Law Library

State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
FINAL DECISION
OAL DKT. NO. EDS 11416-99
AGENCY DKT. NO. 00-3231

J.O. AND S.O. ON BEHALF OF R.O.,
Petitioners,
v.
CALDWELL-WEST CALDWELL
BOARD OF EDUCATION,
Respondent.
__________________________

Staci J. Greenwald, Esq., appearing for petitioners

(Sussan & Greenwald, attorneys)


Theresa L. Moore, Esq., appearing for respondent

(McCarter & English, attorneys)

Record Closed: May 15, 2000 Decided: June 14, 2000

BEFORE MARGARET M. HAYDEN, ALJ:

STATEMENT OF THE CASE AND PROCEDURAL HISTORY

Pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C.A. §§1400 to 1491, the petitioners, parents on behalf of R.O., a 17 year old boy classified as multiply handicapped, requested a hearing to challenge the adequacy of the placement proposed by respondent Caldwell-West Caldwell Board of Education (District). The District alleged that it had offered to provide a free appropriate public education (FAPE) in the least restricted environment.


In accordance with 20 U.S.C.A. §1415 and 24 C.F.R. §§300.500 to 300.587, the Commissioner of Education requested that an administrative law judge be assigned to conduct a hearing in this matter. The matter was transmitted to the Office of Administrative Law (OAL) on October 20, 1999. The District on October 21, 1999, filed a motion for emergent relief to have R.O. placed in the offered therapeutic day placement during the pendency of the hearing. The matter was adjourned to allow time for both parties to further investigate alternative placements and discuss settlement. When the matter could not be settled, a hearing was held on March 3, 23, 31 and April 12 and 18, 2000. The final scheduled hearing date was May 15, 2000, when briefs were filed.


FACTS


Background


The majority of the facts in this case, although not the reasonable inferences therefrom, are undisputed, and I FIND the following FACTS in this case.


R.O. is a 17-year-old boy, born on April 9, 1983, who has been classified under IDEA as eligible for special education and related services. R.O. lives with his parents and one of two older siblings in the District, where he attended school from pre-school through eighth grade. Over the years, R.O. had been diagnosed with a multitude of disabling conditions including an obsessive-compulsive disorder, major depression, bi-polar disorder, an aggressive personality disorder, attention deficit disorder, an identity disorder of adolescence, motor control disturbances, and XYY syndrome.


From a very early age, R.O. exhibited difficulties in peer relationship both in and out of school. Throughout his childhood he made few friends and was isolated from his peers. Despite his average IQ, R.O. had also exhibited difficulties academically, particularly in mathematics. When he was in third grade his parents referred him to the Child Study Team (CST) for evaluation for eligibility for special education but the team found him ineligible. In fifth grade R.O. was classified as neurologically impaired and began to receive special education to address his disability. In April of fifth grade, he experienced his first suicide attempt, which caused the CST to request a psychiatric evaluation. The psychiatrist diagnosed an atypical depression and identity disorder of childhood and concluded that R.O. was not actually suicidal but was a child at risk. R.O. was then receiving private psychotherapy from a clinical psychologist and he began being treated by a private psychiatrist in sixth grade who prescribed medication.


Dr. David Gallina conducted his first neuropsychiatric examination of R.O. as the District's consulting psychiatrist on December 28, 1994. He recommended placement in a highly structured class where R.O. could receive one on one attention and be exposed to teachers skilled in the use of behavior modification techniques. The District continued R.O. in a mainstream fifth grade classroom in 1995 while providing him with two periods a day of resource room instruction for reading and math. For sixth and seventh grade R.O. continued in a mainstream classroom with resource room placement instruction in language arts and math. During seventh grade the CST recommended that R.O. receive counseling one time per week.


The CST again evaluated R.O. as part of triennial reevaluation during the 1997-98 school year. The school psychologist reported that R.O. presented as a very troubled adolescent with depressive and psychosomatic tendencies. He also tended to be egocentric and immature with a negative self-concept and feelings of inadequacy and insecurity. Interpersonal relationships were poor, unsatisfying and a source of anger and frustration. Adding to his distress, R.O. was experiencing sexual ambivalence or maladjustment.


In December 1997, Dr. Gallina again evaluated R.O. on behalf of the District and again recommended a small highly structured class where R.O. could receive one on one attention. As a result of the triennial reevaluations R.O.'s classification was changed from neurologically impaired to multiply handicapped. In eighth grade R.O. received math and reading in the resource room, a study skills class, and counseling with the school psychologist for a minimum of once a week. During eighth grade, R.O.'s grades were D's and C's.


In 1998 R.O.'s private psychologist referred him for genetic testing, which revealed that R.O. had an extra Y chromosome resulting in the XYY Syndrome. Symptoms of the syndrome in males include increased aggressiveness, feminine characteristics, increased height gain and sexual preoccupation. These traits had begun to manifest in R.O. by age 13.


