no one offered any rationale to support Westwood's observation guidelines. In addition, Westwood's guidelines and unwillingness to provide written materials would deny an outside consultant the essentials of an observation of sufficient duration, written materials and information from personnel at the Sullivan Center, i.e., the facts and data, that would be necessary to offer admissible expert opinion. These circumstances indicate that Westwood's observation guidelines and policies are unreasonable. Further, Westwood's observation guidelines seem to be calculated to deny an outside consultant the facts and data necessary to give admissible expert testimony. In the absence of legitimate reasons for these policies, the inference is warranted that the Sullivan Center intended the natural consequences of its guidelines and policies. This amounts to bad faith.
The final question is whether Westwood's unreasonableness and bad faith should be attributed to respondent. The problem is that either petitioners will be without admissible expert testimony as the result of Westwood's unreasonableness and bad faith and in a position where in all likelihood they will lose their case or respondent will have its evidence concerning the Sullivan Center excluded and therefore in a position where it will lose on the issue whether it offered a FAPE.
There is no legitimate reason for petitioners to suffer as the result of Westwood's unreasonableness and bad faith. In contrast, respondent brought Westwood into the proceeding by arranging for placement of P.B. at the Sullivan Center. Further, respondent continues to be responsible for P.B.'s education in accordance with N.J.A.C. 6A:14-1.1(d). Finally, the burden on respondent is not quite as heavy in that there are two other issues on which respondent could win the case. It follows that respondent should bear responsibility for Westwood's unreasonableness and bad faith.
The undersigned is well aware of the impact that the proposed sanction will have on respondent. But in view of the severe impact that failure to impose the requested sanction would have on petitioners, I CONCLUDE that exclusion of all evidence concerning the Sullivan Center as the placement for P.B. is warranted under the circumstances of this case.
Accordingly, it is ORDERED that all evidence concerning the Sullivan Center as the placement for P.B. shall be excluded in this matter.
April 21, 2009______ _______________________________
DATE RICHARD McGILL, ALJ
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OAL DKT. NO. EDS13813-08
OAL DKT. NO. EDU13813-08
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Post by sld123 on Jun 23, 2009 8:05:21 GMT -5
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
ORDER
OAL DKT. NO. EDS13813-08
AGENCY DKT. NO. 2009 13961
S.B. AND K.B. ON BEHALF OF P.B.,
Petitioners,
v.
PARK RIDGE BOARD OF EDUCATION,
Respondent.
Beth A. Callahan, Esq., for petitioners (Callahan & Fusco, attorneys)
Paul C. Kalac, Esq., for respondent (Parker McCay, attorneys)
BEFORE RICHARD McGILL, ALJ:
This matter involves a request by S.B. and K.B. (hereinafter "petitioners" or "parents") for a due process hearing on behalf of their three-year-old daughter, P.B., who is eligible for special education and related services as a preschool child with a disability based upon a diagnosis of autism. The primary relief sought by petitioners in this proceeding is reimbursement for their unilateral placement of P.B. initially in a home-based program and subsequently at the Institute for Educational Achievement.
The central allegation in the request for a due process hearing is that petitioners have not been able to determine whether the Preschool Disabled Valley Model Program, known as the Sullivan Center, which is the placement proposed by the Park Ridge Board of Education (hereinafter "respondent"), would be appropriate for P.B., because the Sullivan Center has refused to allow their expert to observe the program proposed for P.B. The Sullivan Center is an out-of-district public school operated by the Westwood Regional Board of Education (hereinafter "Westwood"). Petitioners now seek an order excluding all evidence concerning the Sullivan Center, because respondent has failed to comply with an Order dated January 28, 2009, requiring respondent in specific terms to provide petitioners' expert access to the Sullivan Center to conduct an observation.
PROCEDURAL HISTORY
The request for a due process hearing on behalf of P.B. was filed with the Office of Special Education on August 14, 2008. The matter was transmitted to the Office of Administrative Law on December 4, 2008, for a hearing in accordance with 20 U.S.C.A. � 1415 and 34 CFR. � 300.511. Hearings have been scheduled and adjourned several times for reasons related mainly to petitioners' efforts to have their expert conduct an observation at the Sullivan Center.
