Opinion

D.B. v. Ocean Township Board of Education

985 F. Supp. 457
1997 U.S. Dist. LEXIS 20394
1997 WL 738465

Court: District Court, D. New Jersey
Filed: Nov 21, 1997
Status: Published
Author: Parell
On the bench: Parell
Cited by: 32 cases
Authority: More cited than 82.2%

refusing to require state to provide residential placement since “[t]he [school] district ... had no opportunity to consider or to revise its proposed IEP based upon ... [the plaintiffs] objections, except in the highly charged atmosphere of the litigation ... and the equally stressful ... period during which the [IEP was produced].”

How later courts described this case

refusing to require state to provide residential placement since “[t]he [school] district ... had no opportunity to consider or to revise its proposed IEP based upon ... [the plaintiffs] objections, except in the highly charged atmosphere of the litigation ... and the equally stressful ... period during which the [IEP was produced].”
considering District's good faith as a factor in evaluating placement
individual education plan not required to include applied behavior analysis (ABA), because it is only one available methodology a school system may employ if it so chooses

Written by the judges who cited it.

The opinion

MEMORANDUM OPINION

PARELL, District Judge.

TABLE OF CONTENTS PAGE

I. Introduction 470

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II. Statutory Background................................................ 471

III. Factual and Procedural History

A. R.H.’s educational history......................................... 472

B. The due process hearing.......................................... 472

C. The post-hearing administrative results............................. 476

D. Proceedings in the district court................................... 481

IV. Dual Requirements for “Appropriate Education” under IDEA............. 482

A. Some meaningful educational benefit............................... 482

B. Least restrictive educational environment........................... 487

V. Burden of Proof under Dual Requirements of IDEA..................... 498

VI. Standard for District Court Review of ALJ Decision..................... 499

VII. Discussion..................... 500

A. Residential placement............................................ 501

i. Introduction............................................... 501

ii. Diagnosis, classification and testing........................... 501

iii. Residential placement—procedural issue....................... 502

iv. Residential placement—substantive issue...................... 503

a. Factors................................................. 503

1. Inclusion efforts...................................... 503

2. Comparison of likely benefits .......................... 508

3. Mainstreaming effects ................................ 516

4. Physical or emotional conditions........................ 518

5. Behavior or regression................................ 518

6. Prior assessments.................................... 520

7. Potential............................................ 520

8. Past experience...................................... 525

9. Purpose of placement................................. 526

b. Conclusion.............................................. 530

B. IEP format—procedural issue..................................... 530

C. Bias allegation by school district against ALJ........................ 537

D. Attorneys’ fees.................................................. 540

VIII. Conclusion.......................................................... 542

I. Introduction

This ease arises under the Individuals with Disabilities Education Act (“IDEA” or “the Act”), 20 U.S.C. §§ 1400-1485 , and its implementing statute in New Jersey, N.J. Stat. Ann. §§ 18A:46-1 to

A6-46.

The underlying administrative proceeding against the Ocean Township Board of Education (“the school district” or “the district”) was commenced on behalf of R.H., a mentally retarded sixteen-year-old girl, by her mother, D.B. (“plaintiff”). Plaintiff claimed that the school district had not fulfilled its statutory obligations to R.H. under IDEA because it declined to place her in a full-time residential facility, and because the format of the proposed Individual Education Program (“IEP”) for the 1995-96 school year lacked certain required components. The Administrative Law Judge (“ALJ”) ordered residential placement and related relief, and the school district appealed to this Court.

Currently before us are: (1) plaintiffs motion for judgment affirming the ALJ’s ruling; (2) plaintiffs motion for attorneys’ fees; and (3) the school district’s motion for judgment in its favor.

Having reviewed the entire

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administrative record, the parties having presented no additional evidence at the district court level, we now render our decision on the issues presented.

We conclude that the district has met its burden of demonstrating that the current educational placement and program are appropriate, and that residential placement is not necessary in order to provide R.H. with a free appropriate public education under IDEA. We further find that although the proposed written IEP was procedurally deficient in format, the school district took timely action to address that deficiency under the circumstances, and no declaratory relief should be entered by the Court on that issue. We have also considered whether to make an award of attorneys’ fees limited to that issue, and have concluded that in the sound exercise of discretion conferred upon the Court under the Act, no such award should be granted.

II. Statutory Background

The IDEA, originally known as the Education of the Handicapped Act,

(“EHA”) “represents an ambitious federal effort to promote the education of handicapped children.”

Board of Educ. of Hendrick Hudson Central School District Westchester County v. Rowley,

458 U.S. 176, 179 , 102 S.Ct. 3034, 3037 , 73 L.Ed.2d 690 (1982). The Act was passed in order “to assure that all children with disabilities have available to them ... a free appropriate public education which emphasizes special education and related services designed to meet their unique needs.” 20 U.S.C. § 1400 (e).

States receiving federal funding under IDEA are required to comply with federal guidelines and regulations established to assure the availability of a “free appropriate public education” (sometimes referred to as FAPE) for all of their disabled children.

Id.

§ 1412(1). They must develop a plan containing the policies and procedures which insure the provision of that right for all children “regardless of the severity of their handicap.”

Id.

§ 1412(2)(C).

The Act also requires participating states to educate handicapped children with non-handicapped children whenever possible.

Id.

§ 1412(5);

Rowley,

458 U.S. at 202-03 , 102 S.Ct. at 3048-49 . This congressional mandate, also embodied in federal and state regulations, is known as the “mainstreaming,” “inclusion,” or “least restrictive environment” requirement of IDEA.

See Oberti v. Board of Educ.,

995 F.2d 1204 , 1206-07, 1213-15 (3d Cir.1993). “The use of ‘appropriate’ in the language of the Act, although by no means definitive, suggests that Congress used the word as much to describe the settings in which handicapped children should be educated as to prescribe the substantive content or supportive services of their education.”

Rowley,

458 U.S. at 197 n. 21, 102 S.Ct. at 3036 n. 21.

Special education and related services must be tailored to the unique needs of the handicapped child by means of an individualized education program.

Id.

§ 1401(a)(18). The IEP must be reviewed and revised by the local educational agency at least annually.

Id.

§ 1414(a)(5).

New Jersey participates in the federal funding program established by IDEA. That participation is reflected in state statutes, N.J.S.A. §§ 18A:46-1 to :46-46, and regulations, N.J.A.C. §§ 6:28-1 to -11.

See Lascari v. Board of Educ.,

116 N.J. 30, 34 , 560 A.2d 1180, 1182 (1989). The New Jersey

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statutory scheme provides for the initial evaluation and classification of a child by a “child-study team,” consisting of a school psychologist, a learning disabilities teacher-consultant, and a school social worker.

Id.

at 35 , 560 A.2d at 1183 (citing N.J.A.C. § 6:21-3.1(b)). The child-study team determines whether a child is eligible for special education, then develops, monitors, and evaluates the child’s IEP.

Id.

(citing N.J.A.C. § 6:28-3.1(a)). Parents have the right to be involved in the formation of the IEP, and the team must meet with the parents in developing the IEP for the child.

Id.

(citing N.J.A.C. § 6:28-3.6(b)).

The Act creates significant procedural safeguards for handicapped children and their parents. Whenever the local agency proposes to change, or refuses to change, the identification or evaluation of a child, or the provision of a free appropriate public education to a child, the child’s parents or guardian must be notified and must be given the opportunity to present complaints about any such matter. 20 U.S.C. § 1415 (b)(1). Parents dissatisfied with their child’s IEP are entitled to an “impartial due process hearing,” featuring numerous procedural protections.

Id.

§ 1415(b), (d).

These safeguards are meant to “guarantee parents both an opportunity for meaningful input into all decisions affecting their child’s education and the right to seek review of any decisions they think inappropriate.”

Honig v. Doe,

484 U.S. 305, 311-12 , 108 S.Ct. 592, 598 , 98 L.Ed.2d 686 (1988). “Congress repeatedly emphasized throughout the Act the importance of parental participation in both the development of the IEP and any subsequent assessments of its effectiveness.

See

§§ 1400(c), 1401(19), 1412(7), 1415(b)(1)(A), (C), (D), (E), and 1415(b)(2).”

Id.

at 311, 108 S.Ct. at 598 ;

see also Rowley,

458 U.S. at 208 , 102 S.Ct. at 3052 (“Congress sought to protect individual children by providing for parental involvement in the development of state plans and policies, ... and in the formulation of the child’s individual education program.”).

States may choose either a one-tier or a two-tier administrative review system. Some states, including our neighboring state of Pennsylvania, have a two-tier system in which the initial hearing occurs at the local educational agency level followed by an “independent” review at the state administrative appeals level.

Carlisle Area Sch. v. Scott P.,

62 F.3d 520, 527 (3d Cir.1995) (citing 20 U.S.C. § 1415 (c)),

cert. denied,

517 U.S. 1135 , 116 S.Ct. 1419 , 134 L.Ed.2d 544 (1996). New Jersey employs the one-tier administrative system, under which due process hearings are conducted before an administrative law judge of the New Jersey Office of Administrative Law.

