State of New Jersey

New Jersey is an Equal Opportunity Employer

State of New Jersey

OFFICE OF ADMINISTRATIVE LAW

FINAL DECISION

OAL DKT. NO. EDS 03539-2020

AGENCY DKT. NO. 2020-31332

M.H. AND J.H. O/B/O A.H.,

Petitioners,

RIDGEWOOD VILLAGE BOARD

OF EDUCATION,

Respondent.

_________________

Beth Callahan, Esq. for petitioners (Callahan and Associates, attorneys)

Alyssa Weinstein, Esq., for respondent (Busch Law Group, attorneys)

Record Closed: July 5, 2023 Decided: July 7, 2023

BEFORE DANIELLE PASQUALE, ALJ:

STATEMENT OF THE CASE

This matter arose with the filing of a due process petition in accordance with the

Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415, by M.H. and K.H.

on behalf of their son, A.H. (“M.H. and K.H.”, or “Petitioner(s)” or “mom”), who is classified

as eligible for special education and related services. Petitioners assert that the

Ridgewood Village Board of Education (“Ridgewood”, the “Board”, or the “District”) failed

to offer A.H. an Individualized Education Program (IEP) that offered a Free and

OAL DKT. NO. EDS 03539-20

Appropriate Education (“FAPE”) for the 2020-21 and 2021-22 school years. They have

unilaterally placed him at the Craig School (“Craig”), a New Jersey private school; seek

reimbursement for the expenses there for the years in question including transportation.

ISSUES PRESENTED

Did the District offer FAPE in the IEP in question? If not, is the Craig School

Appropriate and are the parents entitled to reimbursement for that placement?

PROCEDURAL HISTORY

On February 27, 2020, the Petitioners filed a due process petition with the New

Jersey Department of Education on behalf of A.H. The matter was then transferred to the

Office of Administrative Law.

The petitioner’s request for due process was received by the Office of Special

Education Programs on February 28, 2020. The contested case was originally

transmitted to the Office of Administrative Law (“OAL”), where it was filed on March 10,

2020 and assigned to me thereafter. The COVID-19 pandemic led to significant delays

and on February 15, 2022, with my permission and consent of the adversary the

petitioners filed an amended due process petition with the New Jersey Department of

Education on behalf of A.H.

On or about March 19, 2020, the parties at the time, Ms. Beth Callahan and Mr.

David Rubin, were hopeful that the case had a good chance of settling so the next

scheduled hearing dates of July 22, 2020 and October 13, 2020 were adjourned at the

request of the parties. This adjournment also allowed for the Amended Petition to be filed

as it was during the height of the COVID-19 Pandemic and school shutdowns. At one

point, Ms. Weinstein took over the matter wherein the parties again attempted in earnest

to engage in settlement discussions. When those were unsuccessful, we resumed, and

I held five (5) days of hearing on April 27, May 3, May 5, July 27 and August 9, 2022. The

parties and I stipulated as to the issues at bar as listed above. After the August 9, 2022,

hearing date, there was more discussion of potential settlement. For a period, the parties

OAL DKT. NO. EDS 03539-20

were deciding whether we needed another date. The record remained open by consent

of the parties in order to obtain all transcripts and submit written summations. After

several adjournments were granted for good cause I scheduled and heard oral argument

on May 4, 2023 and the last responsive documentation required regarding exhibits was

received and verified on July 5, 2023 at which point the record was closed accordingly.

DISCUSSION AND FINDINGS OF FACT

Summary of Testimony:

Eileen Devaney, LDTC and Case Manager for the District

Development of IEPs and Degree of Parental Cooperation

Ms. Devaney holds a bachelor’s degree in elementary education and a master’s in

reading. She is certified by the New Jersey Department of Education (“NJDOE”) as an

Elementary School Teacher, Reading Specialist, Teacher of Reading, and Learning

Disabilities Teacher Consultant (“LDTC”). She is also certified by Fairleigh Dickinson

University as an Orton-Gillingham multisensory reading instructor, and she is trained in

the Readers’ and Writers’ Workshop program and the Wilson multisensory reading

program. Ms. Devaney taught various levels of elementary and middle school for

approximately twenty (20) years and worked as an LDTC for nine (9) years (six in

Ridgewood). At the time of her testimony, she recently returned to the classroom to

provide direct instruction to students. As an LDTC in the District from February 2014

through June 2020, Ms. Devaney consulted with staff to provide support for struggling

general education students, conducted standardized educational assessments for

students to determine eligibility for special education, and served as a case manager for

special education eligible students, developing their individualized education programs

(“IEPs”), creating individualized goals and objectives, answering parent questions, and

supporting school staff. As a result of the qualifications outlined above, I accepted and

qualified Ms. Devaney as an expert in learning disabilities teacher consulting (LDTC),

including conducting student educational evaluations, case management, and IEP

development, and thus I so FIND.