On January 13, 2009, petitioners filed a motion for Partial Summary Judgment or in the alternative to suppress all evidence in relation to the Sullivan Center. The basis for the motion was that petitioners had hired an expert, Dr. Anita Breslin, to evaluate P.B.'s needs and the potential programs. Despite petitioners' requests, an observation of the Sullivan Center by Dr. Breslin did not take place. Thereafter, petitioners withdrew their motion for Partial Summary Decision by letter dated January 15, 2009, with the balance of the motion still pending. Respondent's response was received on January 20, 2009, arguing inter alia that suppression of evidence was too harsh where petitioners did not first seek an order to compel discovery. An oral argument in regard to the motion was conducted on the same date. At the end of the oral argument, the undersigned directed petitioners' attorney to submit a letter specifying details as to the requested observation.
On January 27, 2009, the undersigned received from petitioners' attorney a letter and form of order setting forth details for the requested observation. Satisfied with the details set forth in the form of Order, the undersigned issued an Order dated January 28, 2009, ordering as follows: (1) the motion to suppress respondent's evidence regarding the Sullivan Center was denied; (2) respondent was ordered to provide discovery in the form of an observation of the Sullivan Center, information and materials in accordance with the terms of the Order; and (3) petitioners may renew their motion to suppress in the event that respondent had not complied with the Order by February 13, 2009.
By letter dated February 4, 2009, respondent's attorney advised that respondent had every intention of complying with the Order dated January 28, 2009, but that Westwood would not agree to the terms in the letter dated January 27, 2009, from petitioners' attorney. In effect, the letter advised that Westwood would not comply with the Order dated January 28, 2009. By letter dated February 6, 2009, respondent further advised that it could not force Westwood to comply with the Order dated January 28, 2009.
By letter dated February 13, 2009, petitioners advised that respondent failed to comply with the Order dated January 28, 2009, and renewed their motion to suppress respondent's evidence regarding the Sullivan Center. Both parties submitted briefs and certifications in support of their respective positions, and an oral argument was conducted on March 13, 2009.
ISSUES
The issues in regard to reimbursement for unilateral placement by the parents are derived from N.J.A.C. 6A:14-2.10 and are as follows: (1) whether the school district has made a free appropriate public education available to the student in a timely manner; (2) whether the private placement is appropriate; and (3) whether the cost of reimbursement should be reduced or denied in accordance with N.J.A.C. 6A:14-2.10(c). The issues with respect to the requested sanction pursuant to N.J.A.C. 1:1-14.14 are as follows: (1) whether the Order dated January 28, 2009, is valid and lawful; (2) whether respondent failed to comply with the Order dated January 28, 2009; (3) if so, whether the failure was unreasonable; and (4) whether the circumstances warrant the requested sanction.
LEGAL FRAMEWORK
As a recipient of Federal funds under the Individuals with Disabilities Education Act ("IDEA" or "Act"), 20 U.S.C.A. � 1400 et seq., the State of New Jersey must have a policy that assures all children with disabilities the right to a free appropriate public education. 20 U.S.C.A. � 1412. A free appropriate public education includes special education and related services. 20 U.S.C.A. � 1401(9). The requirement of a free appropriate public education is implemented in New Jersey through regulations codified at N.J.A.C. 6A:14-1.1 et seq. The responsibility to provide a free appropriate public education is specifically placed on the district board of education. N.J.A.C. 6A:14-1.1(d).
In regard to procedural requirements, any party shall have the opportunity to present a complaint in regard to educational placement of a child or the provision of a free appropriate public education. 20 U.S.C.A. � 1415(b)(6). The parents shall have the opportunity for an impartial due process hearing in regard to such complaint. 20 U.S.C.A. � 1415(f)(1)(A).
PETITIONERS' MOTION
Petitioners maintain that respondent failed to comply with the Order dated January 28, 2009, requiring respondent to provide an opportunity for petitioners' expert to conduct an observation at the Sullivan Center, that said failure has the effect of denying petitioners the opportunity to present a case in regard to the issue whether the proposed placement at the Sullivan Center would provide P.B. with a free appropriate public education (FAPE), and that the circumstances warrant a sanction. In support of the motion, petitioners presented the certifications of their attorney, Beth A. Callahan, Esq., and their expert, Anita Breslin, Psy.D., BCBA. As a sanction for noncompliance with the Order dated January 28, 2009, petitioners seek suppression or exclusion of respondent's evidence related to the Sullivan Center.
RESPONDENT'S OPPOSITION
Respondent raises multiple arguments in opposition to petitioners' motion. First, respondent maintains that the Order dated January 28, 2009, is defective in several respects. Second, respondent contends that it attempted to comply, albeit on Westwood's terms as opposed to those set forth in the Order dated January 28, 2009. Third, respondent argues that an administrative law judge does not have the authority to impose a sanction in this context. Finally, respondent maintains that a sanction that suppresses or excludes its evidence concerning the Sullivan Center is too harsh.