At the end of eighth grade, the CST recommended that for ninth grade R.O. be placed in the self-contained special education classroom for all academic subjects, be mainstreamed for health and electives, and receive counseling one time per week. The parents disagreed with this placement based on the severe difficulties R.O. had experienced in the past with his peers in his school. As a result petitioners requested that R.O. be placed in an out of district special education day facility specifically geared towards working with children with emotional difficulties and the CST agreed. Accordingly, for the 1998-99 school year R.O. was placed at the Lafayette Learning Center, a therapeutic special education day facility in Morristown, New Jersey operated by the Morris School District.


Midway through R.O.'s ninth grade year, the CST conducted the annual review of R.O.'s eligibility for special services and issued an IEP dated February 9, 1999. The IEP continued the classification of multiply handicapped and continued to recommend placement at Lafayette Learning Center. In the IEP under the heading personal/social development/adoptive functioning, the CST reported that R.O. exhibited immaturities and irregularities in his social and emotional behavior. R.O. needed to have a clear set of rules in which to operate. His feelings were easily hurt and his perceptions often inaccurate. Self-esteem and self-confidence were diminished. R.O.'s ability to work constructively with his peers in the classroom setting was limited and he found it difficult to appropriately reach out to others in social situations. He engaged in odd or inappropriate topics of conversation with peers and staff. He was also socially isolated and withdrawn.


As a result of a conversation that R.O. had with members of the CST at the IEP meeting on February 9, 1999, in which he talked about wishing to do harm to his fellow students, the CST determined that he needed an emergency psychiatric evaluation before returning to class. On February 11, 1999, Dr. Alvin Friedland, a diplomat of the American Board of Psychiatry and Neurology, evaluated R.O. on behalf of the District. R.O. reported to the doctor that he was very depressed, anxious, and tense. R.O. was worried that he was going to lose control of himself and hurt someone. He told the doctor that he needed a break from school and said that perhaps he could benefit from in-patient treatment at a mental hospital. He told the doctor that many times he thought of killing himself by cutting his wrist. Dr. Friedland concluded in his report that R.O. was a very emotionally disturbed youngster with the potential of acting out and very likely could hurt someone if he is allowed to continue with his present pattern of thinking. In his mental trend, he presents signs of marked aggressive and violent tendencies with the fear of losing control. (Exhibit J-41). Because of his multiple diagnoses Dr. Friedland recommended that R.O. be placed in a therapeutic day program where he could receive comprehensive psychiatric treatment and continue his education. Dr. Friedland concluded that R.O.'s prognosis was guarded and depended on treatment.


On February 19, 1999, R.O. was hospitalized in the adolescence psychiatric unit of St. Clare's Hospital. When he got out, the parents and CST visited some potential placements for R.O. to attend rather than the Lafayette Learning Center. One of the school was the Benway School, a private therapeutic day school in Wayne, New Jersey, which R.O. considered attending. Eventually, R.O. decided not to make a change but rather to continue his education at Lafayette.


In June 1999 Frank Busse, principal at Lafayette Learning Center, notified Dr. Lisa Menza, the case manager of the CST, that Lafayette Learning Center would not provide a placement for R.O. for the 1999-2000 school year. According to Mr. Busse, Lafayette recognized that the staff was not able to protect R.O. from being verbally taunted and abused by his peers in the program. As a result of difficulties between R.O. and some of the students, the staff had begun to contained him within the office for all academic subjects while allowing him to participate in art and computer work with much younger students. Dr. Busse pointed out, It is also evident that his affective involvement, at this time, is more critical and warrants an environment that can provide him with more individualized attention in a classroom setting and a greater degree of crisis and personal intervention as needed. We are not staffed in a way that can meet these critical needs at this time. (Exhibit J-48).


On June 17, 1999, R.O. was again admitted to St. Clare's Hospital, Newton, New Jersey for a psychiatric admission after a suicide attempt. He was discharged on June 24, 1999. In August 1999, Dr. David Gallina conducted a neuropsychiatric evaluation, this time at the parents' request, and issued a report dated August 21, 1999. He concluded that R.O. continued to be diagnosed with attention deficit disorder, residual type, identity disorder of adolescence and diagnosed R.O. with obsessive-compulsive disorder. He found a mixed specific developmental disorder, XYY chromosome abnormality by history, motor control disturbance and cognitive or central processing difficulties.


In September 1999, at the beginning of R.O.'s tenth grade, an IEP meeting was held during which the CST recommended that R.O. be placed at an out-of-district school for children with learning disabilities. The IEP also recommended a minimal counseling amount of five days per week 20 minutes per day, crisis intervention and additional counseling when needed and warranted. For 1999-2000 school year, R.O. was accepted at the Benway School, a private therapeutic day school in Wayne, New Jersey. As the parents did not agree that R.O. should be placed in another therapeutic day setting and requested a residential setting, they filed a due process petition on October 4, 1999. R.O. was placed on home instruction pending resolution of the dispute and has been receiving home instruction at the public library for ten hours per week since that time.


