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Cases

A History of Success in New Jersey Special Education Cases

Our Legacy of Service

For more than 40 years, Cranbury, New Jersey–based Sussan, Greenwald & Wesler has helped thousands of special needs children obtain access to educational opportunities they would not otherwise have had.

The following are representative cases:

Third Circuit Court

D.M.S. and A.S. o/b/o D.S. v. BAYONNE BOARD OF EDUCATION:

Reimbursement for private parental placement granted as parents proved that access to education was not offered and that the IEP was not appropriate.

D.S. v. BAYONNE BOARD OF EDUCATION:

The 3rd Circuit Court of Appeals found that a court should not place conclusive significance on special education classroom scores. Although the district presented evidence that D.S. was achieving high academic marks, his standardized testing indicated a decline in academic functioning. The parents were awarded a private placement at the district’s expense.

J.H. v. BERNARDSVILLE BOARD OF EDUCATION:

Favorable ruling on behalf of parents, awarding tuition reimbursement and affirming that IEPs were inadequate and denied J.H. his right to a free appropriate public education.

GEIS v. BOARD OF EDUCATION OF PARSIPPANY-TROY HILLS:

Case discusses standards that existed in NJ in 1985.

Federal District Court

T.O. et al v. SUMMIT CITY BOARD OF EDUCATION:

The Administrative Law Judge had held that Summit failed to provide a free, appropriate public education to a child, J.O., who suffered from apraxia of speech and dyspraxia. Jayne M. Wesler, a partner at SGW, tried the case before the ALJ for J.O.’s parents.

J.M. and M.M. v. MORRIS SCHOOL DISTRICT BOARD OF EDUCATION:

Court upholds administrative law ruling that awarded tuition for child privately placed by parents, finding that the local BOE did not offer a free appropriate public education.

K.D. v. HOLLAND TOWNSHIP BOARD OF EDUCATION:

A U.S. District Court judge reversed the decision of the administrative law judge who had found that K.D.’s parents were not entitled to reimbursement because they failed to notify the school district within ten days of K.D.’s enrollment in her private placement. The U.S. District Court judge found that the parents’ wait over six months to request reimbursement was reasonable, as they wanted to be sure that K.D. was receiving the educational benefit from her private placement since the district had failed to provide K.D. with a free appropriate public education for six years. The failure to give the school district ten days’ notice did not bar reimbursement.

J.B. v. WATCHUNG HILLS REGIONAL SCHOOL DISTRICT BOARD OF EDUCATION:

Reimbursement permitted to parent even though a child had not previously received special education and related services from defendant board of education.

S.O. v. EGG HARBOR TWSP BOE:

Residential school ordered for a dyslexic child.

Office of Administrative Law

N.H. ON BEHALF OF N.H. v. FREEHOLD REGIONAL BOARD OF EDUCATION

Based upon the evidence and testimony presented, the ALJ determined that the district IEP provided no meaningful educational benefit and resulted in a denial of NH’s right to a free, appropriate public education. N.H. required a program that adhered to a structured, data-driven ABA approach and which provided more functional and practical goals. The out-of-district program was found to be the least restrictive environment for N.H. Petitioner was entitled to full reimbursement for placement in the specialized out-of-district educational facility.

J.H. AND S.R. ON BEHALF OF E.H. v. MORRIS SCHOOL DISTRICT BOARD OF EDUCATION

The profound and severe nature of E.H.’s dyslexia, and his impairment in reading and writing, together with his anxiety disorder, auditory processing disorder, ADHD, and poor working memory, E.H. requires an intensive and immersive program that provides him with small group, individuated and multi-sensory instruction to remediate his learning disability. The June 2019 IEP did not provide for such a program. The Board of Education was ordered to pay for the reimbursement for the Craig School for the 2018–2019 and 2019–2020 school years.

G.B. and L.B. o/b/o B.B. v. Hunterdon/Voorhees Regional High School Board of Education

The student had been placed by his K-8 school district in a specialized out-of-district school. Upon his reaching the ninth grade, he became the responsibility of the regional high school district. The parents reached out to the district prior to the transfer to develop an appropriate IEP for B.B. The district failed to act in a timely manner and failed to develop an individually tailored program. The ALJ agreed that the district failed to make FAPE available and ordered continued placement at the out-of-district placement.