ANALYSIS
The applicable regulation is N.J.A.C. 1:1-14.14(a), which provides in pertinent part as follows: "For unreasonable failure to comply with any order of a judge or with any requirements of this chapter, the judge may . . . 2. Suppress a defense or claim; 3. Exclude evidence; . . . or 5. Take other appropriate case related action. Respondent's opposition outlines the issues to be considered in regard to petitioners' motion.
Respondent offers several arguments to the effect that the Order dated January 28, 2009, is defective. First, respondent argues that it was not given the opportunity to comment on the proposed form of order submitted by petitioners prior to issuance of the Order dated January 28, 2009. As a corollary, respondent maintains that it remains willing to comply with the substance of the Order dated January 28, 2009, albeit only on terms acceptable to Westwood.
Consideration of the substance of this argument requires analysis of the respective proposals for the observation by the parents' expert. As reflected in the Order dated January 28, 2009, petitioners maintain that their expert needs the following: (1) 3.5 hours of observation of core instructional time in the classroom proposed for P.B.; (2) observation of related services; (3) up to an additional hour and a half to meet with all staff who would have worked with P.B. to have questions answered regarding the Sullivan Center program; and (4) documentation related to the proposed program including sample instructional programs from June 2008, sample graphs, a description of staff training protocol, a description of parent training services and a copy of the curriculum that would have been used for P.B.
By comparison, Westwood has a written policy setting forth observation guidelines as follows:
*
The duration of the program observation cannot exceed 20 minutes. *
The observation must be pre-scheduled. *
The observer must be accompanied by a faculty member or administrator for the duration of the observation. *
The observation of the program cannot disrupt the continuity of programming. *
The observer must preserve the confidentiality of students and staff. *
The observer is not permitted to interview staff and or students. *
The observer may submit questions in writing for follow-up by staff and or district administration. *
Audio and video recording is absolutely forbidden.
[Emphasis in original.]
By letter dated February 4, 2009, respondent's attorney advised that Westwood would relax its policy to allow petitioners' expert to observe the proposed program for one hour. According to the letter, both Westwood and respondent believe that one hour is more than sufficient time to observe the program. But Westwood would not agree to provide documentation or to allow petitioners' expert to interview its staff members.
One consideration is the specific need for the discovery. N.J.A.C. 1:1-10.1(c). The source of information concerning the specific need for discovery would be the certifications submitted by the parties. Consistent with N.J.A.C 1:1-12.4(a), the undersigned advised the parties by letter February 18, 2009, that any factual assertions should be supported by a certification. Dr. Breslin's certification states that without full access to the core components of the program offered for P.B. and the related documentation, she would not be able to determine the appropriateness of the proposed program. In addition, petitioners' attorney provided a certification detailing the expert's need for the various forms of discovery.
Respondent's attorney submitted a certification in which he stated that he sent the letter dated February 4, 2009, which includes the statement that both Westwood and respondent believe that an observation for one hour would be sufficient. But respondent presented no certification or affidavit from an educator stating that twenty minutes or one hour would be sufficient time for petitioners' expert to observe the Sullivan Center program. Likewise, there is no certification or affidavit from an educator stating that petitioners' expert would not need to see documentation related to the proposed program or any of the other items required by the Order dated January 28, 2009.
In evaluating the certifications, the undersigned has the benefit of having heard cases of the type previously and being familiar with the nature of the factual issues and the sort of testimony and exhibits to be presented at the hearing. With respect to the observation, the applied behavioral analysis (ABA) therapy would likely be provided by more than one individual. Petitioners' expert would need to see these individuals provide ABA therapy, and she would also need to see the related services including speech, occupational and physical therapy. The suggestion that twenty minutes or even one hour would be sufficient for the observation is completely unrealistic in relation to the needs of the outside expert. In contrast, petitioners' contentions as to the needs of their expert with respect to each item set forth in the Order dated January 28, 2009, are meritorious as setting forth realistic and specifically needed observations, material and information to prepare for the hearing in this matter.
Another consideration under N.J.A.C. 1:1-10.1(c) is the oppressiveness of the discovery request. In my view, the discovery set forth in the Order dated January 28, 2009, is not remotely onerous or oppressive in relation to the likely cost to the parents for their unilateral placement.