Following discussions between the parties on the return date of an Emergency Relief Motion by the District to have R.O. ordered to attend Benway, R.O. applied to at least a dozen highly therapeutic residential facilities and has been rejected by all but one, San Marcos Treatment Center. For example the Pathway School in Pennsylvania rejected R.O. as it could not provided him with the intensity and structure he required in order to make progress. The Kolburne School in Massachusetts decided that R.O. was not an appropriate candidate due to his serious history of sexually reactive behavior, aggression and suicidal ideation making him a safety risk. Hillcrest Center in Massachusetts stated that he did not make placement criteria due to his documented sexual offenses. The Learning Center decided that its open campus and community involvement was inappropriate because R.O. needed a more restrictive setting. The Pine Residential Treatment Center determined that R.O. was an inappropriate candidate as he would be too disruptive as well as a high risk. The DeSisto School determined that R.O. was not a candidate for admission because although his significant emotional difficulties were within the scope of their services, his cognitive and central processing difficulties rule out the possibility of his acceptance. Cognitive difficulties or impairments restrict the usefulness of traditional individual and group therapies, as well as many behavioral approaches. R.O.'s defective conceptual and symbolic thinking, effecting his problem solving and abstraction abilities and his understanding of some social connections, would limit the benefit of the DeSisto therapeutic program. (Exhibit J-72). The East Mountain Youth Lodge determined that it could not provide adequate treatment to individual who exhibit history of sexual acting out as it did not have specialized treatment for those behaviors. Kids Peace National Center decided that R.O. would not benefit from its residential program because R.O. required more intense psychiatric services and a higher level of supervision than its program provided.


The San Marcos Health Center in San Marcos, Texas is included in the directory of the New Jersey Department of Education entitled Approved Out-of-District Private Schools for the Disabled for 1999-2000. On March 27, 2000, the admission coordinator wrote that R.O. was clinically accepted for placement in a program that specialized in working with individuals with a history of sexually offending behavior. An initial treatment evaluation would take place at the New Heights Unit at San Marcos Treatment Center but transfer was likely to the Threshold Unit in Austin, Texas. After a very thorough evaluation and screening, treatment would entail medication management and intensive therapeutic services. R.O. would see a psychiatrist on a weekly basis and receive intensive group therapy and individual therapy, behavior programming training and continuous staff coverage. The Threshold Unit is a cognitive behavioral-based program that included written assignment with an emphasis on relapse prevention techniques. Specific sex offenders group and generalized group psychotherapy sessions would address healthy sexuality, anger management, conflict resolution, sexual and nonsexual thinking areas, and family issues. An on-site school accredited by the Southern Association of Colleges and Schools and approved by the Texas Educational Agency provides academic services. Educational and vocational services are based on a patient's need, potential, and capacities and will be reflected in the IEP. The academic program is closely aligned with the unit program so that services will be implemented within the context of total development. Teachers are aligned with specific units to facilitate communication between the units and the classroom and R.O. will be taught that his personal life and education/occupation life have continuity in his day-to-day experiences.


The San Marcos behavior shaping approach is an integral part of the structured daily routine at the treatment center. The behavior shaping approach involved teaching effective self-regulation and self-management skills to adolescent whose emotional problems are complicated by impulsive, explosive, self-abusive, or aggressive behaviors. Using positive behavior modification methods based on sound psychological and developmental theory, clinicians have developed and implemented unique behavior shaping techniques that minimize behavior problems and assist patients in learning effective self-management skills. The behavior shaping approach consists of two distinct phases, which respect the developmental progression of each resident. Phase One focuses on stabilization of the resident. This is accomplished by providing effective responses to behavioral problems, while fostering appropriate behaviors and self-management episodes, through a scheduled reinforced pattern. During this phase, the resident learns to modify his behavior with staff assistance and feedback during specific time segments throughout a 16-hour program day. As the resident's self-management skills grow, frequency of staff intervention decreases, allowing the resident to develop alternative skills to manage every day life events. Successful completion of Phase One leads to Phase Two focusing on advanced skills development necessary to function within a community, academic, or job setting. Phase Two provides opportunity for personal growth so that the resident can learn to resolve underlying and recurring problems. The behavior shaping treatment is further described in the San Marcos brochure (Exhibit J-79) as followed:


San Marcos Treatment Center and Oaks Treatment Centers behavior shaping approach differs from traditional behavior modification techniques in that it places 80 to 90 percent of the responsibility for self-regulation, self-management on an individual and community, a responsibility to which residents respond extremely well. Behavior shaping is based on repetition and frequency of staff interaction and training, not just duration of consequences. It remains positively focused on developmental steps made by each resident, which are promoted through staff feedback and privilege attainment.


The mechanism of this program consists of a program card that residents carry with them throughout the day identifying their 16-hours structured daily programming. The card provides a schedule of opportunities for the resident to interact with staff who provides feedback on their ability to attend to task without disruption and serve as a tangible reminder, especially for those who are less focused and have shorter attention spans, to manage their own behaviors.


Each resident has a program-specific schedule including individual and group therapies, family therapies and experimental therapies and activities to develop social and practical skills, while learning to solve problems without resorting to aggressive or impulsive action that have proved to be harmful to themselves or others. Eventually, the resident finds that he/she has developed a consistent pattern of positive behavior.


