G.A. v. River Vale Bd. of Educ., Civil Action No. 11-3801 (FSH)

CourtUnited States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
Writing for the CourtFaith S. Hochberg
PartiesG.A. by and through his parents L.A. and A.A., L.A., and A.A., Plaintiffs, v. RIVER VALE BOARD OF EDUCATION, Defendant.
Docket NumberCivil Action No. 11-3801 (FSH)
Decision Date18 September 2013

G.A. by and through his parents L.A. and A.A.,
L.A., and A.A., Plaintiffs,

Civil Action No. 11-3801 (FSH)


Date: September 18, 2013



HOCHBERG, District Judge:

This matter comes before the Court upon the parties' Cross-Motions for Summary Judgment pursuant to Federal Rule of Civil Procedure 56, Plaintiffs' additional Cross-Motion for Summary Judgment with respect to post-administrative hearing expenses, and the parties' Joint-Motion seeking to expand the record. Plaintiffs seek review of an Administrative Law Judge ("ALJ") decision on claims brought pursuant to the Individuals with Disabilities in Education Act ("IDEA"), 20 U.S.C. §§ 1400, et. seq. The Court has considered the arguments of the parties without oral argument pursuant to Federal Rule of Civil Procedure 78.


G.A., a six year-old boy, attended preschool at Temple Beth El in Closter, New Jersey, during the 2009-2010 school year, where he was screened for speech problems. After medical consultation, he was diagnosed with ankyloglossia, speech delay, and unilateral sensorineural hearing loss in his left ear. A private speech and language therapist, Julia Weksler, conducted an

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additional evaluation in March 2010, which confirmed G.A.'s hearing loss. He began therapy with Ms. Weksler twice per week. Several different evaluations place G.A.'s hearing loss in his left ear between mild and moderate-severe; his right ear is hearing normal. According to the evaluations, G.A.'s hearing loss is moderate at low and high frequencies and mild at middle frequencies.

G.A.'s mother, Plaintiff L.A., sent a letter to Defendant River Vale Board of Education (the "Board") on March 4, 2010, notifying the Board of G.A.'s hearing impairment and requesting an evaluation. Upon receiving the letter, the Board asked permission for the school nurse to conduct screening of G.A. The Child Study Team ("CST") also scheduled a meeting with his parents to discuss special education planning for March 25, 2010, to determine the nature and scope of the evaluations. After the meeting, the Board requested parental consent to conduct testing, including psychological, speech and language, and physical therapy evaluations. L.A. signed the consent form on April 11.

(a) The Board's 2010-11 Proposed Individualized Education Program

Between May and July of 2010, G.A. was evaluated by a private pediatric audiologist, a private speech and language therapist, the district physical therapist, and the district psychologist. CST member Carol Beierle also observed his private preschool classroom at Temple Beth El on June 7, 2010. On July 16, the Board convened the IEP meeting and Eligibility/Classification conference. L.A., case manager Beierle, and district teacher Lisa Dalto were present. At the meeting, the district provided a draft Individualized Education Program ("IEP") recommending placement at the Roberge School, an in-district school that had an integrated program and a self-contained program. L.A. objected to the self-contained program

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because students were removed from the general population. The Board changed its IEP to recommend placement in the integrated program, which has an even proportion of disabled and non-disabled students. Ten days after the initial IEP meeting, July 26, the district forwarded the proposed IEP to Plaintiffs.

The proposed IEP provided for speech and language therapy twice per week, physical therapy once per week, an FM hearing aid, and placement in the Roberge integrated preschool classroom with special education qualified teachers and aids. It did not provide for extended school year ("ESY"), occupational therapy, transportation, individual therapy, or an ear-level personal hearing aid.

G.A.'s parents objected, did not sign the consent form, and, on Aug. 2, 2010, initiated a due process hearing with the New Jersey Office of Special Education Programs. Among other things, Plaintiffs challenged the Board's placement at Roberge as denying G.A. a free and appropriate public education ("FAPE"). Plaintiffs also requested reimbursement for services they paid for during the summer months ("ESY"), reimbursement for a hearing aid, and alleged numerous procedural violations of the IDEA. When the 2010-11 school year started, the parents still had objections and the Board would not permit G.A. to start the school year at Roberge without signed consent. For that year, G.A. attended school at Temple Beth El.