Lascari,

116 N.J. at 39 , 560 A.2d at 1185 (citing N.J.A.C. § 6:28-2.7(b)(4)(iv), N.J.A.C. § 6:28-2.7(a)(6)).

Any party aggrieved by the decision at the administrative level has a right to appeal to a state court of competent jurisdiction or to a federal district court. 20 U.S.C. § 1415 (e)(2). That court conducts an independent review of the case, but should give “due weight” to the findings of the administrative agency.

Rowley,

458 U.S. at 206 , 102 S.Ct. at 3050-51 . The Act was supplemented in 1986 to provide for the recovery of attorneys’ fees after a successful challenge by the parents or guardian. 20 U.S.C. § 1415 (e)(4)(B).

III. Factual and Procedural History

A. R.H.’s educational history

The child in this case, a sixteen-year-old girl named R.H., was born to plaintiff on December 9, 1980. She is diagnosed with a

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chromosomal defect known as trisomy 18 mosaic, a multiple malformation syndrome which typically causes mental retardation and various related physical and neurological conditions. She has a composite I.Q. score of approximately thirty-six, and has an educational classification of Trainable Mentally Retarded (“TMR”).

Her most recent triennial educational reevaluation, in June, 1995, summarized her functional status as follows:

Current evaluation results indicate that [she] is functioning within the mentally retarded range of intelligence at the trainable level. Significant developmental delays were recorded in cognitive development, gross and fine-motor skills and adaptive behaviors. Language development also represented an area of significant deficit, with receptive language skills falling at a somewhat higher level than expressive language skills. [She] is a highly distractible adolescent, but responds at least momentarily to directions to focus attention to task. Socially, [her] mood is generally positive, she is compliant and docile, and appears to enjoy being with her classmates.

She has physical anomalies associated with trisomy 18 syndrome including short stature, stooped posture, malocclusion of the jaw, and high arched palate. She has had orthopedic surgery for congenital problems with her legs and feet; her ears are located low; “her hands are very crooked (and) all of her bone structure is a little off.” (Tr. 9 at 96 (plaintiffs description)). She has an open-mouthed appearance and frequent drooling, which are not considered to be under her control, and the drooling is partially controlled with medication.

A brief description of her current abilities and limitations would include the following. She has poor motor coordination. She can walk and use stairs, but not run or jump. Her fine motor abilities include opening doors and scribbling, but she cannot draw a line or circle or use scissors. Her “receptive language” level permits her to respond to more than fifteen simple verbal directions. She has an oral vocabulary of only a few words, although she does sign some words to communicate, and can sign additional words in response, to being shown pictures or objects. She is also able to express messages concerning her likes and dislikes by means of manual gestures and facial expressions, but she is basically nonverbal. She can clear dishes from a table with directions, perform other household chores with assistance, and pour liquid with “considerable spilling.” (Ex. J-57 at 3.) “Self care is a struggle for [her]. She is not toilet trained and does not make [her] needs known.

She needs assistance with all areas of self care.”

(Id.)

“She is a social child. She enjoys greeting familiar others and attempts to assist others involved in simple tasks.” (Ex. J-55 at 2.) She rarely displays temper. She cooperates with adult requests and is not disruptive. Her general development is summarized as being at the eighteen-month level.

R.H. began school when she was approximately three and one-half years old, at the Ocean Township preschool handicapped program during the 1984-85 school year. Speech therapy was provided to her when she entered school. Prior to that, from birth, R.H. had received special services for her disabilities from an assigned agency, including physical therapy at home and at the agency facility. During the 1985-86 school year, R.H. was placed by Ocean Township School District at the Aldrich School in Howell Township, in a self-contained TMR class. The child remained in that placement until in or about 1988. At that time, plaintiff moved to Toms River, New Jersey. R.H. attended a self-contained class in the Toms River School District for less than a year, and then plaintiff moved with R.H. to Richmond, Virginia in April, 1989. There, R.H.’s educational placement was in a self-contained TMR class in the Virginia Randolph Special Education Center, a self-contained school for disabled children. R.H. continued in that placement during the school years from 1989

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until January, 1995, when plaintiff returned to reside in Ocean Township.

When they were living in Virginia, R.H. attended a church-based after school and weekend respite program for which plaintiff paid on a sliding scale based on need. The same private day care program was run as a summer day camp, which R.H. attended in the summers of 1990 through 1992. The school district IEP did not provide R.H. with an extended day or summer program in Virginia. The district made plaintiff aware of the church-sponsored programs, and plaintiff enrolled R.H. on her own. During the summers of 1993 and 1994, plaintiff was in the child care business at her home, and she kept R.H. at home with her except for a two-week attendance at a sleep-away camp in 1994, at plaintiffs expense.

The Virginia Randolph School provided a comprehensive program at the trainably mentally retarded level that addressed R.H.’s individual educational needs in the general areas of gross and fine motor skills, communication, self-help and social skills, and vocational skills. Related services in her IEPs for those years included, at various times, speech therapy and physical therapy. Plaintiff consistently expressed satisfaction with R.H.’s educational program while they were in Virginia, and at no time did she request that the IEP include any additional services or parent training. Plaintiff also did not request residential placement for R.H. during any of those years until the spring of 1994. Plaintiff testified that during that spring, she brought up the subject in conversation with R.H.’s teacher, but made no formal request.

Plaintiff moved to Ocean Township from Virginia in January, 1995 and contacted the school district to enroll R.H. The child-study team for the district was Mr. Briard (social worker), who served as case manager for R.H., Ms. Venino (school psychologist), and Ms. Beirne (learning consultant). They were supplied with R.H.’s extensive records which they reviewed, and met with plaintiff and R.H. on January 10, 1995. They conferred with plaintiff, observed R.H., and after considering several possible placements, they proposed to plaintiff that R.H. be placed in the TMR class headed by Ms. O’Keefe, located within the district at the Ocean Township Intermediate School. This class provided a program that was consistent with the program R.H. had been receiving in her TMR class in the Virginia school. Plaintiff met the child-study team and Ms. O’Keefe, toured the school and briefly visited the class that day. The district and plaintiff agreed at that time that R.H. would enter that class and be monitored to see whether it was appropriate.

Plaintiff indicated at that initial meeting that she was very anxious to have R.H. start in the program immediately. The child-study team was able to accommodate her so that R.H. entered Ms. O’Keefe’s class the very next day, January 11, 1995. At the same time, the team and Ms. O’Keefe advised plaintiff that while R.H. was being placed at least initially in that class, “we certainly would look at a continuum of alternate placements, which we have.” Also at that meeting plaintiff was informed that the previous IEP would be considered while the district was working with R.H., and during that initial period an IEP would be developed and presented.

Plaintiff did not request residential placement for R.H. during the initial meeting on January 10, 1995. She did indicate to Ms. O’Keefe and Mr. Briard at that meeting that she was interested in a residential placement, and had been looking into that in Virginia before she moved, but had not been able to accomplish it there. However, during that meeting and the ensuing three months, plaintiff made no requests for different or additional educational services relating to her daughter except a bus aide, nor voiced any objections to the program that R.H. was receiving at her school. She did not attend the meeting for the development of the interim IEP, (Ex. J-44), despite the school’s efforts to include her in the process. She also did not sign that document, which was adopted as a working outline by the district on or about April 3, 1995. At the hearing plaintiff testified that in March or early April, 1995, she had retained counsel. On April 19, 1995, counsel directed a letter to the district requesting residential placement for R.H.

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When the school district received the April 19 letter from counsel, they immediately suggested a meeting to discuss the request. A meeting was conducted between the parties on May 10,1995. At that meeting it appears that plaintiff stated, through counsel, that she was seeking residential placement because she felt that in the present placement R.H. was not progressing; that she was not generalizing skills learned at school to the home; that she was not toilet trained and was deficient in other daily living skills; and that R.H. needed more structure and consistency in order to make progress. The response of the district was to the effect that R.H. had been in its program for only a few months, and residential placement did not appear to be indicated as she was adjusting well and was showing progress in the current placement; and that having been made aware of plaintiffs concerns about the home situation, it would continue to work in cooperation with the parent. It appears that no specific changes to the day program were suggested by either party during that meeting, and that the focus of the meeting was entirely on plaintiffs request for residential placement.

The child-study team conducted a full triennial evaluation of R.H.’s current educational status in May and early June, 1995, as part of the process of drafting her proposed IEP for the 1995-96 school year. Evaluation reports were prepared by each of the child-study team members and by R.H.’s speech therapy teacher. Ms. O’Keefe also provided data from her experience as R.H.’s primary teacher. Plaintiff participated in the evaluation process in interviews with the school psychologist, Ms. Venino, and the school social worker, Mr. Briard.

Mr. Briard testified that in the course of his meeting with plaintiff to prepare for the social assessment portion of the evaluation in early June, 1995, he brought up the subjects of after school and respite care in order to help her as a parent to be aware of resources that might be available in the community.

Mr. Briard determined that plaintiff had taken the initiative to register R.H. with the Division of Developmental Disabilities (“DDD”) for respite care. He also discussed with plaintiff the fact that the Association for Retarded Citizens (“ARC”) had a location nearby with various programs and services that might be of interest to her. He also asked whether plaintiff had any plans for R.H. for the summer, and when plaintiff inquired whether the school district would provide a summer program for R.H., he said that he would look into the question and respond at the upcoming IEP meeting. Plaintiff made no formal request for an extended summer program at any time.