Since instituting these behavior shaping programs at the San Marcos Treatment Center and the Oaks Treatment Center, a noticeable reduction in explosive, aggressive, and impulsive behaviors had been recorded. Families are taught the techniques so that structure can continue at home with similar result after discharge.


The record revealed that during much of R.O.'s education he was also subjected to numerous stressors at home. He had an intense rivalry and antagonism for his older sister. His parents separated for about two years beginning when he was in seventh grade, although the children continued to live in the family and the parents switched residences on a weekly basis. For some time both his parents had problems with alcoholism although both are on the road to recovery. He has told doctors that he had sexually molested a young cousin a few years ago which resulted in a great deal of family trauma. He had also been a victim of a sexual attack in a bookstore at the age of 13. He also became sexually active and begun to have unprotected sexual encounters. He had brief hospitalizations for acute psychiatric problems at least four times, the last one in March 2000.


Disputed Testimony


Dr. Lisa Menza


Dr. Lisa Menza holds a Ph.D. in clinical psychology and is certified as a school psychologist in New Jersey. For the last four years, Dr. Menza had been employed by the District and is R.O.'s case manager. Dr. Menza testified that Lafayette Learning Center was a highly academic program that also addressed the emotional and social needs of classified students. While at Lafayette R.O. had almost daily conduct with the psychiatric social worker, Mary Marinucci, for individual counseling as well as group counseling with the psychiatric nurse on a weekly basis. R.O. also had available intervention crisis as needed, which he used daily. In February 1999, Dr. Friedland recommended that R.O. be placed in a highly therapeutic day setting where he could receive comprehensive psychiatric treatment and continue with his education. In Dr. Menza's opinion, R.O.'s continued placement at Lafayette complied with Dr. Friedland's recommendation.


In Dr. Menza's opinion R.O. made progress in academics at Lafayette. However, in social interaction and emotional areas he reached a plateau and never really advanced to the maturity of his chronological age or developed correct social behaviors. In Dr. Menza's opinion the Benway School is a highly therapeutic school, which could provide an appropriate education to R.O. in the least restrictive setting. To meet R.O.'s psychiatric needs wrap around services were available at some hospitals that had adolescent psychiatric units. The District did not believe that R.O. needed a residential program for educational reasons.


Alvin Friedland, M.D.


Dr. Alvin Friedland, who was qualified as an expert in psychiatry and neurology, testified on behalf of the District. In addition to the previously discussed February 1999 exam, Dr. Friedland reevaluated R.O. on December 3, 1999. R.O. had gained over 100 pounds in a year. He came across as still extremely insecure, having poor self-esteem, and his ability to relate with the thoughts and feelings of others was markedly impaired. R.O. has continued symptoms of ADD that interfered with his scholarship and his judgment. As part of the reevaluation, Dr. Friedland gave the Minnesota sex offender screening tool test in which R.O. scored as having a high degree potential as a sex offender. Dr. Friedland defined sexual offender as someone who would act out in an antisocial manner by committing sexual acts with someone against that person's will. Dr. Friedland also found that at that time of the evaluation R.O. had the potential to cause harm to others if not under control.


At the hearing, Dr. Friedland testified that the XYY chromosome abnormality suggested a clinical picture of tallness, undue aggressiveness and impulsivity, sometime a specific learning disability, and secondary adjustment problems. This chromosome abnormality accounted for many of R.O.'s behaviors such as his impaired sexual thinking, thoughts of inappropriate aggressiveness and negativity. An XYY male's aggressiveness is stimulated by anxiety and often manifests in sexual aggression.


Dr. Friedland thought that R.O. needed the benefits of a therapeutic day program to receive comprehensive psychiatric treatment along with a continuing educational program. A therapeutic day treatment program should contain all mental health modalities, psychological, psychiatric and social services. Along with R.O.'s mental health treatment he should have the opportunities to receive academic instruction.


Dr. Friedland thought that the appropriate placement was not a residential facility. He believed that a therapeutic day program, if properly structured with the proper wrap around service, was medically advisable for R.O. He also believed that R.O. needed more frequent monitoring of his medications, at least weekly for a few months rather than once a month as currently done by his private psychiatrist. He also believed that R.O.'s individual therapy should be provided by the psychiatrist monitoring the medication because a psychiatrist would have a better handle on everything that affected R.O.'s thinking.


In Dr. Friedland's opinion R.O. had a chronic illness but he could learn to live in the community if properly medicated. If R.O.'s medications were at the appropriate levels the crises that had appeared to date would be unlikely to reoccur and R.O. could continue to live at home. He would like to see psychiatric and psychological services wrapped around the educational program so that they went from approximately 8:00 a.m. to 9:00 p.m. He has seen similar patients to R.O. functioned in this type of setting. They would then have the weekends to be able to function in the real world. Since most therapeutic day schools are from 8:30 to 2:30, the therapeutic services would be delivered after school, as part of what he considered a medical component. In Dr. Friedland's opinion R.O. needed that medical component in order to benefit from the educational component. Until R.O. is medically stabilized by these therapeutic services he cannot benefit from education. In Dr. Friedland's opinion R.O. could benefit from residential placement for a period of time at San Marcos because he would probably be away from the stresses that he was experiencing. The doctor voiced a concern about the other people that R.O. would be exposed to there.