(b) Administrative Proceedings

Over the course of four months, there were eight days of hearings, taking place on December 13, 2010, January 3, 2011, January 18, January 20, February 7, February 14, March 7, and March 21. ALJ Kelly Kirk reviewed 76 exhibits and heard testimony from ten witnesses, including five witnesses for the Plaintiff: L.A.; Kimberly Auerbach, M.S., CCC-A, a pediatric

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audiologist; Amy Nelson, director of Temple Beth El's nursery school; Julia Weksler, M.S., CCC/SLP, a private speech and language therapist; and Chaye Lamm Warburg, DPS, OTR/L, a private occupational therapist. Defendant called five witnesses: Carol Beierle, LDTC, G.A.'s case manager; Beth Bargetzi, the Board psychologist; Maria Rohsler, the Board speech/language therapist; Lisa Benecaso, certified special education and general education teacher; and Joelle DeGaetano, a school social worker. On April 14, 2011, Judge Kirk issued a 59-page opinion with 17 specific findings of fact and 18 conclusions of law, ultimately denying most of Plaintiffs' claims for educational reimbursement. The relevant findings include:

(1) both parties were at fault for a 54-day procedural delay in implementing the IEP;
(2) the Board would not have been able to evaluate G.A. for speech and language therapy or audiological needs within the statutory timeframe; therefore, the Board must reimburse Plaintiffs for their private evaluations in June and July 2010;
(3) despite certain procedural issues, G.A. was not deprived of meaningful educational benefit;
(4) the Board's proposed hearing aid, a desk level FM system, provided G.A. meaningful educational benefit, whereas the Plaintiff's requested aid, an ear level FM system, was not required for G.A. to receive a FAPE;
(5) G.A.'s scores in the speech and language therapy evaluation were within the average range and that small group speech and language therapy two times per week was sufficient to address G.A.'s speech and language deficits;
(6) the Board's proposed physical therapy regimen of one 30-minute session per week, as recommended by the physical therapist, was appropriate, and that there was no evidence that G.A. required individual therapy, rather than group;

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(7) considering reports of G.A.'s progress over breaks, observation, and regression and recoupment analysis, no ESY programs were warranted;
(8) although G.A. required occupational therapy, which the Board did not provide in the IEP, its failure was excused because Plaintiffs did not provide sufficient time to conduct an occupational therapy evaluation before filing a due process challenge;
(9) As an interim measure, the ALJ ordered that G.A. receive occupational therapy once per week for 45 minutes until the Board conducts its own evaluation of G.A.'s needs;
(10) G.A.'s placement at Roberge Preschool, a structured program with about half special education and half general education students, classroom aides, certified special education teachers and numerous professionals, constituted a FAPE in the least restrictive environment; and
(11) alternatively, the district was relieved of its duty to implement an IEP and provide related services because Plaintiffs refused to consent to the proposed IEP.

Regarding the hearing aid, the ALJ discussed the three types of relevant devices. The first was a personal hearing aid, which is a device that is placed in the user's ear. The "ear-level" hearing aid amplifies sound directly and does not use an FM microphone. There were also FM aids, which operate by having a teacher speak into a microphone that broadcasts the FM signal to an amplification device near the student. There were two types of contested FM aids here: a coupled-aid, which is an FM aid that clips into an ear-level hearing aid and acts as a supplement; and a desktop FM speaker, which sits on the student's desk and amplifies the teacher's voice.

Relying on the audiological evaluation, the Board originally offered an unspecified FM hearing aid in the IEP. Believing that G.A.'s parents purchased an ear-level hearing aid on their own, the CST offered Plaintiffs the FM coupled aid to supplement his ear-level aid. Plaintiffs

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informed the Board that they had not yet purchased the ear-level aid and requested that the Board provide one at no cost. When L.A. and the Board could not agree on payment for a personal ear-level hearing aid, the Board offered a desktop-level FM speaker.

Relying on Letter to Seller, 20 I.D.E.L.R. 1216 (OSEP 1993), the ALJ noted that the question of whether assistive technology, like audiological aids, should be provided by the school free of charge is decided on a case-by-case basis. The Board must purchase a hearing aid only where the student requires access to that particular device to receive a FAPE and it is specified in the IEP. In this case, the ALJ determined that either a desk-aid or the ear-level aid would have provided G.A. with meaningful benefit. Judge Kirk also noted that the December Auerbach Report recommended "daily use of monaural hearing aid during all waking hours." Thus, she found that it was a hearing aid for personal, not specifically for educational and therapeutic use. Consequently, the ALJ concluded that G.A's hearing loss in his left ear could be adequately addressed using the Board's proposed desktop FM system, which would provide meaningful educational benefit in the classroom.


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