J.M. and A.M. o/b/o M.M. v. Middletown Township Board of Education

The school district erroneously labeled MM as a cognitively impaired student and placed him in a highly restrictive and not appropriately academically challenging, or language intensive learning environment. The Petitioners presented evidence to show that MM was a student with average range learning potential and that he required a program in which language was the primary focus and integrated throughout the program, with opportunity for mainstream instruction and placement with average range functioning peers.

S.S. and S.H. o/b/o P.S. v. Colts Neck Township Board of Education

The ALJ ruled in favor of the parents, finding that the school district had denied P.S. an appropriate education within his home school. The district IEP was not designed to address P.S.’s unique learning needs. The ALJ found that the parental placement in a specialized out of district school was reasonable under the circumstances. The district was ordered to reimburse the parents for P.S.’s placement in a specialized out of district school and to maintain his placement there as long as the placement remained appropriate.

B.P. through his parents, R.P. and J.P., v. Board of Education, Brick Township

Expert testimony supported that B.P. had greater emotional functioning and academic potential than what was achieved in the district setting. Educational testing showed that B.P did not make meaningful educational progress in the district program. The district staff failed to evaluate him in all areas of suspected disability. B.P. was socially isolated in the district program, suffered untoward treatment by his peers and his psychological functioning had regressed. The ALJ ordered placement in a private setting.

N.E. v. Tinton Falls Board of Education

The student demonstrated a functional discrepancy between his home-based program and his district school-based program. N.E. was consistently demonstrating skills at home which were not yet introduced or were not considered to have been achieved in the district program. The parties agreed to independent evaluations and the district disagreed with the independent evaluator’s recommendations. Petitioners placed N.E. in an out of the district, general education setting. The ALJ agreed that the district program did not provide an appropriate program in the least restrictive environment and ordered the district to reimburse the parents for their private placement.

P.R. o/b/o J.R. v South Brunswick Board of Education

JR attended an out-of-district day program for eight years where he made minimal progress and regressed in some areas. J.R.’s IEP contained goals that were repeated and not achieved over the course of years. J.R. was further required to travel to and from the out-of-district day program three hours per day strapped into a seat. The ALJ found that the out-of-district day school provided by the district was not the appropriate, least restrictive setting and ordered placement at an out-of-state residential school. The residential program showed that it was willing and able to address J.R.’s social skills, activities of daily living, community, and vocational needs.

E.C. v. Toms River Board of Education

Educational testing showed that E.C. made little to no progress in her district program over the course of several years. The IEP’s failed to address E.C.’s behavioral needs; an impediment to her learning, or her failure to achieve academically commensurate with her measured intellectual capacity. While the district argued that it was not legally required to maximize a student’s potential, the ALJ found that its decision to place E.C. in a classroom that was intended for students with below-average functioning was restrictive and contributed to behavioral and academic regression. The ALJ ordered a revision of the IEP and placement in an out-of-district setting.

J.D. and C.D. o/b/o C.D. v. Cherry Hill Board of Education

The ALJ determined that the district failed to make available a free, appropriate public education, that the parents’ unilateral placement of C.D. in an out-of-district program was reasonable, and the out-of-district program was able to provide C.D. with the program recommended by the experts. C.D. made progress at the out-of-district program. The district had the opportunity to revise its IEP to make it more appropriate and failed to do so. The ALJ ordered that the district reimburse the parents for the cost of C.D.’s placement and to maintain the placement going forward.

J.O. and S.O. o/b/o R.O. v. Caldwell-West Caldwell Board of Education

R.O. was a student with various psychiatric and psychological disorders and was a safety risk to himself and others. The parties struggled to identify appropriate placement. The parties applied to a dozen therapeutic residential programs. R.O. had been rejected by all but one due to his need for intensive, structured support, complicated by his cognitive learning differences. The district argued that a day program, with wrap-around services provided outside of the school day, could meet his needs, and that the request to place him residentially was based on emotional, rather than educational needs. The ALJ found that it was not possible to separate R.O.’s social, emotional, and behavioral needs from his academic needs. R.O. indeed required a residential component to provide consistency, stability and to promote generalization. The ALJ found that the district was responsible to provide R.O. with a residential program to fulfill its obligations under the IDEA.