The district presented and explained its evaluation reports and proposed IEP for the 1995-96 school year to plaintiff at the formal IEP meeting conducted on June 16, 1995. There is no indication that plaintiff was accompanied by her counsel at that meeting, although the notice letter from the district invited plaintiff to bring anyone she wished to bring. Based upon the district’s evaluation, the IEP proposed at that time set forth essentially the same program identified in the interim IEP adopted in April, with the addition of transitional planning for R.H., as required by federal and state regulations. 34 C.F.R. § 300.346 (b); N.J.A.C. § 6:28-3.6(d)(5). That proposed IEP specified the current TMR class program, with speech therapy and van transportation as related services. (Ex. J-48.) It did not include an extended summer program. Mr. Briard testified that at the time of that meeting it was the judgment of the district, based upon all currently available information, that the proposed IEP for 1995-96 was appropriate for R.H. Plaintiff later enrolled R.H. for two two-week sessions at Camp Mary Heart during the summer of 1995, and obtained a grant from DDD covering the full expense.

Plaintiffs participation in the June 16, 1995 IEP meeting was limited to signing the IEP with the notation “for attendance purposes only.” Plaintiff did not, at or about the

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time of that meeting, either individually or through counsel, request any specific changes or additions to the program as proposed in that IEP. During that period, however, her previously communicated request for residential placement and her inquiry regarding an extended summer program remained outstanding.

Subsequent to the IEP meeting of June 16, 1995, plaintiff requested mediation within the New Jersey Department of Education as permitted by N.J.A.C. § 6:28-2.6. A mediation conference was conducted on July 26, 1995 by due process mediator Thomas Frost, which was attended by the parties and their counsel. Two issues were raised on behalf of plaintiff at the mediation session: (1) her request for residential placement, and (2) her objection to the fact that the IEP as proposed did not include an extended summer program. On the latter issue, the district again explained, as it had at the June IEP meeting, that it did have such a program available and had considered it for R.H. in the current summer. The district said, however, that an extended summer program would be indicated in cases where significant regression over the two summer months was likely to occur. In R.H.’s case, because she had not had an extended summer program in her IEPs in Virginia and this would be R.H.’s first summer in their district, the district explained that it could better evaluate that question when she returned to school in the fall, which it would do. The mediator then suggested that when the district did make its evaluation on that question based on observations in the fall, it should document those observations.

On the issue of residential placement, the district relied upon its previously stated position that based upon the information presently available, in its view the current educational placement was appropriate for R.H. From the record before this Court, it appears that residential placement and the summer program were the only two issues raised by plaintiff at the mediation conference, and that the parties reached no agreement.

By letter from counsel dated August 2, 1995, plaintiff withdrew from mediation and presented her complaint for a due process hearing before the Office of Administrative Law, pursuant to 20 U.S.C. § 1415 (b) and N.J.A.C. § 6:28-2.7. The matter was assigned to the designated Administrative Law Judge, and the hearing commenced on October 12,1995.

B. The due process hearing

Plaintiffs due process complaint sought two forms of relief at the administrative level: an order for residential placement, as previously requested; and “[rjeformation of the district’s IEP in order to comply with the requirements of federal and state law set forth in N.J.A.C. § 6:28-1.1 et seq. and specifically N.J.A.C. § 6:28-3.6.”

The essence of the latter issue, as contended on behalf of plaintiff in the course of the hearing, was that the IEP document itself, as drafted and proposed by the district in June, 1995, failed to meet the legal requirements for specificity as to current educational status, annual goals and interim objectives, and evaluation criteria.

See

Section VII(B). That issue was raised for the first time in the relief requested in the due process complaint letter.

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There is no indication in the record that it was ever mentioned to the district by plaintiff or her counsel during any of the communications between the parties before due process was invoked on August 2,1995.

The hearing proceedings took what can accurately be described as a bizarre and tortured path. Initially the district, as the party bearing the burden of proof, presented its employee witnesses, beginning with R.H.’s teacher, Ms. O’Keefe, continuing with the three members of the child-study team, and concluding with Joseph Petillo, the Coordinator of Special Services for the district. On the fifth day of the hearing, the testimony of the first four witnesses had been concluded and Mr. Petillo was testifying on cross-examination. The ALJ at that point initiated a sidebar conference which was off the record, and when the record was resumed the ALJ made a statement that he had called the sidebar “because of a timely need to review where we were going with the direction of the case up to this point;” that he had “address[ed] some of [his] own concerns to the parties;” that he had “instructed counsel however that there are ways that this matter can be approached that maybe can perhaps address a significant amount of concerns raised by the mother in this matter;” and that he was inviting the parties to adjourn the hearing, “my purpose, of course, is to give you all the opportunity to embrace what I addressed to both counsel in that sidebar, if nothing else.”

As events developed, that break in the hearing began on October 27, 1995, and the parties and the ALJ were engaged in off-the-record settlement efforts until the hearing resumed on February 5, 1996. No settlement had been reached, and the case had been rendered vastly more convoluted by the off-the-record events. Those events featured as major distractions in the subsequent testimony and the ALJ decision.

What occurred during the hiatus before the settlement efforts were exhausted and the hearing resumed was largely off the record, but certain events from that period later beeame of record because of the further disputes which those events produced. The “concerns” which the ALJ had communicated to counsel at sidebar, to which he made reference in the text quoted above, were not otherwise spelled out by him on the record. However, during the settlement discussions which followed (involving the ALJ and both counsel) it appears of record that “[counsel for plaintiff] demanded and [the ALJ] agreed that it would be of assistance to have a specialist in IEP development retained[,]” such person to have a “background in applied behavior analysis,” and that “[t]he name Dr. Howard Margolis which theretofore had been unknown to [counsel for the district] was thrown out as somebody who would be good.”

Next, through a series of contacts involving members of the child-study team and counsel for plaintiff, the services of Dr. Margolis were retained pursuant to letters from each side which, later in retrospect, revealed different views of the scope of his retention. The undisputed basis of his retention, however, was that he was to be jointly consulted by the parties, paid by the district, and that: “You will not testify for the district, nor the parent. You are not an advocate for the district, nor the parent, but an advocate for the child.” (Ex. R-26.) Dr. Margolis was not designated by the ALJ as a court-appointed expert as permitted under the regulations.

See

N.J.A.C. § 6:28-2.5. Rather, he was retained by the parties under the stated arrangement.

Dr. Margolis had met with the child-study team and briefly discussed the case on the first day that he was involved in it. After being formally retained he proceeded to review all of R.H.’s educational records, observed R.H. in the classroom and conferred with Ms. O’Keefe and the classroom aide, and observed R.H. in the home setting and interviewed her mother and grandmother. A letter was sent by Dr. Margolis to Mr. Petillo and counsel for plaintiff dated December 23, 1995, which stated, “[e]nelosed is the 8th draft of my recommended IEP which I re

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viewed in part (draft 7) with Mrs. B. Your comments would be appreciated.” The enclosure was a “suggested IEP for R.H.” Dr. Margolis had discussed one earlier draft with the parent, and made some revisions. He had not shown that draft or any previous drafts to the district. After delivering the “eighth draft,” he conferred by telephone with Mr. Briard and went over some of the goals and objectives and orally agreed to delete certain items, but he produced no further drafts of his proposed IEP. The district indicated at that time that it had no major problems with the formulation of goals and objectives in the draft IEP prepared by Dr. Margolis, which it viewed as a more detailed description of some portions of the program which it was already providing to R.H. However, both the district and Dr. Margolis viewed it as only a draft to be used in further discussions between the parties leading to development of a revised IEP to meet plaintiffs contentions regarding measurable goals and objectives and evaluation criteria.

See

Section VII(B).

The parties were scheduled to meet with Dr. Margolis on January 12,1996. The prior day he faxed to both sides a one-page document which he had written, entitled “Implementation Points for Proposed Program for R.H.—Minimal Needs.” The accompanying cover sheet referred to the possibility of inclement weather and stated, “[t]o expedite matters, in case I cannot physically make tomorrow morning’s meeting, I have listed some implementation particulars for discussion____ Hope this helps.” The “implementation plan,” as it came to be referred to in the later testimony, included specifications as follows:

• A program scheduled for 365 days a year, an average of 6 or so hours each day (e.g., 1.5 hours in the morning, before school; 4.5 hours in the afternoon and evening).

• Instructor ... needs masters level skills in special education instruction and applied behavior analysis. To reduce costs and provide for instruction over a 7-day a week, 52-weeks a year, the instructor should be complemented by a well-trained (in applied behavior analysis) bachelor’s level teaching assistant, who is supervised by the instructor....

• [Instructor ... should work with R.H. at least weekly[,] ... observe the teaching assistant work with R.H., instruct Mrs. B. and R.H.’s grandmother, and attend weekly meeting to make instructional decisions..,.

• Frequent and planned use of the community, to teach R.H. about the community and meet her community-based goals and objectives.