OAL DKT. NO. EDS 03539-20

Ms. Devaney conducted A.H.’s initial educational evaluation in 2017 (when A.H.

was in Kindergarten) utilizing the Woodcock Johnson IV Tests of Early Cognitive and

Academic Development. She testified that A.H.’s scores fell in the average to low average

range and demonstrated some variability in his skills. Following the evaluation, A.H. was

deemed eligible for special education and related services under the classification SLD

(Specific Learning Disability), and he remained eligible throughout the rest of

Kindergarten, all of 1

grade, and the portion of 2

grade that he spent in the District

before Petitioners unilaterally placed him at The Craig School in January 2019. As the

parties confirmed throughout the hearing and at oral argument, the parents waived stay

put which was to be the District after the term of the settlement for that time period and

the parents decided to keep him at Craig. As this is largely undisputed and corroborated

by documentary evidence, I FIND it as FACT.

In January 2020, after A.H. had spent one year at the Craig School, Ms. Devaney

conducted A.H.’s educational re-evaluation utilizing, the Woodcock Johnson IV Tests of

Achievement and the Woodcock Johnson Reading Mastery Tests, which she testified are

the “gold standard” assessment tools for students of A.H.’s age at the time. Again, A.H.’s

scores fell in the average to low average range. Ms. Devaney also interviewed A.H. and

found it unusual that, at nine years of age, A.H. did not know his own birthday.

Ms. Devaney reviewed the report issued by Petitioners’ consultant, Elizabeth

Kenny-Foggin, and opined that Ms. Foggin’s statement that “Some scores that appear

average are not subject to penalty for grammar and punctuation errors” misses the point

that the design of most of the Woodcock Johnson subtests is specifically not to look at

those skills, but instead to look at students’ “ability to construct a sentence when they’re

given three words, for example.” In response to Ms. Foggin’s statement that the basic

skills standard score was not included in the narrative portion of Ms. Devaney’s report,

Ms. Devaney explained that the basic skills score is a cluster score comprised of two (2)

subtests for which Ms. Devaney’s report addressed with a narrative. In response to Ms.

Foggin’s criticism that Ms. Devaney did not administer any expressive language subtests,

Ms. Devaney explained that, at the same point in time that she was conducting her

educational evaluation of A.H., the District’s speech language path ologist was conducting

OAL DKT. NO. EDS 03539-20

his own comprehensive speech language evaluation of A.H. which included an

assessment of A.H.’s expressive and oral language skills, so she deemed it best not to

burden the student with duplicative testing.

As part of the 2020 re-evaluation process, Ms. Devaney also conducted an

observation of A.H. at the Craig School, during which she noted that A.H. often asked

questions indicating that he did not understand what had just been stated by the teacher.

She also observed that the teacher often intervened and did things for the students rather

than explaining to the students how to do things for themselves. Ms. Devaney noted that

the class was taught using whole group instruction rather than individualized

assignments, and that the pace of instruction was very slow. Finally, Ms. Devaney noted

that the students’ writing assignment involved writing what they liked about the Craig

School, which struck Ms. Devaney as “a little bit of like an indoctrination of ideas about

the school … it seemed like they were trying to highlight how much better it is than where

he was … .”