S.C. o/b/o D.C. v. Bernards Board of Education

D.C. was not learning skills necessary to increase independence within his district program. The district placement was further increasing D.C.’s level of anxiety. D.C.’s placement was a mixture of segregated, self-contained placement with just three other students, and mainstream classes with an aide during which time he did not interact with other students. The ALJ found that the district program failed to confer meaningful educational benefit in the LRE and ordered D.C. be placed in a specialized out-of-district program.

A.G. v. Old Bridge Board of Education

A.G., a classified student, was ordered to return to school following suspension for behavioral issues. The district was ordered to put into place modifications to lessen environmental factors that led to the student’s behavioral issue, enabling A.G. to finish out his eighth-grade school year in the district.

C.D. o/b/o D.D. v. Warren Hills Regional School District Board of Education

Based on a lack of progress, the ALJ determined the district had failed to address D.D.’s needs by failing to timely evaluate D.D., despite parental requests and despite D.D.’s deterioration. D.D. became a danger to himself and others and was recommended to attend a therapeutic residential program. The ALJ found that D.D. was eligible for special education and related services as a matter of law and ordered the district to provide compensatory education, retroactive reimbursement for his residential program, and continued residential placement at district expense.

A.P.G. and A.G. o/b/o S.G. v. East Windsor Township Board of Education

S.G. was eligible to receive a FAPE through a Section 504 Plan. However, the proposed placement failed to consider the totality of S.G.’s needs in the educational setting arising from his various diagnoses, including cerebral palsy and asthma, and would have required him to walk greater distances, depleting his oxygen needs. The district had suggested allowing S.G. to leave classes early to begin traveling to and from his classes. The ALJ found that the proposed in-district program was not appropriate and that S.G. was appropriately placed at the out-of-district school.

R.L. v. Lenape Regional High School District Board of Education

The district removed R.L. from school following a behavior incident. Petitioners prevailed on an Emergent Relief filing asserting that R.L.’s disabling condition had contributed to the incident. The ALJ ordered that R.L. be permitted to return to school under the provisions of his Section 504 Plan.

S.A. o/b/o G.A. v. Delanco Township Board of Education

The ALJ found that the student required a half-day program grounded in Applied Behavior Analysis /Discrete Trial Training methodologies and overseen by a behavioral consultant or psychologist with a 1:1 ABA trained aide. The district program could not offer appropriately trained staff. Although the staff was willing to undergo training, G.A. would be without programming in the interim, and would then be the first student to receive the services by the newly trained staff. This was not appropriate for this student. The ALJ ordered that G.A. be placed in an established program with experienced staff.

J.R. o/b/o T.B. v. Metuchen Board of Education

Petitioners prevailed in seeking for their son to be readmitted to his home school following a transfer to a therapeutic school resulting from a behavior incident. The school’s decision to rely upon an incident that occurred outside of school was discriminatory. The ALJ ruled that the district could not rely solely upon T.B.’s behavior outside of school to determine his fitness to attend school and ordered him be permitted to return to the district program.

J.S. o/b/o M.S. v. Springfield Township Board of Education

The district argued that a parental placement of M.S. at a specialized out-of-district school was “premature” and too restrictive. While the district argued M.S. made progress in district, closer review indicated that progress was limited. Contrarily, the out-of-district school targeted M.S.’s specific needs and he made meaningful progress in that setting. The ALJ ordered reimbursement and continued placement at the out-of-district school.

North Brunswick Township Board of Education v. D.R. o/b/o C.Z.

The school district brought an action against the parent of C.Z. seeking an order directing C.Z. to be placed in the in-district program, or in the alternative, ordering D.Z. to be responsible for the cost of C.Z.’s out of district placement. The school district unilaterally modified C.Z.’s program which caused C.Z. regression. The parent obtained private evaluation which was shared with the district and the district ultimately modified C.Z.’s program to address the issue identified in the parentally obtained evaluation. The district then filed a petition seeking to compel C.Z.’s return to an in-district program. The parties were able to reach an agreement as to the prospective placement. The parent then sought and was awarded reimbursement for costs incurred during the period in which the district failed to make FAPE available, including the cost of the evaluation, the cost of private therapy, and the cost of tuition at a private placement.