Frequent and planned social activities outside of the home, to help R.H. meet her social (and related) goals and objectives.

No plan such as this had ever been proposed by Dr. Margolis in all of his approximately thirty years of experience in his career. It was unprecedented in the experience of the district in working with handicapped students. -It was predictably unworkable, as both Dr. Margolis and plaintiff observed when they later testified. It was the functional equivalent of residential placement, as plaintiff and her own expert Dr. Gallina indicated in their testimony. Yet Dr. Margolis rendered no expert report at all, nor did his later testimony, under plaintiffs subpoena at the resumed hearing, go so far as to recommend residential placement. Instead, he opined during his hearing testimony that if his plan did not succeed, which he predicted it would not, then that failure would be a “very strong indicator [for] residential placement in a high quality residential facility____”

The suggested “implementation plan” drafted by Dr. Margolis was virtually identical in its essential elements to the settlement demand which had been detailed by plaintiffs counsel during the

in camera

settlement negotiations with the ALJ after the hearing was halted. That phase of the negotiations had occurred at or about the time that the name of Dr. Margolis was first mentioned (whether by the ALJ or counsel for plaintiff, the record does not reveal). When Dr. Margolis was questioned under oath about the conspicuous similarity between plaintiffs set

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tlement demand and his implementation plan, he denied that any request for an implementation plan came from plaintiffs counsel. He asserted that he himself developed the implementation plan with its six-hour-a-day additional instruction component, stating, “[w]ell, then maybe who [sic] understand the literature and understand the kids would independently come up with the same kind of plan.” Plaintiff testified that she never suggested such a plan to Dr. Margolis, nor did he mention it to her before drafting and circulating it.

The parties met with each other and with the ALJ at the hearing location on January 23, 1996 for several hours of negotiations concerning the suggested implementation plan. Two days later, on January 25, after more hours of settlement discussions, some with Dr. Margolis and some with the ALJ, the negotiations were concluded without resolution. There ensued six more days of testimonial hearings and an additional day devoted to closing arguments.

Dr. Margolis testified as one of the hearing witnesses, under subpoena by plaintiff.

During the cross-examination of Dr. Margolis by counsel for the district, he acknowledged that he was well acquainted with the attorneys for plaintiff; that he had been retained as an expert on behalf of parents in educational disputes in more than 100 cases (and never for a school district when he accepted the R.H. assignment); and that he had worked in such capacity for the law firm representing plaintiff. He also testified that the ALJ in this case knew of his working relationships with that firm, and the fact was no secret. He asserted that he had made it very clear to the district, at the time he was retained in this matter, that he had worked with that firm previously. Dr. Margolis declared that he had been independent in the work that he undertook in this case.

The district vigorously disputed Dr. Margolis’ claim of independence, based upon the nature of the services that he had rendered and also its perception that he had not been forthright in informing it of his connections to the Sussan firm. The district recalled the child-study team and Mr. Petillo to testify to their conflicting recollections as to whether Dr. Margolis had disclosed to them his prior working relationship with the firm representing plaintiff. It is not necessary for us to resolve that issue here. However, we note that by his own testimony, Dr. Margolis did have an extensive and virtually exclusive background of providing expert services on behalf of parents in these disputes.

We have been obliged to provide a description of the circumstances surrounding the settlement negotiations and participation of Dr. Margolis in the case because those events heavily influenced the entire remaining course of the administrative proceedings. After that hiatus in the hearing, much of the testimony of the other witnesses focused upon Dr. Margolis and his suggested implementation plan.

When the ALJ decision (“ALJ Op.”) was rendered, it also largely concentrated upon Dr. Margolis and his relationship to the case.

See

Section III(C). This was not surprising, given the fact that the ALJ played a dominant role in procuring both the initial participation of Dr. Margolis as a consultant and his eventual appearance as a witness. However, this emphasis was misplaced because it tended to divert attention from the historical facts about R.H., none of which were in dispute. It also obscured the need to deal with the information and opposing inferences and opinions offered by all of the other witnesses, who were called in the usual and customary course of litigating the issues in a ease of this type.

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C. The post-hearing administrative results

The Administrative Law Judge rendered a decision granting the following relief:

Based upon all the foregoing, it is ORDERED that (1) R.H. shall, subject to its approval and acceptance, be placed at the Bancroft School, Haddonfield, New Jersey immediately and she shall remain there so long as it is educationally appropriate and (2) the Ocean Township School District shall immediately create and implement an appropriate individualized education program for R.H. which shall accurately and adequately reflect all of her defined needs and pursuant to the requirements set forth in

N.J.AC.

§ 6:28-3.6 including but not limited to the specified goals and objectives created on behalf of the parties by Dr. Howard Margolis and (3) R.H.’s program and placement at the Bancroft School shall include a related service of an extended school year in accordance with the current programming and schedule of the Bancroft School and (4) D.B. shall be provided with a related service of parental training henceforth in order to assist her in coping with and providing consistency for R.H.; and (5) all costs attendant to R.H.’s matriculation at the Bancroft School shall be borne by respondent Ocean, and shall also include all reasonable transportation costs incurred by D.B. in transporting her daughter back and forth from Bancroft as well as the cost of one visitation per month ,by D.B. with R.H. at the Bancroft School; and (6) in light of my conclusion relative to the services of R.H.’s attorney, it is RECOMMENDED that an ORDER be granted for attorneys’ fees and costs incurred with this action.

The decision was eighty-two pages in length, excluding witness and exhibit lists. The bulk of the decision consisted of summaries of the testimony of each witness.

The discussion section of the decision, entitled “Legal Analysis,” consisted of an apparently emotional discourse, largely devoid of analysis, in which the ALJ criticized the district and its witnesses and passionately extolled Dr. Margolis.

The ALJ focused his discussion on only two of the witnesses in deciding the issue of residential placement in favor of plaintiff. First, he dismissed the testimony of Dr. Pietrucha, the district’s expert child neurologist, characterizing her testimony as bleak, harsh, and suspect. In contrast, the ALJ lavishly praised and defended Dr. Margolis, and then expressly likened Margolis to himself in terms of their role in the case, stating:

[Specifically I would hope that Dr. Margolis shall not become jaded by his involvement in this matter so as to preclude him from appropriately participating in further matters on a professional basis in the future. As indicated earlier on, it is unfortunate that Dr. Margolis has been unfairly drawn into this matter because of the uncalled-for attacks made upon him and his professional integrity during the course of this matter. I trust that he will appreciate the concern with which I view such unfounded attacks and that he shall stand even taller and more resolute on behalf of children with special needs. For, in reality, Dr. Margolis does not represent parents and Dr. Margolis does not represent school districts. Dr. Margolis represents children.

And that is akin to the mission of this tribunal

i.e.,

to ensure that children receive a free and appropriate public education in the least restrictive environment. That of course is the requirement of each district board of education under

N.J.AC.

§ 6:28-2.1(a). And, where a district fails to meet that obligation, then it is incumbent upon this tribunal to demand that steps be taken to appropriately address concerns raised on behalf of those affected children.

That portion of the ALJ opinion also gives the strong impression that while verbally espousing the proper standard of educational benefit under

Rowley ,

the ALJ actually employed the rejected “best achieve success-in-learning” standard, or even the wholly inapposite “best interests of the child” approach. Those inapplicable standards are discussed in note 36.

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It is also problematical that in stating his reasons for an award of residential placement, the ALJ relied almost exclusively on his own conclusions drawn from the testimony of Dr. Margolis, even while acknowledging that Margolis “never was asked and nor did he ever volunteer to provide any input with reference to any residential placement in this matter.” The ALJ decision contained no comparison or analysis of the testimony presented by the numerous witnesses who did express their positions for and against residential placement.

Following the issuance of the ALJ decision, a series of correspondence was exchanged among counsel for plaintiff, counsel for the district, and personnel of the New Jersey Department of Education. In that exchange, counsel for plaintiff sought the assistance of the Department to compel the district to implement the ALJ decision by transferring R.H. to residential placement immediately. The district responded that the matter was on appeal, and cited the stay-put provision of IDEA and related state and federal regulations in support of its position that the current educational placement of the student was not changed by the ALJ decision.

According to the certification of counsel for the district, following that exchange of correspondence she was advised by Department of Education personnel that “no enforcement proceedings would take place as the Department did not think that such was appropriate under the law cited,” and also “that there was an Attorney General’s opinion on a matter similar to this which went back many years. This opinion also apparently confirmed that the provisions cited in [counsel’s] letter would mandate that R.H. ‘stay put’.” The result of that exchange was that the Department of Education took no steps to compel the district to implement a placement change for R.H. while the district appealed the decision of the Office of Administrative Law.

Proceedings in the district court D.

Plaintiff filed her action in this Court on May 8, 1996, seeking an award of attorneys’ fees and costs as the prevailing party below.

See

20 U.S.C. § 1415 (e)(4)(B). The school district filed its appeal of the administrative decision in the New Jersey Superior Court, Chancery Division, which action was removed to this Court by plaintiff, and the two actions were consolidated by consent.