David Gallina, M.D.


Dr. David Gallina, who testified on behalf of petitioners, was qualified as an expert in psychiatry and neurology. Dr. Gallina had evaluated R.O. for the District in 1994 and 1997. In August 1999, at the request of the parents' attorney, he evaluated R.O. again for purposes of this case. In October 1999, Dr. Gallina also had given a written opinion that R.O. should not go to Benway based on his judgment that R.O. needed a residential placement where he can received needed assistance on continual basis 24 hours a day, seven days per week throughout the calendar year.


Because Dr. Gallina had seen R.O. three times over five years, he noted first hand a slow but steady deterioration of R.O.'s condition. Based on his long history with R.O. as well as reviewing all relevant records the doctor did not think that R.O. should again be placed in a therapeutic day school, which posed a grave risk of his becoming hostile and endangering himself or someone else. Indeed if R.O. should be placed in a day school placement without the benefit of 24 hours a day therapeutic services the potential for him injuring or harming himself or others would be great. Although R.O. needed to learn to socialize and act appropriately with people his own age, it could only be done in a controlled setting monitored 24 hours a day because, due to R.O.'s impaired reasoning, any perceived slight could very well prove lethal in an environment that does not have 24 hours per day component. The home instruction, although very restrictive, at least had the benefit of protecting R.O. from other students and other students from R.O.


Dr. Gallina noted that R.O.'s deterioration was clear despite the considerable intervention on the part of the parents, doctors, therapists, and the school system. R.O.'s overall clinical appearance was much more serious than previously noted and he was potentially a danger to himself and others despite intensive psychopharmacological treatment and therapy. Dr. Gallina felt that the special education placement at Lafayette was a good program and in many ways appropriate for R.O. but essentially it proved unsuccessful. As education encompasses social judgment, relationship to peers and staff, emotional judgment, and behavior management, these components have to be factored into any education setting for R.O. In Dr. Gallina's opinion R.O.'s neuropsychiatric needs were impacting his ability to learn and participate in his own education. R.O.'s learning problems were emotional, social, and behavioral, which rendered him incapable from participating in and benefiting from classroom teaching with other students. The spectrum of difficulty that he presented had progressively gotten worse, interfering not just with academics but also with his education in a broader sense as in his ability to grow and develop as a person so as to some day function in the world.


Dr. Gallina thought that one reason R.O. now had such difficulties with his behavior management was that his treatments had not been integrated, which was clearly detrimental. R.O. needed an integrated program in which he had exposure to professionals who have close communication and contact with each other within a program that would be appropriately responsive to his emotional, behavioral or other needs. Dr. Gallina felt strongly that this integration of multidisciplinary services must be available to R.O. on a continual basis 24 hours a day for the entire year. At the first point those services were not being applied to him, R.O. would begin to deteriorate. In Dr. Gallina's opinion if R.O.'s needs were not met now, when he gets out of school he will be a very dysfunctional person.


Dr. Gallina was worried that a theoretical wrap around program, which provided services from 8:00 a.m. to 9:00 p.m. had obvious weak links including the night, time hours, the bus, transition times and communication among the staff. In his opinion while an appropriate program might be possible to construct all of the pieces of the puzzle would have to be satisfactorily put together. In Dr. Gallina's opinion the appropriate program for R.O. would include psychiatric treatment, physician management of medication, an academic program, a social component, a counseling component, crisis intervention, and behavioral modification. It was essential for there to be therapeutic consistency in dealing with the issues that R.O. presents. The reason a lot of programs would not be successful with people like R.O. was because he was able to find the weak links in the program.


Frank Busse


Frank Busse, the principle of Lafayette Learning Center at the time R.O. attended, also testified on behalf of petitioner. Mr. Busse has a Masters Degree in special education and a variety of certifications from the New Jersey Department of Education. Mr. Busse was principal of Lafayette for 15 years until March 2000.


Mr. Busse testified that all the students attending Lafayette had significant behavioral issues. Lafayette had five full-time counselors on staff in order to address the students' academic needs as well as their social, emotional and behavioral needs. Despite the intensive intervention available to R.O. at Lafayette, his ability to function in that specialized setting deteriorated to the point where it was necessary for the staff to contain R.O. within the school office for all academic subjects. The aggressive, hostile and bizarre behaviors described by the staff in internal memos became standard behaviors for R.O. The staff could not find a way to break into his behavioral patterns even with much crisis counseling and daily contact with professionals with whom he had made connections.


In Mr. Busse's opinion R.O.'s social, emotional, and behavioral functioning impacted severely on his academic performance and his social, emotional and behavioral needs could not be separated from his academic need. In his opinion after working with R.O. for an academic year, R.O.'s needs could not be addressed within a therapeutic day school. Mr. Busse thought that R.O. needed but was not getting a consistency of approach for longer than just the normal school day. There was a structure built into the program at Lafayette with rules, regulations and expectations that the majority of the students, but not R.O., could meet on a regular basis. Because of R.O.'s needs Mr. Busse did not feel that a day school could provide the needed consistency because R.O. did not have the inner controls and the ability to generalize and internalize the external controls provided during the normal school day. Mr. Busse testified that most if not all of the behavioral interventions proposed by the District for the 1999-2000 school year had already been provided to R.O. at Lafayette. In June 1999 Mr. Busse advised R.O.'s parents that their child needed a residential placement.