Respondent next argues that there is no specific provision authorizing the parents' expert to observe the proposed program. Respondent acknowledges that a parent must be given the opportunity to observe the proposed educational placement prior to implementation of the IEP in accordance with N.J.A.C. 6A:14-4.1(k), but respondent maintains that this provision does not apply to an outside consultant.
There are two difficulties with this argument. First, remedial social legislation is to be liberally construed to achieve its beneficent purposes. Squeo v. Comfort Control Corp., 99 N.J 588, 596 (1985). As such, IDEA should be read broadly to achieve its purposes. In this context, the parent needs the assistance of an expert to present a case. It would follow that the term "parent" should be read to authorize the parents' expert to observe the proposed program. More importantly, the presence of an express provision pertaining to the parent should not be read as an exclusion of all others. General provisions related to discovery such as N.J.A.C. 1:1-10.2(a)2 and 3 provide support for the Order dated January 28, 2009.
Respondent next argues that Westwood is not a party to the proceeding and therefore cannot be ordered to allow an observation. Further, respondent cannot compel Westwood to permit an observation.
The difficulty with this argument is that the district board of education is responsible for providing the child with a free appropriate public education and related services. N.J.A.C. 6A:14-1.1(d). Further, the district board of education retains this responsibility in the event of an out-of-district placement, e.g., N.J.A.C. 6A:14-4.3(d). Here, respondent brought Westwood into the case by selecting Westwood as the placement for P.B. Therefore, respondent remains responsible for the acts or omissions of Westwood with respect to P.B.'s education.
It follows from the above that respondent's arguments to the effect that the Order dated January 28, 2009, is defective are without merit. The next question is whether respondent complied with the Order dated January 28, 2009.
Respondent argues that it attempted to comply with the Order dated January 28, 2009, albeit on Westwood's terms. There are two difficulties with this argument. First, Westwood's terms do not equate to compliance with the provisions in the Order dated January 28, 2009. Second, the first step to comply with the Order was to provide written notice to Dr. Breslin as to the date for the observation. However, Dr. Breslin's certification indicates that she was never contacted with a date for the observation. And respondent has not provided a certification which states that a date was ever set for the observation. Under the circumstances, respondent's contention that it took any steps toward compliance with the actual provisions of the Order dated January 28, 2009, is without merit.
The next issue is whether the circumstances warrant a sanction and, if so, the nature thereof. In arguing that an administrative law judge does not have the authority to impose a sanction in a special education case, respondent relies on the fact that the special hearing rules applicable to special education, N.J.A.C. 1:6A-1.1 to -18.5, do not authorize a sanction for failure to comply with a discovery order.
It is true that the special hearing rules related to special education do not specifically authorize a sanction. But the special rules related to special education specifically provide that any aspect of notice and hearing not covered by the special rules shall be governed by the Uniform Administrative Procedure Rules contained in N.J.A.C. 1:1. N.J.A.C. 1:6A-1.1(a). The special rules apply to the extent that they are inconsistent with the general rules. Ibid. Here, the absence of a special rule on sanctions is not an inconsistency with the general rules, specifically, N.J.A.C. 1:1-14.14, but rather is an area not covered by the special rules. It follows that respondent's argument is without merit.
Respondent next argues that it offered a free appropriate public education to P.B. and that a denial of FAPE due to procedural violations may be found only in limited circumstances. The pertinent regulation is N.J.A.C. 6A:14-2.7(k), which provides as follows:
The decision made by an administrative law judge in a due process hearing shall be made on substantive grounds based on a determination of whether the child received a free, appropriate public education (FAPE). In matters alleging a procedural violation, an administrative law judge may decide that a child did not receive a FAPE only if the procedural inadequacies:
1. Impeded the child's right a FAPE;
2. Significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of FAPE to the child; or
3. Caused a deprivation of educational benefits.
There are two difficulties with respondent's argument. First, respondent's assertion that it provided a FAPE for P.B. is untested due to the fact that the parents have been denied the observation, materials and information that would be necessary to evaluate the program offered by the Sullivan Center. Under the circumstances, respondent's assertion that it offered a FAPE to P.B. is not accepted as true. Second, the above quote of N.J.A.C. 6A:14-2.7(k) tracks language contained in 20 U.S.C.A. � 1415(f)(3)(E)(ii). But the very next provision, 20 U.S.C.A. � 1415(f)(3)(E)(iii), states as follows: "Rule of construction. Nothing in this subparagraph shall be construed to preclude a hearing officer from ordering a local educational agency to comply with the procedural requirements of this section." This means that 20 U.S.C.A. � 1415(f)(3)(E)(ii), and therefore N.J.A.C. 6A:14-2.7(k), pertain to procedural violations as alleged in the due process complaint and not to the procedures related to the due process hearing itself.
