Sussan & Greenwald Obtains Decision for Special Needs Student Over Summit School District

The parents of a preschool student obtained a ruling from an administrative law judge that their (NJ) son was improperly denied a free, appropriate public education in the least restrictive environment by the Summit Board of Education.
 
July 17, 2012 - PRLog -- After a two-year administrative and legal battle, the parents of a preschool student, identified in court documents as J.O., obtained a ruling (docket number: EDS 12248-11) from an administrative law judge that their now five-year-old son was improperly denied a free, appropriate public education in the least restrictive environment by his local school district, the Summit Board of Education.

In a 33-page opinion, Judge Evelyn Marose found that the District “created a long, arduous road for J.O.” by erroneously equating his inability to communicate with his cognitive ability, refusing to consider the input of the parents or J.O.’s outside treating professionals and by creating IEP goals that “made it difficult to impossible for J.O. to progress.”

The parents brought the legal case on behalf of their son, J.O., who is diagnosed with Childhood Apraxia of Speech (“CAS”), a severe communication disorder which is “a neurological condition that relates to the total lack of ability to plan, to organize, to sequence, and to execute movements necessary to produce speech.”  Instead of addressing his CAS, the Summit School District ignored the recommendations from numerous outside professionals that J.O. be provided with appropriate peer models for speech, communication, socialization and play.  The District placed J.O. in a self contained class based on the principles of applied behavioral analysis (ABA), the type of instruction given to children with autism, even though the parents had provided District Staff with reports from Children’s Specialized Hospital stating that J.O. was not autistic, and that his primary diagnosis was CAS.

Judge Marose found that the School District disregarded any evidence that showed that J.O. could succeed in a less restrictive setting and insisted that J.O. remain in the most restrictive environment the District had to offer. Indicative of the District’s intransigence, Judge Marose found “[t]he parents provided the school with a swimming lesson tape … that undeniably showed J.O. following multiple-step directions, in a non-disabled class setting, and while in a ‘Y’ pool where several classes were being taught simultaneously. The District discounted the very possibility that the tape could be indicative of J.O.’s capabilities, and refused to view it.”

Even when faced with a dramatic change in J.O.’s temperament from a “happy child, who was self-motivated … to come to school with a smile, to an anxious, unhappy child, who protested going to school,” the School District refused to admit that a problem existed in J.O.’s placement or programming.  The District’s behaviorist instead tried to institute an inappropriate behavior intervention plan, again based on the principles of ABA.

Over the course of a nine-day hearing, District staff asserted that “ABA teaching techniques can be used to treat anyone.” Not only did Judge Marose find that this was a violation of the law because it constituted the most restrictive environment, the Judge also found that the choice of ABA was not appropriate for J.O.’s disability. Specifically Judge Marose found that “J.O. was … placed in the most-restrictive environment, where ABA methodology not designed for or appropriate to teach a child with a severe speech and language disorder was the sole method of teaching.”  

With respect to J.O.’s regression and the District’s proposed behavior implementation plan, the judge found that “[t]he plan was particularly inappropriate since it did not accommodate J.O.’s disabilities, but rather conflicted with them… Further… before or at least along with attempting to institute replacement skills the District should have sought to determine the cause of the regressive behavior.” Judge Marose also noted that “neither teacher nor behaviorist was knowledgeable” in J.O.’s particular disability.

In her Court Order, Judge Marose found that the District had failed to offer a free, appropriate public education, awarded tuition reimbursement for the 2011-2012 school year, for the 2012 extended school year, and ordered an out-of-district program for the 2012-2013 school year.

About Judge Marose’s ruling, J.O.’s mother stated, “We hope that the Summit School District takes away from this opinion that all developmental delays should not be treated the same. Our family and our son, in particular, have suffered greatly as a result of the District’s one-size-fits-all approach.  We hope this ruling will help the many special needs children in the Summit School District.  In particular, we hope that, in the future, the District will not ignore the input of other treating professionals, but most of all that it will regard the parents as true and valuable members of the Child Study Team as the law requires.”

Focusing exclusively on advocating for the rights of students with special needs, Sussan & Greenwald is recognized as one of the leading special education law firms in New Jersey. Jayne M. Wesler, Esq., the lead attorney in the case is a psychotherapist and former child study team member.
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