ISSUES


The issues to be resolved are 1) did the District offer to provide R.O. a free appropriate public education in the least restrictive environment? 2) If not, does R.O. require a residential setting? 3) If a residential setting is required, is the San Marcos Treatment Center an appropriate placement?


LEGAL DISCUSSION AND CONCLUSION


The Individuals with Disability Education Act (IDEA), 20 U.S.C.A. §1401 et seq., makes available federal funds to assist states in providing an education for handicapped children. Receipt of those funds is conditioned on the state's compliance with the IDEA's goals and requirements. Lascari v. Bd. of Educ. of Ramapo-Indian Hills Reg. Sch. Dist., 116 N.J. 30, 33 (1989). New Jersey has enacted legislation, N.J.S. A. 18A:46-1 et seq., and adopted regulations, N.J.A.C. 6A:14-1 et seq., that assure, all handicapped children the right to a free, appropriate public education (FAPE) as required by 20 U.S.C.A. §1412 (1). See also Hendrick Hudson Dist. of Educ. v. Rowley, 458 U.S. 176, 181 (1982). The IDEA mandates that a handicapped child's FAPE must be tailored to the unique needs of that child through an individualized education program (IEP) and reviewed annually. Lascari, supra at 30, citing 20 U.S.C.A. §1414 (a)(5). Accordingly, each New Jersey District Board of Education shall provide a free, appropriate public education program and related services for educationally handicapped pupils in the least restrictive environments. N.J.A.C. 6A:14-2.1(a).


The IDEA requires that all children with disabilities must be provided with programs sufficient to confer some educational benefit. Rowley, 458 U.S. at 181 (1982). In examining the quantum of benefits necessary for an IEP to satisfy IDEA, the Third Circuit has held that IDEA calls for more than a trivial education benefit and requires a satisfactory IEP to provide significant learning and confer meaningful benefit in relationship to the child's potential. Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171, 184 (3d Cir. 1988). In a recent discussion of the necessary amount of educational benefit, the Third Circuit stated, the provision of merely `more than a trivial educational benefit' does not meet the [Polk] standard . . .. Rowley and Polk reject a bright-line rule on the amount of benefit required of an appropriate IEP in favor of an approach requiring a student-by-student analysis that carefully considers the student's individual abilities. Ridgewood Bd. of Ed. v. N.E., 172 F. 3d 238, 247 (3d Cir 1999).


The District argued that it has met its burden of proving by a preponderance of evidence that it had offered by the 1999-2000 IEP to provide R.O. a free appropriate public education in the least restrictive environment. The Benway School would provide meaningful educational benefits to R.O. as a therapeutic school for pupils with disabilities with a psychologist on staff, frequent individual and group counseling opportunities and use of behavior management techniques throughout the school day. The District also argued that there were therapeutic partial hospitalization programs in New Jersey where R.O. could go to school and then after the school he could attend a hospital or some other structured setting that would provide counseling, psychiatric, and social work services. Dr. Menza testified that such day treatment programs existed at various hospitals that have adolescence psychiatric unit and have a school affiliated with the treatment program. R.O.'s progress reports demonstrated that he obtained meaningful educational benefits last year in the Lafayette Learning Center. The reason to remove him from his home and place him in a residential setting was not for educational reasons but rather for his emotional health. Moreover, even if he required a residential setting, San Marcos was a medical facility and therefore not covered under IDEA as a related service.


The petitioners argued that the program offered for 1999-2000 school year did not provide an opportunity for significant learning and a meaningful education. Moreover, the hypothetical program of wrap around services was never actually offered and an appropriate one for R.O. may not exist. The evidence showed that R.O.'s emotional and educational needs are so intertwined that they cannot be separated. Therefore, because his psychiatric, social and emotional needs must be addressed in order for him to learn, R.O. is entitled to residential placement. As an approved out of district private school that can meet his educational, social and behavioral needs San Marcos is an appropriate placement.


The District has the burden of proving it offered to provide an appropriate education to a disabled child. Lascari, supra at 46. It is not necessary to make credibility findings as the relevant facts were not at issue so much as the inferences and opinions based on those facts.


R.O. had been classified as multiply handicapped or under the new regulations multiple disabilities which refers to concomitant impairments, the combination of which causes such severe educational problems that programs designed for the separate disabling conditions will not meet [R.O.'s] educational needs. N.J.A.C. 6A:14-3.5(c)6. See Statement of Eligibility in the IEP (Exhibit J-40). Thus, the premise of R.O. classification is that both his organic problems and his emotional problems adversely affect his educational performance and interfere with his ability to learn.