One procedural requirement is the opportunity for an impartial due process hearing. 20 U.S.C.A. � 1415(f)((1)(A). In order to have a meaningful hearing, petitioners need the observation, materials and information required by the Order dated January 28, 2009. The Order dated January 28, 2009, was properly designed to guard petitioners' right to an impartial due process hearing, and it is now necessary to deal with non-compliance therewith. It follows that respondent's reliance on N.J.A.C. 6A:14-2.7(k) is misplaced.
Therefore, respondent's arguments that an administrative law judge does not have the authority to impose a sanction in a special education case are without merit. The remaining issues are whether the failure to comply with the Order dated January 28, 2009, was unreasonable and whether the circumstances warrant the requested sanction. These issues are interrelated and will be considered together.
Respondent maintains that suppression or exclusion of all evidence concerning the Sullivan Center as a sanction is too harsh. According to respondent, a lesser action such as an order to compel discovery should be taken before imposing a harsh sanction such as suppression or exclusion of evidence. The difficulty with respondent's argument is that this action has already been taken in this matter. Petitioners filed their original motion to suppress all evidence related to the Sullivan Center on January 13, 2009. By Order dated January 28, 2009, petitioners' motion to suppress evidence related to the Sullivan Center was denied, and respondent was ordered to provide discovery. It follows that respondent's argument is without merit.
Respondent argues that exclusion of all evidence concerning the Sullivan Center is too harsh because that sanction would amount to suppression of its entire defense. Respondent's argument is unpersuasive for two reasons. First, exclusion of all evidence related to the Sullivan Center would not suppress respondent's entire defense. The certifications submitted by respondent clearly contain assertions of unreasonable actions by the parents. This would constitute a defense under N.J.A.C. 6A:14-2.10(c) and would not be impacted by the requested sanction.
The second reason is really the crux of the matter in regard to this motion. In order to determine whether the proposed sanction of suppression or exclusion of all evidence related to the Sullivan Center is warranted, it is essential to understand fully the parents' specific need for the discovery in question. The first consideration is that the determination of the adequacy of an individualized education program (IEP) is a matter of expert opinion. Johnston by Johnston v. Ann Arbor Public Schools, 569 F.Supp 1502, 1508-09 (E.D. Mich. 1983). The testimony of a parent who is not an expert is not sufficient to rebut unanimous expert opinion presented by a school district. Id., at 1509. It follows that expert testimony is critically important to petitioners as they would have essentially no chance of winning the case without it.
In order for the testimony of an expert in the form of opinions or inferences to be admissible, it must be based on facts and data perceived by or made known to the witness at or before the hearing. N.J.A.C. 1:1-15.9(b)1. This is a version of the net opinion rule. It has long been established that an expert's bare conclusion, unsupported by factual evidence, is inadmissible. Buckelew v. Grossbard, 87 N.J 512, 524 (1981). It follows from this rule that the testimony of Dr. Breslin would be inadmissible unless she has facts and data concerning the program proposed for P.B. at the Sullivan Center.
The certifications submitted on behalf of petitioners indicate that Dr. Breslin needs facts and data in the form of observations, documents and information from personnel at the Sullivan Center. The need of observation of the personnel such as teachers, aides and therapists is self-evident for Dr. Breslin to evaluate the proposed program. The need for documents may not be so obvious, but written records of programs used in ABA are critically important. Finally, it seems evident to the undersigned that information from personnel at the Sullivan Center would be essential in addition to written materials and observations of sufficient length. All of these types of discovery are essential for the parents' consultant to present expert opinion. Without this discovery, the parents are almost certain to lose the issue of whether respondent offered P.B. a FAPE and therefore the entire case.
Westwood's observation guidelines must be considered in relation to the question of the reasonableness of respondent's failure to comply with the Order dated January 28, 2009. It is noteworthy that no certifications were submitted in defense of Westwood's observation guidelines. One provision of the guidelines states that the duration of the program observation cannot exceed twenty minutes. For her purposes, Dr. Breslin would need to observe the teacher(s), possibly aides, and therapists. It is evident that twenty minutes would be woefully inadequate for Dr. Breslin's purposes. Respondent's attorney mentioned a possible relaxation of the limit to one hour, but this amount of time would also be inadequate for Dr. Breslin's purposes.