Following the completion of the 2020 re-evaluations, Ms. Devaney continued that

an IEP meeting was held on February 12, 2020, at which time the District proposed an

IEP under which A.H. would return to the District in September 2020 in a program

comprised of, small group pull-out resource instruction for reading fifty (50) minutes,

writing fifty (50), and math fifty (50) minutes each day, plus an extra forty-five (45) minute

multisensory reading group each day, plus small group speech language therapy twice

per week, small group occupational therapy twice per week, and assistive technology. In

response to concerns expressed by Petitioners regarding A.H.’s transition back to the

public school, the District also offered to provide notice of extracurricular activities, a

summer tour, a meet-and-greet with the case manager and counselor, individual

counseling once per week, and the ability to participate in a social skills group or “lunch

bunch.” Ms. Devaney was A.H.’s District case manager at the time of the 2020 re-

evaluations and IEP proposal. As this is largely uncontested and corroborated by

testimonial and documentary evidence, I FIND it as FACT. (J21)

Ms. Devaney recalled that at the meeting, and it is largely uncontested that

Petitioners did not request any revisions to the 2020 proposed IEP. Instead, they asked

OAL DKT. NO. EDS 03539-20

the District to place A.H. at the Craig School. The District declined the request, stating

that the District has an appropriate program available for A.H. in the least restrictive

environment, which is his public school district. Ultimately, A.H. did not return to the

District, and thus I so FIND. (J-21)

Based on her professional experience and personal knowledge regarding A.H.,

Ms. Devaney opined that the 2020 proposed IEP offered A.H. an opportunity to make

meaningful educational and social-emotional progress in the least restrictive

environment, whereas the Craig School provided “a separate, small environment with

really no opportunities to be with general education peers and no opportunities to

participate in larger activities … .”

On both direct and cross-examination, Ms. Devaney stated that A.H.’s primary

area of deficiency is not reading, but rather higher-order thinking and working memory,

which she opined impacts all areas of his learning.

On cross-examination, Ms. Devaney stated that A.H. appeared “comfortable and

content and happy” both in Ridgewood and at the Craig School. Ms. Devaney did not

recall ever telling Petitioners that the District was going to “replicate” the Craig School

program. Ms. Devaney explained that the 2020 proposed IEP also included a monthly

multisensory reading consultation among school personnel to ensure that all staff are

“offering appropriate, efficient instruction to the child across content areas.” Exhibit J-

21 (at page 6-3).

Ms. Devaney explained in her expert opinion that standardized testing is not the

only way to tell whether a student is making meaningful educational progress. She stated

that the 2020 proposed IEP would have placed A.H. in general education classes for

science and social studies to allow A.H. to have “exposure to his peers and … the

opportunity to just be part of the class and be part of the groups and be part of the

experiments and -- and receive that -- that learning in that larger setting.”

When asked if A.H. should have initially been classified under the category

“specific learning disability” (“SLD”) rather than “communication impaired,” Ms. Devaney

OAL DKT. NO. EDS 03539-20

answered in the negative, explaining that an SLD classification is appropriate for a child

with “a discrepancy between their cognitive ability, their potential and their current

achievement in a specific area. With A.[H.], there wasn’t that discrepancy between his

IQ and his achievement. So [SLD] would not have been” his classification. As the

classification was stipulated by the parties as not at issue in this matter, I FIND his

classification is SLD.

Ms Devaney testified professionally and was a highly-qualified witness who I noted

was lovely, unrehearsed, and honest indicating to me that she was not biased albeit an

employee of the District. In fact, she was a strong witness looking for a good solution for

A.H. and as such I FIND that she was a very credible witness. In short, I FIND as fact that

she did the testing as indicated and that she made the observations as outlined above as

well as surrounding facts regarding A.H. and the details of his proposed IEP. In terms of

her expert opinion and the weight I will give it as to FAPE, I will address that in more detail

in the Expert Testimony section below in weighing which expert opinion had more

credibility in my ultimate findings of fact and conclusions of law in this matter. However,

it bears mentioning that I noted throughout her testimony that she was a very honest

witness, very skilled, forthcoming, extremely credible and I as such I gave her overall

testimony enormous weight, and thus I so FIND.