Plaintiff initially moved for preliminary injunctive relief directing the school district to implement immediately the decision of the Administrative Law Judge. Following briefing and oral argument directed to that limited issue, we denied the motion in an unpublished written Memorandum and Order filed July 2, 1996. In that opinion, we found that R.H.’s current educational placement was the pendent placement under the “stay-put” provision of IDEA, 20 U.S.C. § 1415 (e)(3), and that no injunctive relief should be issued by the Court to change that placement while the appeal was pending here. Plaintiff did not appeal from that denial of injunctive relief.

See

28 U.S.C. § 1292 (a)(1).

The parties next filed cross-motions for affirmance and reversal, respectively, of the decision of the ALJ. At oral argument on the cross-motions for judgment' in this Court, each party agreed that the matter was ripe for review, and neither party requested the Court to take additional evidence.

See

20 U.S.C. § 1415 (e)(2) (“[T]he court shall receive the records of the administrative proceedings, [and] shall hear additional evidence at the request of a party....”). Also at oral argument on the motions for judgment, on October 21, 1996, counsel for plaintiff requested that we reconsider the denial of preliminary relief in view of the decision of our court of appeals issued September 18, 1996, in

Susquenita School District v. Raelee S.,

96 F.3d 78 (3d Cir.1996). We advised that we did not believe that case to be controlling under the facts presented here.

*482

Plaintiff subsequently filed another motion to enforce the decision of the ALJ, but because the motions for judgment on the merits had already been briefed and argued and the decision on those motions was in preparation, we advised the parties that the renewed interlocutory motion would be addressed in the final decision rather than separately decided at that time.

IV. Dual Requirements for “Appropriate Education” under IDEA

Courts interpreting IDEA have recognized that the statutory framework imposes dual requirements on states and their school districts.

See, e.g., Scott P.,

62 F.3d at 533-34 . First, they must “provide personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.”

Rowley,

458 U.S. at 203 , 102 S.Ct. at 3049 . Second, and equally important, they must “construct a program in the least restrictive educational environment appropriate to the needs of the child.”

Scott P.,

62 F.3d at 534 (citing 20 U.S.C. § 1412 (5)(B));

see also

note 43. All of the material administrative findings were therefore inferred factual conclusions, ultimate facts, or legal conclusions.

Following the standards of review described in

Scott P.,

this Court will exercise plenary review, providing explanations for its decision to depart from the administrative rulings.

Scott P.,

62 F.3d at 527-29 .

A. Residential placement

i. Introduction

The issue of residential placement in this ease primarily involves the procedural and substantive aspects of IDEA’S requirement of the least restrictive educational environment.

See

Section IV(B). In performing that analysis, we must also incorporate the substantive rule of “some meaningful educational benefit” derived from the first of the dual requirements of IDEA.

See

Section IV(A). That may be accomplished most effectively in a case such as this by addressing the “benefit” requirement in connection with the analysis of the substantive factors to be considered for residential placement. Before turning to that analysis, however, it is necessary to set forth certain additional facts about R.H.’s diagnosed condition and the various conceptual models used in describing and evaluating such conditions. Also, the ALJ decision targeted one procedural issue regarding residential placement that bears brief mention before proceeding to the substantive analysis.

ii. Diagnosis, classification and testing

The term “trisomy 18,” in medical parlance, refers to an identified chromosomal aberration that produces the types of conditions displayed by R.H. The condition called trisomy 18 is different from trisomy 21, commonly referred to as Down’s syndrome. Many trisomy 18 individuals die very early in life, or have mental retardation and developmental and neurological delays similar to R.H.’s. Most of the trisomy 18 individuals are in a much lower range than those who have trisomy 21. While some of those afflicted with trisomy 21 (Down’s syndrome) may be edueably mentally retarded, those with trisomy 18 tend to be more severely disabled, and typically will be in the trainable range or occasionally the even lower range referred to as “eligible for day training.”

R.H. was diagnosed as having trisomy 18 syndrome at an early age, and she was classified trainably mentally retarded from at least age five. Neither her diagnosis nor her educational classification are in issue. She is a severely handicapped individual, according to the terms used for educational classification under the New Jersey regulations. N.J.A.C. § 6:28—3.5(d)(6)(ii). This is an educational classification rather than a medical definition, or one used for example by the American

*502

Association of Mental Retardation, which have somewhat different definitional standards. The medical diagnostic criteria for mental retardation uses the general categories of mild, moderate, severe and profound. Under that criteria, R.H. would also be regarded as severe, at the I.Q. range of twenty to approximately thirty-five or forty, or almost up to the level of moderate, at the I.Q. range of approximately thirty-five to fifty-five.

It is difficult to test children such as R.H., due to their degree of mental retardation and their many associated difficulties, such as gross and fine motor problems and basic language difficulties. This dilemma was demonstrated in the testing process administered by Ms. Venino, the school psychologist (which produced the current test data upon which all of the opinion testimony of both parties relied in this case). She testified that she used three different methods of evaluating R.H.’s abilities, of which two relied exclusively upon the observations of those who knew the child (her mother and her teacher), and the third was a standardized intelligence test, the Stanford-Binet Intelligence Test, Fourth Edition.

During the I.Q. testing, the teacher had to be present to interpret any signs R.H. made in answer to questions, so that those nonverbal responses could be included in her score. Ms. Venino explained that the Stanford-Bi-net is designed to cover a range of ages two to adulthood, and contains approximately fifteen subtests, not all of which are supposed to be given to each child, depending upon their ability level. Using that approach, and offering R.H. the seven subtests appropriate for a two-year-old child, R.H. did not obtain a basic score (two successive correct responses) in most of the areas, so an estimated score below the lowest available score on those subtests had to be assigned.

Ms. Venino stated that based on those test results, she estimated the I.Q. at thirty-six, explaining that according to the definitional standards she employed, “[t]he moderate retardation range goes from a score of thirty-six to fifty-one, so you can see that R.H. was really at the lower end of this, and since she did obtain scores of a zero on several of the subtests, you would assume that her I.Q. is somewhat lower than that.” She added that the standard error of measure is five points plus or minus, so the I.Q. range could be as low as thirty-one or as high as forty-one, “[e]xeept since she was at the lowest end, I would assume that the lower of that estimate would be more accurate.” The retained experts generally agreed that standardized I.Q. testing in this area produced rather inexact results, which they did not dispute or retest. It was also undisputed that viewing the results under all testing methods employed, R.H. has developmental deficits that pervade all aspects of her functioning, and she falls below the first percentile rank in all areas.

iii. Residential placement—procedural issue

One of the findings of the ALJ opinion was that the school district has had no intention of seriously considering residential placement for R.H. since she first re-enrolled in January, 1995. This raises an issue under the procedural protections of the mainstreaming requirement of IDEA.

See

note 24. The evidence upon which that finding was based was evidently the testimony of plaintiff in which she described an exchange between herself and Mr. Briard during the first meeting on January 10,1995, when various placements for R.H. were being discussed, and plaintiff expressed her preference for residential placement:

Q: Did he come right out and say no, no absolutely not?

A: He came right out and told me that it’s not done. It wouldn’t be appropriate.

Q: As I understood it, you simply mentioned a desire on your part for residential placement?

A: I told him that I preferred residential placement for her at that meeting.

Q: And he, Mr. Briard, Fred Briard said no?

A: He basically told me that the state or, you know, that it is not leaned toward at this time, which I know that to be true.

Mr. Briard was not explicitly asked during his testimony to verify or dispute whether he said that. However, assuming that he made a statement to that effect to

*503

plaintiff, his statement in that context would not constitute a violation of the procedural requirements of IDEA, but rather would be an accurate description of the presumption in favor of mainstreaming embodied in the law.

See

Section IV(B).

There is no evidence that this school district has an inflexible policy against residential placement, either in R.H.’s case or in any other ease. To the contrary, the testimony established that in making the initial placement of R.H. into Ms. O’Keefe’s class, with the express consent of plaintiff, the child-study team did make a preliminary evaluation of her educational needs and compared that with the continuum of placements that might have been appropriate for her, including residential placement, and that the initial placement in Ms. O’Keefe’s class was on a provisional basis which they would and did monitor for any necessary changes. They also testified that the district has favorably considered and provided residential placement for its students where they agreed that a genuine need existed. Further, the response of the district to plaintiffs formal request for residential placement was immediately to respond by setting up a meeting with her and her attorney to consider the request.

The school district has taken the position in this litigation that residential placement is not necessary for R.H.’s education in her case, but certainly that position does not constitute a refusal to consider such placement for R.H. The district is entitled to advocate its reasons for that position in this litigation without thereby being held to have violated the procedural protections of the Act.

iv. Residential placement—substantive issue

a. Factors

We come now to the primary claim asserted by plaintiff. That issue is whether the district has established by a preponderance of the evidence that the program it is offering to R.H. meets the substantive requirements of IDEA and related laws, or whether, as plaintiff contends, residential placement is the least restrictive educational environment which is likely to provide R.H. with some meaningful educational benefit.

The program that we must examine in making this analysis is necessarily the actual program that R.H. has been receiving at the Ocean Township Intermediate School, because since arriving at the district she has never had an agreed-upon IEP.