K.W. by his parents W.W. and C.W., v. Hanover Township Board of Education

K.W., a classified student, was suspended and placed on home instruction while the parties determined his placement for the upcoming school year. When no other public school districts were willing to accept K.W., the parents requested that K.W. be permitted to return to his district home school, in the least restrictive environment. The school district refused to accept K.W. back and recommended he be placed in a self-contained program offered by a regional public agency. The ALJ concluded that K.W. did not present as a danger and ordered on Emergent Relief that K.W. be readmitted to his local school, with the provision of services and supports necessary to enable him to access his education.

R.H. o/b/o B.B. v. Rancocas Valley Regional High School District Board of Education

ALJ found that the district IEP did not meet the student’s needs as both a gifted and disabled student.

S.A. and I.A. o/b/o N.A. v. West-Windsor Plainsboro Board of Education

N.A. was awarded continued placement in her out-of-district school on an Emergent Relief filing through the Stay-Put provision.

P.C. and J.C. o/b/o R.C. v. Harrington Park Board of Education

The Decision tested the definition of “current educational placement” under the stay-put provision. The District was ordered to maintain the after-school, home program hours, despite the student having been unilaterally placed. The home program was deemed part of the operative placement, actually functioning at the time the dispute arose and thus the stay put program.

R.M. and D.S. o/b/o R.M. v. Watching Hills Regional High School District

Petitioners won on Emergent Relief seeking stay put of a private placement. Petitioners had transferred to a new school district and the district refused to maintain R.M.’s private placement. The district argued its program was comparable, despite that it had not met the student, observed his program, evaluated him or taken into consideration the recommendations of the professionals working with R.M. Petitioners disputed the validity of the district’s claims and the Court sided with the Petitioners, ordering that the District fund the private program as the stay-put placement.

T.O. AND K.O. ON BEHALF OF J.O., v. SUMMIT BOARD OF EDUCATION:

Board of education ordered to pay for child’s private school placement due to BOE’s failure to provide free and appropriate public education in the least restrictive environment.

J.M. AND H.M. ON BEHALF OF H.M., v. OCEANPORT BOARD OF EDUCATION:

Board of Education ordered to provide Braille instruction for blind children who need it.

S.F. AND S.F. ON BEHALF OF G.F., v. VERONA BOARD OF EDUCATION:

Parents are awarded reimbursement for unilateral private school placement due to BOE’s failure to provide free and appropriate public education.

P.B. and M.B. o/b/o T.B. v. Wanaque Board of Education

Board of Education ordered to pay for child’s private school placement, as parents proved that free and appropriate public education was not offered and that the IEP was not appropriate.

J.S. AND B.S. ON BEHALF OF J.S., v. PASSAIC CITY BOARD OF EDUCATION:

Parents win by motion for summary judgment. In this case, the district never formally proposed a program because it did not hold an IEP meeting, and it did not include the parents in the formulation process. Moreover, none of the other required constituent members of the IEP team were consulted or submitted any input for the “draft” IEP. Thus, there was a two-fold procedural breakdown in this instance: Not only were the parents excluded from participation but the other members of the team were as well, thereby depriving the parents of the expertise of those members of the IEP team. Therefore the parents’ opportunity to participate in the decision-making process regarding the provision of free and appropriate public education was seriously impeded, and the district has not proposed a program to be considered for the 2009-2010 school year.

R.T. AND T.H. o/b/o A.T. v. WEST WINDSOR-PLAINSBORO REGIONAL BOARD OF EDUCATION:

District’s refusal to offer reasonable accommodations in accordance with Section 504 of the Rehabilitation Act of 1973 overturned; parents’ position deemed reasonable and proper by the administrative law judge.

D.C. and J.P. o/b/o K.C. v LAWRENCE TOWNSHIP BOARD OF EDUCATION:

Unilateral placement in a private school not on the Department of Education approved list found to be justified and results in retroactive reimbursement.

R.S. o/b/o A.S. v. South River Board of Education

In this case, the parents contested the manifest determination review; sought a full-time aide; compensatory education; and other services from the school district.

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