Additionally, it added to her credibility when she admitted on direct that she was

not sure if she went into depth with the parents on goals and objectives at the IEP

meeting. Another example of her candor was when pressed on cross examination about

whether the parents were given a physical copy of the IEP at the meeting, she was honest

that she did not know for sure, but she knew that it was a lengthy meeting and that she

was sure that parents were given a hard copy after the meeting. She also impressed me

when crossed on whether a diagnosis of Dyslexia as noted by the parents was valid; and

she noted that she did not question that. In fact, the classification of SLD noted there was

zero discrepancy between IQ and achievement so it would not have been the

classification regardless of the Dyslexia diagnosis. In addition, she admitted that at the

Craig school he made “slow and steady progress” in line with his learning profile but she

was clear that it was hard to tell how meaningful his progress was at Craig was. She

admitted he was learning, and not stalled or regressing. She was also clear that the only

OAL DKT. NO. EDS 03539-20

concerns listed by the parents at the IEP meeting (as memorialized in the IEP) was to

stay at Craig and A.H.’s transition to District. She was extremely honest. Again, I gave

her testimony a great deal of weight, and thus I so FIND.

Dr. Kate Killby, School Psycholgist for the District:

Dr. Killby, school psychologist for the District has her bachelor’s, master’s, and

doctoral degrees in psychology, and is certified by NJDOE as a school psychologist. She

has worked directly with children for approximately twenty (20) years, fifteen (15) of those

as a member of public-school child study teams. As a school psychologist, Dr. Killby

provides direct counseling to students, consults with teachers, parents, and other

professionals, conducts psychological evaluations to identify educational disabilities, and

serves as a case manager for special educational eligible students, developing and

overseeing the implementation of IEPs. (J-37). As a result, I qualified Dr. Killby as an

expert in school psychology, including conducting student cognitive evaluations, case

management, and IEP development. As this is largely uncontested, I FIND it as fact.

It is undisputed that Dr. Killby did not play any role in A.H.’s education before

Petitioners removed him from the District, and she did not conduct his initial 2017

psychological evaluation. However, she explained that as an expert school psychologist

she was able to interpret A.H.’s 2017 psychological evaluation report. She testified that

the results of the 2017 report, which included administration of the Wechsler Preschool

and Primary Scale of Intelligence (“WPPSI”), demonstrate that “[w]orking memory was

[A.H.’s] lowest area, which was in the borderline range of functioning or at the 8

percentile. His ability to reason with language, his verbal comprehension was assessed

to be in the low average range. And then, his visual spatial reasoning, fluid reasoning

and processing speed were all within the average range.” She opined that A.H.’s working

memory deficit “tells us that he had a hard time retaining information upon single

presentation of it.” A.H.’s full scale IQ at the time was “an 82, which falls in the low

average range” and is comprised of “a combination of subtests from each of the five areas

with greater weight being placed on the reasoning skills versus memory and processing

speed.” (J-2).

OAL DKT. NO. EDS 03539-20

Dr. Killby conducted A.H.’s 2020 psychological re-evaluation, after he had been at

the Craig School for one year. Since by that time A.H. had aged out of the scope of the

WPPSI, Dr. Killby administered the Wechsler Intelligence Scale for Children (“WISC”),

which measures the same five areas of cognitive ability. Once again, A.H.’s working

memory “continued to be an area of significant weakness,” and his score fell in the “very

low” range as defined by the WISC. She opined that there was “a significant drop” in

A.H.’s fluid reasoning score (also known as non -verbal problem solving), “where he had

previously been assessed to be in the average range and now, his score came into the

borderline range.” A.H.’s processing speed score rose from average to high average,

and his verbal comprehension score rose from low average to average. Dr. Killby opined

that, although A.H.’s full scale IQ score increased from 82 to 92, and she opined that that

10 point increase is “statistically isn’t all that different.” (J-18).

Based on both the 2017 and 2020 psychological evaluation results, Dr. Killby

concluded that “functionally, that working memory piece … would probably be one of the

most defining areas of weakness as far as his functioning in school. As his fluid reasoning

score went from 94 to 79, she explained that” non-verbal problem solving, is higher order

reasoning skills [so] I would expect that math would be a challenging area for the student

as well.” (J-18).

Dr. Killby noted A.H.’s increase of 14 points for processing speed. She opined that

cognitive ability begins to normalize at 6 years old and he was very young at the last test

which may account for the IQ increase. She continued that to have some change is not

unexpected and he was distractable during the testing she conducted and needed

redirection which she explained was likely the cause for the lower score on his processing

speed last time. In addition, Dr. Killby candidly and professionally noted that in his verbal

comprehension there was a “nice jump” in his scores from 88 to 106 but that prior lower

score could also be due to his youth. Regardless, she opined he was close to average

in this area even in the 2017 evaluation.