See

Section 111(A);

Cf. Drinker

Colonial

Sch. Dist., 78 F.3d 859, 867 (3d Cir.1996) (“[W]here ... the dispute arises before any IEP has been implemented, the ‘current educational placement’ will be the operative placement under which the child is actually receiving instruction at the time the dispute arises.”) (quoting

Thomas,

918 F.2d at 625-26 ). Of course, in examining the existing program we may obtain relevant information from all of the documentation which describes that program, including the interim and proposed IEPs (Ex. J-44; Ex. J—48), and all related evaluation and educational materials relied upon by the district in structuring its program for R.H. We may also consider the testimony describing the program.

We approach this issue bearing in mind that the substantive inquiry for residential placement is whether the nature or severity of the handicap is such that education in regular or special classes cannot, even with the use of supplementary aids and services, be satisfactorily achieved, under the

Rowley

standard of some meaningful educational benefit.

See

note 17 and accompanying text. In making that inquiry we will consider the pertinent factors bearing on the issue of residential placement identified above in Section IV(B).

Inclusion efforts:

Consider the steps the school district has taken to try to include the child in a special class within a regular or local community-based school setting (“a local placement”), including curriculum, supplementary services, and mainstream opportunities.

The handicapping conditions of someone such as R.H. dictate that her educational program consist of training in basic living skills including communication, gross and fine motor skills, self help and social skills,

*504

and vocational skills. She is not expected to ever reach the level of readiness for any real academic instruction. There is no disagreement on those needs.

R.H. is provided with a day school program that is completely devoted to addressing those categories of basic needs. Her curriculum is based upon a comprehensive Curriculum Guide for the Trainable Mentally Retarded developed by Ms. O’Keefe, from which Ms. O’Keefe selected and amplified what she considered the suitable goals and objectives in relation to R.H.’s individual level of development and learning needs. Thus, the interim and proposed IEPs, (Ex. J-44; Ex. J-48) target skill development in those five main areas. The accompanying Instructional Guide sets forth the class schedule for R.H. as well as individualized techniques and strategies, adaptive equipment and modifications, and applicable instructional materials. Other instructional summaries include descriptions of adaptive multi-cultural activities during the school year, and listings of TMR school and community activities, with related calendar events. Ms. O’Keefe uses the IEP in her daily work with each student, and she sends home an annotated copy of the IEP containing teacher observations each quarterly marking period.

The Ocean Township Intermediate School, located approximately four miles from R.H.’s home, is a large building set on seventy-nine acres with an enrollment of approximately 1,200 students, including six handicapped classes. In January, 1995 there were five students in R.H.’s class, including R.H., all of whom were classified as trainable mentally retarded. That number remained the same the next year, with the departure of one student for transition to an ARC program, and the arrival of one. R.H. is described as fitting into the class at a slightly higher functioning level than one of the students and lower than the other three students.

Ms. O’Keefe, the primary teacher for the class since 1987, has solid credentials and experience. She is assisted in the classroom by a full-time aide who has been with the class for at least the same period of time. There are additional teachers for R.H. in the specialty areas of adaptive and developmental physical education, home economies, art and music. The program for R.H. also includes two 20-minute sessions per week with the speech therapist, a licensed speech-language ' pathologist with a master’s degree.

The TMR classroom was specially designed for teaching the handicapped. It is set up in learning centers which Ms. O’Keefe described in her testimony. There is an entry area, a living room area, a dining room/working area, an area with a bedding arrangement, a listening center, an instructional/chalkboard area, a full kitchen (including a maintenance supply area and planned facilities for a clothes washer and dryer), and a handicapped-accessible private bathroom. Each of the areas is provided with the furnishings, equipment, and materials specific to its uses. R.H. and her classmates are also active in other parts of the school building, including the main entrance and commons area, the combination cafeteria and auditorium, and the Instructional Media Center, in addition to the physical education facilities and the art, music, and home economics classrooms.

R.H. attends the regular school hours, 8:00 a.m. to 2:30 p.m., for the district school year which is listed on the school calendar as having 184 days of instruction. Ms. O’Keefe was asked to estimate how much of R.H.’s weekly schedule is directed to the acquisition of basic life skills, and she replied,

I would dare to say that R.H.’s entire day is devoted to basic life skills[,] for every single thing that she does from the time she enters in the morning until the time she goes home in the afternoon I am focusing, as the other staff members are, on the development of life skills. She does have a course, in particular, Life Skills that really concentrates ... on the various life skills that are outlined in her IEP, but throughout the entire day I believe that the program is geared to developing R.H.’s total life skills, functioning as a delightful human being within an environment ... that is conducive to learning and going out beyond the classroom doors and extending those skills and applying them.

She also stressed the emphasis on language and communication in the program, stating,

*505

“throughout the entire school day I spend with each of the students developing language, I see it as a very, very important part of their full development!,] and communication as well, whether it is verbal or nonverbal.”

The basic class schedule for R.H. includes adaptive classes taught by Ms. O’Keefe in communication, vocabulary development, perceptual development, science and life skills, and vocational training. Ms. O’Keefe and her aide also teach and supervise the lunch period. R.H.’s basic schedule also includes the adaptive physical education program and three half-year units in art, music and home economies, as well as the twice-weekly speech therapy sessions, each taught by specialized instructors.

Two periods each day are set aside for language and communication instruction. Ms. O’Keefe testified that R.H. and another student in the TMR class are basically nonverbal. R.H. communicates by means of a few words, some guttural sounds, some signs that she has been taught, and through gestures and facial expressions.

According to the speech therapy evaluation, “R.H. has a good repertoire of signs she can produce when cued/prompted. Rarely are the signs she has learned clinically used in spontaneous contexts for functional purposes.”

Ms. O’Keefe indicated that the focus of the communications program is on developing expressive language, both verbal and nonverbal, as well as receptive language in terms of the ability to listen, understand and respond. She explained that she and the speech therapist work with R.H. on developing the ability to use sign language, which Ms. O’Keefe is teaching to the whole class so that they can better communicate with R.H. and the other nonverbal student. She also works on verbal and nonverbal articulation through mouth formation and imitation. She teaches word recognition, “not that !R.H.] can necessarily read the word, but that she has an understanding of the concept,” and expression using a communication board and other instructional materials such as flashcards, picture books and listening tapes. Ms. O’Keefe noted that these techniques are reinforced through instructional television, VCR and computer programs, reading programs using magazines and newspapers, and a weekly visit to the Instructional Media Center.

R.H. and the other members of the TMR class receive developmental adaptive physical education every day, where “the emphasis is on the individual development of skills as outlined in the IEP, with the hopes of strengthening muscle tone, increasing endurance and balance, locomotive skills and participation in sports.” Ms. O’Keefe stated that the gross motor training for R.H. also encourages the development of additional independence in moving around the school environment. Working with R.H. in the TMR class, Ms. O’Keefe and the aide also encourage fine motor skills, visual motor skills and eye-hand coordination through the use of various techniques. The art and music units of instruction, in addition to providing creative communication and socialization opportunities, were also described as occasions for development of fine and gross motor skills. For example, as observed by Ms. O’Keefe, “!R.H.] loves to dance and she makes a fine attempt at it. She does really, really enjoy that.”

The acquisition of basic living skills and social or behavioral skills is addressed throughout R.H.’s daily program, with special emphasis during the periods designated for math/perceptual development, home economics, lunch, science and life skills. The testimony of Ms. O’Keefe and the exhibits reflecting the program established that functional areas including toileting, tooth brushing, washing, dressing, cooking, eating, housekeeping, laundry, environmental and safety awareness, social conduct and leisure activities are integral components of her educational program. Ms. O’Keefe stated that “in the classroom ... I try to maintain as much as possible a home environment---It’s a very natural and family like learning

*506

environment and the purpose of that is ... to extend the skills ... that the child is learning at home and bringing it into the classroom and vice versa.”

Ms. O’Keefe described a structured and consistent procedure for assisting R.H. with her toileting needs, incorporating instruction in skills of partially undressing and dressing, and the washing of the hands.

She provides R.H. with daily individual training in tooth brushing skills. Hand and face washing are also a part of daily class activities, such as after lunch. Dressing skills are worked on daily in class, involving outerwear such as coats, sweaters, socks and shoes. Ms. O’Keefe testified that she also discusses bathing and other aspects of personal hygiene in her instructional sessions with the children, and gives hands-on practice in various grooming skills such as brushing hair, use of tissues and nail care. She has also given individualized training in more personal aspects of self-care, such as shaving and more specific dressing goals, on request of parents or as agreed in a child’s IEP. She stated that within the class program she has not had occasion to completely undress or bathe any of the students. Her qualifications do include serving as a life skills training teacher for DDD outside the school setting.

R.H. receives training in eating procedures and etiquette on a daily basis during the lunch period, which is held in the cafeteria except on Thursdays when the TMR class prepares their own lunch in the classroom. Additional training in eating and food preparation and cleanup is provided during the home economics class, which also has a fully-equipped kitchen including a dishwasher. Ms. O’Keefe reported that R.H. feeds herself and does not have to be spoon-fed, although due to her high arch pallet and difficulty chewing foods, her teachers carefully monitor whenever R.H. is eating so that the foods are soft or are cut into small pieces. Ms. O’Keefe added that she herself has done research on feeding and nutrition for the handicapped child and has consulted with the speech therapist on that subject. The social aspects of eating are also addressed during this training.