It is noteworthy that there is no provision in Westwood's guidelines for review of materials, but respondent's attorney indicated in a letter dated February 4, 2009, that Westwood would not provide the information requested by petitioners. This decision would deny Dr. Breslin material that would be essential for her to form an opinion about the program at the Sullivan Center.
The observation guidelines also contain a provision to the effect that the observer is not permitted to interview staff or students. Putting aside interviews of students, it seems evident that in addition to the observation and materials, Dr. Breslin would need someone to explain the proposed program.
As noted above, no one offered any rationale to support Westwood's observation guidelines. In addition, Westwood's guidelines and unwillingness to provide written materials would deny an outside consultant the essentials of an observation of sufficient duration, written materials and information from personnel at the Sullivan Center, i.e., the facts and data, that would be necessary to offer admissible expert opinion. These circumstances indicate that Westwood's observation guidelines and policies are unreasonable. Further, Westwood's observation guidelines seem to be calculated to deny an outside consultant the facts and data necessary to give admissible expert testimony. In the absence of legitimate reasons for these policies, the inference is warranted that the Sullivan Center intended the natural consequences of its guidelines and policies. This amounts to bad faith.
The final question is whether Westwood's unreasonableness and bad faith should be attributed to respondent. The problem is that either petitioners will be without admissible expert testimony as the result of Westwood's unreasonableness and bad faith and in a position where in all likelihood they will lose their case or respondent will have its evidence concerning the Sullivan Center excluded and therefore in a position where it will lose on the issue whether it offered a FAPE.
There is no legitimate reason for petitioners to suffer as the result of Westwood's unreasonableness and bad faith. In contrast, respondent brought Westwood into the proceeding by arranging for placement of P.B. at the Sullivan Center. Further, respondent continues to be responsible for P.B.'s education in accordance with N.J.A.C. 6A:14-1.1(d). Finally, the burden on respondent is not quite as heavy in that there are two other issues on which respondent could win the case. It follows that respondent should bear responsibility for Westwood's unreasonableness and bad faith.
The undersigned is well aware of the impact that the proposed sanction will have on respondent. But in view of the severe impact that failure to impose the requested sanction would have on petitioners, I CONCLUDE that exclusion of all evidence concerning the Sullivan Center as the placement for P.B. is warranted under the circumstances of this case.
Accordingly, it is ORDERED that all evidence concerning the Sullivan Center as the placement for P.B. shall be excluded in this matter.
April 21, 2009______ _______________________________
DATE RICHARD McGILL, ALJ
cl/sej
OAL DKT. NO. EDS13813-08
OAL DKT. NO. EDU13813-08
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Post by sld123 on Jun 25, 2009 15:11:36 GMT -5
did you get reimbursed?
"It is ironic that the District did not include the required certified school psychologist on the MDT, except indirectly Dr. Kay (via use of her report in the revised CER), and yet it refuses to recognize responsibility to pay for her time." Panel Decision at 9; R.R. at 11a. Because the District failed to include a psychologist as required and because the District used the report when it prepared the IEP for Lynn on the MDT, it follows that the District pay a fair portion of the cost. Accordingly, the order of the Panel is affirmed.
____________________________ BERNARD L. McGINLEY, Judge 13 IN THE COMMONWEALTH COURT OF PENNSYLVANIA CUMBERLAND VALLEY SCHOOL : DISTRICT, : Petitioner : : v. : : LYNN T., : NO. 3386 C.D. 1997 Respondent : O R D E R AND NOW, this 4th day of February, 1999, the order of the Special Education Due Process Appeals Review Panel in the above-captioned matter is affirmed. ____________________________ BERNARD L. McGINLEY, Judge IN THE COMMONWEALTH COURT OF PENNSYLVANIA CUMBERLAND VALLEY SCHOOL : DISTRICT, : Petitioner : : v. : NO. 3386 C.D. 1997 : ARGUED: December 9, 1998 LYNN T., : Respondent : BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge HONORABLE JOSEPH T. DOYLE, Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE DORIS A. SMITH, Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE JAMES R. KELLEY, Judge HONORABLE JIM FLAHERTY, Judge DISSENTING OPINION BY JUDGE PELLEGRINI FILED: February 4, 1999 I respectfully dissent for the same reasons set forth in Thane v. Cumberland Valley School District Board of School Directors, No. 1015 C.D. 1997 (filed February 4, 1999.) _______________________________ DAN PELLEGRINI, JUDGE Judges Smith and Flaherty join in this dissenting opinion.
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