Plainly the concept of education encompasses more than academics. Congress intended the provision of educational services in IDEA to increase the personal independence and enhance the productive capacities of handicapped citizens. Kruelle v. New Castle Co. School District, 642 F. 2d 687,691 (3d Cir. 1981). Indeed Dr. Menza acknowledged that education covered more than just academics and included emotional and social components. Yet in stating that R.O. progressed academically in Lafayette, she admitted that he stagnated emotionally. Frank Busse, principal of Lafayette, certainly thought and I FIND that its program was not sufficient to meet R.O.'s many needs. Additionally, the question of how well R.O. did academically was unclear since his marks at the end of the year were based on a very limited and restrictive environment whereby he stayed in the school office and did work sheets. Dr. Friedland recommended a highly therapeutic day program with wrap around mental health services. The District said that Lafayette met Dr. Friedland's recommendation as a highly therapeutic day program and also offered Benway as a comparable program. I FIND that there is no evidence of any significant difference between the two programs or any evidence of how R.O's needs, which could not be met at Lafayette, could be met at Benway. While the IEP provides for daily counseling for R.O., as opposed to weekly, the evidence showed that R.O. actually had daily counseling at Lafayette to assist him in his behavioral problems and it was not enough. The CST developed a behavioral plan for the 1999-2000 school year but the undisputed evidence showed that Lafayette was using those very approaches to no avail. Hence, I FIND there is no evidence that Benway will be able to provide significant benefits or meaningful education. I CONCLUDE that the District has not met its burden of proving that it offered R.O. a free appropriate public education in the least restrictive environment by offering a placement at Benway in the 1999-2000 IEP.


The next question is whether R.O. needs a residential placement to obtain significant benefits from his education. Under the federal regulations, if placement in a public or private residential program is necessary to provide special education and related services to a child with a disability, the program, including nonmedical care and room and board, must be provided at no cost to the parent of the child. 34 C.F.R. 300-302. Where residential placement is sought, analysis must focus on whether full-time placement may be considered necessary for educational purposes, or whether the residential placement is a response to medical, social or emotional problems that are segregable from the learning process. Kruelle, supra at 693. In Kruelle parents sought residential placement of their profoundly retarded child with a history of emotional problems. Both the school authorities and the parents concluded that 24 hours residential placement was needed but the school argued that it had no responsibility for the residential component as it was needed due to the child's emotional problems. The court in Kruelle found the consistency of both programming and environment critical to avoid the stress-related problems which interfered fundamentally with the child's ability to learn mandated a residential program. Id. at 694. In reference to the mandate that the child be educated in the least restrictive environment possible, the court remarked if day school cannot provide an appropriate education it is, by definition, not a possible alternative. Id. at 695.


I FIND Dr. Gallina's testimony particularly convincing as he has seen R.O. three times over a five year period and he has seen first hand the deterioration of the child. Dr. Gallina stated that presently R.O. needed consistency over 24 hours a day 7 days a week of consistent behavior modification to address his numerous emotional and social issues. Moreover, Dr. Friedland said R.O.'s psychiatric, psychological and social needs must be addressed in order for R.O. to be able to learn. Thus, I FIND that the evidence shows that it is not possible to segregate R.O.'s social, emotional and behavioral issues from the learning process as they are necessarily intertwined. One of the observations made by Mr. Busse during R.O.'s ninth grade was that R.O. had difficulty with generalization. This is another reason for residential program to have consistency which can promote generalization that cannot be matched by a six hours a day for even a highly therapeutic program with a model behavior modification plan.


The District argued that it would be possible to wrap around other psychological, psychiatric and social services support so that he would have more than six hours of such services. Indeed, Dr. Friedland was not recommending just a regular school day but a placement with educational, mental health and social services provided for at least 13 hours. However, no such program was presented at the hearing in order for this tribunal to see the details of that program. Hence, no such program was presented that would admit R.O., that would be able to address his very specific problems, and that would guarantee the necessary consistency throughout the day. I FIND that the evidence shows that currently R.O. needs the consistency of a full-time residential program in order to be able to learn.


In D.B. v. Ocean Tp. Bd. of Educ., 985 F.S. 457, 503 (D.N.J. 1997) the District Court set forth several factors to determine if residential placement was necessary, including:


(1) The efforts made by the District in the local placement;

Comparison of benefits at local versus residential settings;

Effect of student's inclusion on other students in the local placement;

Physical or emotional conditions interfering with child's ability to learn in local placement;

Behaviors fundamentally interfering with child's ability to learn in local placement;

Health or educational professional working with the child recommending residential placement for educational purposes;

Child's unrealized potential needing residential placement;

Past experience pointing to residential placement;

Educational purpose of residential placement.


Applying these nine factors, I FIND that residential placement is necessary.


While the District had taken numerous good faith steps to include R.O. both in the District and outside the District, these efforts had proven unsuccessful due to the severity of R.O.'s disability. Because R.O. had been so unsuccessful in the local placement he needs the consistency and the supervision of the segregated setting. The local placement did not have a beneficial effect on the education of the other students as shown by the reaction of his peers to R.O. It is undisputed based upon his classification alone that R.O. experiences severe emotional conditions and engages in behavior as a result of these conditions, which fundamentally interfered with the child's ability to learn. Before the dispute arose Mr. Busse, the principal of Lafayette who was working with R.O. on a regular basis, recommended to the parents that the child needed a residential placement for educational purposes. R.O. is of average intelligence and has significant unrealized potential that could only be developed by addressing his behavioral issues, which strongly interfere with his learning in a residential placement. R.O.'s experience in the highly therapeutic day care center indicates a need for residential placement because his lack of success in Lafayette demonstrated the necessity for the residential placement in order to address R.O.'s educational need.