R.H. and her classmates cook their own lunch one day each week as a learning experience under the supervision of Ms. O’Keefe and the aide. Ms. O’Keefe described the various tasks taught in the TMR classroom during the meal preparation, serving and cleanup. She said that the process is systematically divided into steps and jobs, which all of the students have the opportunity to perform in rotation. Ms. O’Keefe testified that while R.H. needs close supervision and guidance in these activities, she participates in all of them along with the other students in the TMR class.

The program for R.H. also includes other homemaking skills, in both the TMR and the home economics classrooms. Ms. O’Keefe testified that she has obtained several mini-grants, including a laundry skills training grant that provided the TMR classroom with the opportunity to obtain a clothes washing machine and dryer, in addition to the washer and dryer already in use in the home economics room. In the home economics program, R.H. is taught laundry skills including washing, folding and sorting dish towels. Within the TMR classroom Ms. O’Keefe works on folding and sorting of clothing items, and she anticipated expanding the training in laundry skills when the washer and dryer were installed there later in the fall of 1996. Ms. O’Keefe also described a job training grant which enabled her to purchase maintenance supplies. Those are used to teach homemaking skills in the classroom. She also has the class use the maintenance cart and supplies in their activities in other areas of the school building.

See

note 49.

Occupational skills receive particular emphasis in the TMR program for R.H. because of their recognized importance for her future growth and development. Her vocational training is conducted daily, in order to develop the skills and necessary “attitudes, behavior and work habits” to perform such work. Ms. O’Keefe described a structured procedure in which “R.H. is completely familiar with what the expectations are. I will announce to the class—I always set the goals of the task before the class [—] that at this time

*507

we are going to do our jobs.” She described a typical vocational class as follows:

[Rjight now she’s packaging plastic spoons and there’s a lot of skills involved in that ... to get her to concentrate on picking up the plastic bag, being able to open the bag, place the spoon in and then place that package in another basket. So she’s working out of three baskets. So there’s a lot of skills involved in that, but she’s accomplishing that and after she does perhaps five[,] for every five that she does I will count them out as I do with the other students to determine their rate, their speed and their accuracy and as a form of reinforcement to keep going with the job[,] and from that she’s taught ... to work with other students. I turn on the radio to establish a working environment and I also turn on the timer to time the task.

Other examples of occupational learning include the housekeeping activities described above, and clerical skills such as stuffing envelopes, in which R.H. is working on increasing rate, speed, accuracy and organizing work supplies. Ms. O’Keefe testified that such classes also provide another opportunity for R.H. to improve her “time on task,” or attention span, under the guidance of the teacher.

At the end of the work week, as Ms. O’Keefe calls it, she gives the students a simulated paycheck, and she teaches the children about saving, using a simulated bank, obtaining cash, and using cash to make selections and purchase items from a vending machine. Ms. O’Keefe testified that although R.H. is not expected to be able to understand what things cost, she is learning that money is used to make purchases, and she is making vending machine purchases with close supervision. Aso, on field trips into the community (described below), the students participate in exchanging money for selected items as a learning experience.

Ml of these occupational educational activities are viewed by the school as having the purpose of helping to prepare the TMR students for other tasks on the outside, and to help them achieve their potential. Ms. O’Keefe stated that in all of R.H.’s training, and in particular the vocational training, the school staff are “working to maximize her fullest potential that she will be able to be a productive member of society. So all of her goals, while they’re presently being addressed, are also targeted towards the future, her future.”

In that connection, she confirmed that as part of R.H.’s transitional process, organizations such as DDD and ARC would be contacted to participate in the planning for her eventual transition into the community.

The curriculum for R.H. also includes life learning skills and information that Ms. O’Keefe described under the headings of math/pereeptual development and science/life skills. She testified that, for example, “the mathematics instructional area for R.H. is basically ... a development of life learning math skills such as measuring, pouring liquid, using measuring spoons ... and then developing her perceptual skills like with sizes, colors and shapes.” Instruction in that area also includes work on days of the week and weather conditions as related to the calendar, using displays and sign language. The science curriculum is integrated into the whole program, she said, including walks outside on campus in which nature and the environment are explored, and recognition of danger signs and development of safety skills such as street crossing are practiced, with supervision.

Ms. O’Keefe included social and behavioral aspects of the curriculum in her descriptions of all the units of instruction, both on campus and in the community. She also specifically noted that the TMR students have daily opportunities to develop socialization skills further through a variety of leisure and recreational activities, both planned and individually selected. The TMR Calendar of Events, which Ms. O’Keefe testified is presented to the parents at Open House in the beginning of the year, reflects activities both

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in school and in the community. The insehool social events listed there include classroom celebrations of birthdays and of holidays such as Halloween, the December holiday season, and Valentine’s Day.

Community based instruction is considered a very important part of the program for R.H. and her classmates, according to the testimony of Ms. O’Keefe. She stated that Wednesday is designated for community activities involving the TMR class. Those typically have included supervised shopping at the grocery store, pharmacy and mall; visits with the TMR class in the neighboring school district; intramural bowling; field trips such as apple picking at Eastmont Orchards and planned excursions to fast food and fine restaurants, the Paper Mill Playhouse, the Statue of Liberty, and Philadelphia.

The inclusion of R.H. and her classmates in the daily life of the school population is accomplished through many contacts which are actively encouraged throughout the program. Some of these are casual interactions such as in the common area at the beginning of the day, where Ms. O’Keefe or the aide frequently sit with their students and greet staff and other students. Other casual contacts are facilitated in the lunchroom where the TMR class regularly eats their lunch along with nonhandicapped classes. More direct interaction occurs through a variety of planned activities involving both the nonhandicapped students and students in other special ed. classes within the school. One of the ongoing programs is named Pride Club (People Recognizing Individual Differences in Everyone), a volunteer service group of nonhandicapped students at the intermediate school which establishes relationships with the various special education classes both at that school and in the community. One of the activities of that club is called Project Friendship, through which volunteers “work in particular with the TMR class as companions to build ... socialization and working skills.” It provides “another way of the non-disabled ... students coming into the [TMR] classroom or our students, the TMR students, going out into the school population and interacting with them at school functions, ... pep rallies, assemblies, and social events.” Project Friendship also includes the participation of volunteer eighth graders in the adaptive physical education classes with TMR students.

Ms. O’Keefe testified that the TMR class joins in school functions such as assemblies, celebrations, spirit week activities, and book fairs. She also described specifically designed interactive projects including Special Olympics, Pennies for the Planet, Random Acts of Kindness and Understanding Handicaps. Several of those activities are discussed below, under Factor Three.

Parental involvement in the educational process is emphasized for the TMR class as well as other handicapped students. There is a special ed. parent support group that functions as a specialized PTA, organized by the parents and joined in by the district, entitled FAST (Families Accessing Services Together). They have regular meetings on topics generated by the group, discussing and presenting speakers and training demonstrations. The district also maintains affiliations with DDD and ARC and is available to assist families to coordinate with them.

Ms. O’Keefe provides literature and information to TMR class parents on subjects of possible interest, both on her own initiative and in response to parents’ inquiries. She testified that she actively invites frequent communication with parents, through informal exchanges as well as parent-teacher conferences. Thus she stated, “[t]hey can ring me 24 hours a day if they had to, if there was a need, and I’ve always assured the parents and have never in the nine years that I’ve been working with the TMR class, have never had a complaint with regards to communication.”

Comparison of likely

benefits: Compare the educational benefits the child will receive in the local placement (with supplementary aids and services) to the educational benefits the child will receive in the more segregated setting of residential placement.

Plaintiff contends, and the ALJ found, that R.H. requires residential placement in order to receive “some meaningfiil educational benefit” under the

Rowley

standard, and therefore residential placement for

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R.H. constitutes the least restrictive environment for her individual educational needs. Our court of appeals said in

Oberti

that in the analogous situation of deciding between a regular and a special classroom for a handicapped student, it is appropriate for a court to consider the educational benefits the child would be likely to receive in the respective settings.

Oberti

995 F.2d at 1216. The

Oberti

court also recognized that in making this analysis, courts “will have to rely heavily in this regard on the testimony of educational experts.”

Id.

Courts must therefore evaluate the opinions of the experts on this issue, where such testimony is in conflict.

See, e.g., Oberti I,

789 F.Supp. at 1334-36 (discussing the “Battle of the Experts”). The teaching of

Oberti

also reminds us that in making this comparison, courts must pay special attention to those unique benefits the child may obtain from integration in a local school setting, such as the development of social and communication skills from interaction with nondisabled peers.

Oberti

995 F.2d at 1216.

REQUESTED RESIDENTIAL PLACEMENTS

Plaintiffs initial request for residential placement, through the letter of counsel dated April 19,1995, did not specify any particular residential facility. At the time that plaintiff formally filed for a due process hearing, the complaint letter dated August 2, 1995 sought that R.H. be placed “in a twenty-four hour residential facility such as the Melmark School.” Initially during the hearing, the parties were focusing on Melmark as the requested placement. However, it appears that at some time after the ALJ called the break in the hearing on October 27, 1995 and before the hearing resumed on February 5, 1996, plaintiff raised Bancroft as another residential facility for consideration in the ease.

Both Melmark and Bancroft performed initial admissions evaluations of R.H. and determined that she would qualify for admission into their programs. Accordingly, when the hearing resumed, representatives of both schools were presented as fact witnesses, to describe their programs. The ALJ in his decision rejected Melmark and ruled in favor of Bancroft as the required placement.

Neither of the parties’ medical experts, Dr. Gallina for plaintiff and Dr. Pietrucha for the district, were called upon to visit or evaluate either facility, or to observe R.H. in her current placement. Each of them reviewed the voluminous documentary history on R.H., and then examined and observed her in their office with her mother, whom they interviewed. The testimony of those two experts related to the issue of whether R.H. needed residential placement, rather than focusing on a particular residential facility. Plaintiff testified regarding her observations of both facilities, as did Mr. Petillo, the district’s Director of Special Services. Dr. Rapps visited Melmark only. Likewise, Ms. O’Keefe had occasion to visit Melmark, but not Bancroft. In this section we will first summarize the testimony describing the Melmark and Bancroft programs, then review and analyze the relevant opinion testimony.

Bancroft and Melmark are private facilities located approximately one and one-half to two hours from plaintiffs home, respectively. Both are licensed by the State of New Jersey to provide special education in school and residential components, basically operating twenty-four hours per day, 365 days a year. Each offers various programs for physically and/or mentally handicapped children and adults. The day program available for R.H. at each facility is similar to that offered in her current placement, concentrating on the same general areas of communication, gross and fine motor skills, self help and social skills, and vocational training.

The residential program at each facility is coordinated with the day program, with special emphasis on training in activities of daily living such as toileting, eating, dressing, grooming, and leisure activities. Each program brings the students into the community for activities such as shopping and attending entertainment and restaurants. Parental involvement is also encouraged by each school, and parent training is available. Bancroft provides some regular opportunity for interaction with non-handicapped students at neighboring schools, and each has volunteers from the community who interact with the

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students on campus. Bancroft in particular emphasizes the applied behavioral analysis method for its residential students. See discussion of that method in Section VII(B). Pertinent details about each facility are set forth in the full Opinion herein, but are omitted from this abridged version.

RESIDENTIAL PLACEMENT-OPINION TESTIMONY

The school district does not have the burden of proving that its proposed placement is the best available option, or even that it is better than the more restrictive environment of residential placement.

Scott P.,

62 F.3d at 533-35 . “[P]rogram optimality is not the standard____ [A] program is appropriate if it confers some benefit; it does not need to be superior to the alternatives.”

Id.

at 535 . Neither does the district have a burden to prove that the more restrictive placement sought by the parent or guardian is inappropriate for the child.

Id.

at 533 . It is equally settled in this jurisdiction that the standard for evaluating a proposed placement is not the “best achieve suceess-in-leaming” standard.

See Lascari,

116 N.J. at 47 , 560 A.2d at 1189 , discussed above at note 36. Rather, in the context of evaluating a demand for residential placement, it is clear that in comparing the anticipated benefits of the program offered by the district with those of the programs advocated by the parent or guardian, the standard is that the district’s program of specialized instruction and related services must be likely to confer some meaningful educational benefit, also referred to as more than de minimis or trivial benefit, as defined in

Rowley

and its progeny.

See

Section TV(A).

The district presented the opinion testimony of Ms. O’Keefe, R.H.’s primary teacher, as well as that of the members of the child-study team and Mr. Petillo, the Coordinator of Special Services for the district, on the issue of whether residential placement was necessary for the educational benefit of R.H. Their testimony was unanimously supportive of the district’s contention that R.H. is receiving, and is likely to receive, meaningful educational benefit in her current placement, and does not require residential placement.

Ms. O’Keefe testified, for example, that she has recommended residential placement for students in the past, but it is not her opinion that R.H. requires residential placement.

Ms. O’Keefe stated that in reviewing R.H.’s progress during the relatively brief period she had been in the district, “while R.H.’s gains have been slight I do see growth taking place in her life skills training, her vocational areas, her communication skills, [and] her socialization skills.” She also referred to growth in R.H.’s “perceptual development, such as an awareness of things in her environment and quantitative and positional concepts.” Ms. O’Keefe and other witnesses described some of their observations regarding the benefits noted since R.H.’s arrival.

See

discussion of Factor Five below.

Ms. O’Keefe and Mr. Petillo each observed that the same areas of instruction offered in the residential programs are “firmly in place” in the program provided by the district. Mr. Petillo, who visited and observed the programs at both Melmark and Bancroft, stated that in his opinion, while both were fine programs if a student had to be placed residentially, he did not believe that residential placement was a program that R.H. needed for her educational benefit.

The district also presented the testimony of Dr. Dorothy Pietrucha, a physician who is board certified in pediatrics, psychiatry and neurology with special competence in child neurology.

Her practice is limited to

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child neurology, and she treats many children who have a functioning level similar to that of R.H.

Dr. Pietrueha testified that R.H. at the age of fifteen had reached her full intellectual potential which would not improve, and that because her level was so limited, any further progress that she might make would be “a miniscule progress.” Dr. Pietrueha testified that based upon her evaluation of R.H. and all of the information provided in this ease, she did not believe that residential placement was necessary for R.H.’s education, stating, “I don’t believe that a residential placement is going to have any educational benefit for a child, specifically for R.H., or any child functioning at this level. There will not be any educational benefit to residential placement.” She said that she has been asked by parents whether she would recommend residential placement for a disabled child, and has made such recommendations in a few eases. Dr. Pietrueha further testified that R.H. does not in her opinion have any behavioral problems that would warrant placement within a residential facility.

The opinion testimony of Dr. Pietrueha regarding R.H.’s educational potential, as well as the testimony of the other witnesses on that subject, is set forth and analyzed below, in the discussion of Factor Seven. Dr. Pietrueha added that in her opinion, plaintiff needed some parent training to help her cope with R.H.’s toddler level of behavior, “because her mother can process and understand the training, and R.H. would then benefit.” That topic is discussed below, under Factor Nine.

Plaintiff presented two witnesses who expressed expert opinion on the issue of whether R.H. requires residential placement, Dr. David Gallina and Dr. Rhonda Rapps. Dr. Gallina is a physician who is board certified in psychiatry and neurology, as well as forensic psychiatry, and has a private practice in

*512

neuropsychiatry for children and adults; he also maintains a learning disability center which is state-certified as an independent child-study team. Dr. Rapps has a Doctor of Psychology degree and is a licensed clinical psychologist and certified school psychologist whose private practice includes doing psychological evaluations for school districts or families, and participating as a member of an independent child-study team.

Dr. Gallina used the assumption in his testimony that the current day program is an excellent program, during the periods of time that it is provided to R.H. His opinion was that no matter how suitable and appropriate the day program might be, it would not be adequate to meet R.H.’s educational needs because of its limitations of time and location. He offered his medical opinion that R.H. requires residential placement or its functional equivalent, in order to provide consistency and structure throughout R.H.’s day and night for the acquisition of daily living skills. He expressed the opinion that plaintiff could benefit from some parent training. However, he said that it would be unreasonable to expect R.H.’s parent, or any parent in the circumstances, to be able to provide training to the child that would equal the quality and quantity that a professional staff could supply.

Dr. Gallina’s stated reasons for his opinion were basically twofold: First, he stated that a person with the severity of R.H.’s neurological handicaps requires structure, consistency and reinforcement because of their inability to generalize what they learn in one setting so as to apply it in other settings, and because of their tendency to regress during periods lacking such reinforcement. Second, he asserted that R.H. needed to acquire improved basic self-help skills so that she would be acceptable in a group home setting upon completion of her public education, and would thus be able to avoid being institutionalized. Each of those reasons requires discussion and analysis here.

The first basis for Dr. Gallina’s opinion in favor of residential placement was expressed by him in terms such as the following:

I think the problem was, and is very typical from a neuropsychiatric medical viewpoint in children like R.H., that the difficulty is, what I call, the transition in time and space. Where the child can’t make the transition from utilizing a skill in one set of circumstances, such as a structured program at school, to performing the same skill in a new environment____

[T]he child is simply not able to make the cognitive leap ... that allows the child to generalize the skill, or to universalize it to a new space, to a new set of circumstances. And in addition, ... there’s the problem of time. Much like with an extremely young child, what we consider short periods of time in adulthood are universally unbelievably long to the child. So ... a couple of hours away from a certain stimuli, or a certain structure, and the child totally loses the application of those skills.

These statements of Dr. Gallina are similar to the testimony of plaintiff in which she stated that R.H. can generalize from the school to the home environment “some, but very little.”

It is clear that this asserted basis would not alone constitute adequate support for residential placement. It merely identifies a characteristic that has long been recognized by our courts, and indeed was described by Dr. Gallina, as typical of those who have this degree of mental retardation. In fact, the language used by Dr. Gallina is virtually identical to the language used by our court of appeals in

Battle

to describe the handicaps of individuals thus classified: “[Severely and Profoundly Impa

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