Based on the foregoing, I FIND that the evidence is clear that the child needs a residential placement in order to obtain a meaningful educational benefit. Thus I CONCLUDE that the District must provide R.O. with a residential placement in order to fulfill its responsibility under IDEA to provide a free appropriate public education in the least restricted environment.


Since R.O. needs a residential placement at this time to enable him to benefit educationally, the next issue is whether the San Marcos Treatment Center is an appropriate setting. The District argued that San Marcos Treatment Center is not appropriate as it is designed solely to treat his emotional and social issues with a medical model with the educational component merely a supplement. The District argued that because San Marcos is a psychiatric hospital providing medical treatment it is excluded from the definition of related services under 20 U.S.C. §§1401 (22):


the term related services means transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education and includes . . . psychological services . . . counseling services . . . and medical services for diagnostic or evaluation purpose 34 c.f.r. §300.24.


The District attempts to exclude San Marcos by defining too broadly the medical services exclusion. Dr. Friedland testified that he would recommend therapeutic services from roughly 2:30 p.m. to 9:00 p.m. consisting of psychiatric, psychological and social services, which he considered the medical component necessary for R.O. to benefit from his education. He did not break down the recommendation any further except to recommend that R.O. see a psychiatrist once per week in order to regulate R.O.'s medication.


Plainly the phase medical services does not embrace all forms of care that might be described as medical in other contents. Cedar Rapid Community Sch. Dist. v. Garret F., 526 U.S. 66 (1999). It is now settled that the scope of the medical services exclusion in the IDEA refers only to services, which must be performed by a physician. Irving Indep. Sch. Dist. v. Tatro, 468 U.S. 883, 894 (1984); Cedar Rapid, supra at 69. Once it can be determined that the services can be performed by a person other than a physician, the nature, extent or cost of the service cannot put it back into the exclusion. Id.


According to the literature in evidence concerning San Marcos it provides an integrated treatment to address the whole problems of the children including their emotional problems so that they are able to function in all settings including the educational setting. One of the main elements that it provides is a 16 hour a day behavior shaping program to address in positive ways problems of the severe emotional disturbances of residents including specifically boys with profiles like R.O. In the beginning there is apparently an intense period of evaluation of a medical nature, which are generally covered by IDEA. 34 C.F.R. §300.24(b)4. There is no evidence to support the District's claim that all of the services provided at the treatment center would be medical services. For instance there is no evidence that a psychiatrist would provide all of his intensive individual and group therapy. The literature indicates that R.O. would be seen by a psychiatrist once per week, who would monitor his medication. Psychologists and counselors, when necessary to ensure education, are a related service under IDEA. Id.


This residential placement is not an acute care psychiatric admission, which has been held not to be covered by IDEA. See Clovis Unified Sch. Dist. v. Calif. Office of Adm. Hearing, 903 F. 2d Ex 635 (9th. Cir. 1991). Nor is this residential placement to cure his emotional disability or to address an acute psychiatric disturbance. R.O has had several such hospitalizations, for short periods of time, and no one is claiming he needs a psychiatric hospital admission. Rather this placement is to provide an integrated treatment to address R.O.'s educational, psychiatric, and social needs in order for him to be able to learn. Another important factor here is that at least 10 residential schools have turned R.O. down as being in need of more services, support, and supervision than they offered and there are no other known residential programs willing to provide educational services to him. I FIND that the purpose of the residential placement at San Marcos is not to provide acute psychiatric treatment to cure for R.O. but to provide educational services including intensive behavior modification in a consistent therapeutic environment where the therapeutic services will be effective to allow R.O. to receive educational benefit. Thus, I CONCLUDE that the San Marcos Treatment Center as a New Jersey-approved out of district private school with a specific program that will meet R.O.'s needs is an appropriate residential educational placement. I also CONCLUDE that the District must pay for all cost and related services of this placement including diagnostic or evaluative medical services but not for those medical services, which must be performed by a physician. 34 C.F.R. SS 300.24.


ORDER


Based upon the foregoing, I hereby order the District to provide a residential placement at the San Marcos Treatment Center immediately and to pay the cost of tuition, room and board and all non-medical related services and costs.


This decision is final pursuant to 20 U.S.C.A. § 1415(i)(1)(A) and 34 C.F.R. § 300.510 (1999) and is appealable by filing a complaint and bringing a civil action either in the Superior Court of New Jersey or in a district court of the United States. 20 U.S.C.A. § 1415(i)(2), 34 C.F.R. § 300.512 (1999). If either party feels that this decision is not being fully implemented, this concern should be communicated in writing to the Director, Office of Special Education Programs.

DATE MARGARET M. HAYDEN, ALJ
OAL DKT. NO. EDS 11416-99