Dr. Killby noted that working memory was his biggest area of weakness and had

the biggest impact on A.H. across subjects. Again, that fluid reasoning, or non-verbal

OAL DKT. NO. EDS 03539-20

problem solving tends to be involved with math and thus that accounts for his potential

challenges there.

In addition to the testing, she reviewed and conducted above, Dr. Killby also

reviewed the report issued by Petitioners’ consultant, Elizabeth Kenny-Foggin, and

pointed out that in her opinion Ms. Kenny-Foggin inaccurately stated that the processing

speed portion of the WISC “artificially inflated” A.H.’s full scale IQ. In contrast, Dr. Killby

stated that A.H. had a full scale IQ of 92, which incorporated all areas (including

processing speed), but he also scored a 92 on the general ability index (“GAI”), which

provides an overall assessment of cognitive ability without including processing speed,

and that this demonstrated, in her opinion, that A.H.’s relatively high processing speed

score did not by any means “artificially inflate” his full scale IQ score. (P-32).

During her administration of the 2020 psychological testing, Dr. Killby noted that

A.H. was a “delightful little boy” and had difficulty staying still, but that he was “really very

engaged [and] connected with the material. He didn’t require any prompting when it came

time to assess something that required him to sit and look at something or write something

for me. He went right back to his seat and continued doing the task that was presented.”

The 2020 psychological re-evaluation also included a BASC rating scale completed by

one of A.H.’s teachers at the Craig School. She explained that the BASC measures

emotional and behavioral functioning in the classroom, and A.H.’s results were slightly

elevated for anxiety. Finally, Dr. Killby found it unusual that, at nine (9) years of age, A.H.

did not know his birthday, and did not correct her when she presented him with an

incorrect name. Dr. Killby was direct, qualified, and testified very adeptly rarely referring

to her notes, as such she was a very credible expert and fact witness, as such I FIND that

her scores and observations regarding A.H. during the testing she conducted as FACT

and gave her overall testimony a lot of weight. As with the other experts, I will weigh her

ultimate opinion against Petitioner’s witnesses in the Expert Testimony portion below. (J-

18).

Following the 2020 re-evaluations, Dr. Killby attended the February 2020 IEP

meeting with the District’s Child Study Team and the Petitioners. At that meeting, the

District proposed to bring A.H. back to the District beginning in September 2020, in a

OAL DKT. NO. EDS 03539-20

resource replacement program for reading, writing, math, and extra multisensory reading,

plus small group speech language therapy twice per week and small group occupational

therapy twice per week. Morning meeting, science, social studies, lunch, recess, and

specials (music, library, physical education, and art) would be provided in the general

education setting. In response to concerns expressed by Petitioners at the meeting

regarding A.H.’s transition back to the public school, the District offered extracurricular

activities, a summer building tour and teacher meet-and-greet, weekly individual

counseling, and a social skills group. Again, as Dr. Killby was an extremely credible

witnesses and these facts are corroborated by physical exhibits as well as largely

uncontested, I FIND them as FACT. (J-21).

Dr. Killby continued that, as a matter of practice, Ridgewood’s Child Study Teams

commonly use the period between IEP proposal and implementation to address parental

questions and requests for IEP revisions. At the February 2020 IEP meeting for A.H., Dr.

Killby testified, as did Ms. Devaney and the District’s other witnesses, that Petitioners did

not express any concerns with the District’s proposed program and did not request any

revisions to the IEP then or at any time thereafter. Petitioners did not make any requests

at the meeting other than a request that the District place A.H. at the Craig School as the

transition may cause some anxiety. The Child Study Team declined the request to

continue the out of district placement but did add transition services and therapy where

needed to help with the transition, stating that the District has an appropriate program for

A.H. in the least restrictive environment. Ultimately, A.H. did not return to the District. As

these facts are largely uncontested and corroborated by the documentation in this matter,

added to Dr. Killby’s credibility, I FIND it as FACT in this matter. (J-21).

When questioned about his SLD classification, Dr. Killby explained that it is her

opinion that a child’s classification category “opens the door to special education services”

but does not dictate the programs and services offered to students; instead, each

student’s program and services are based on that student’s individual needs.

Based on her professional experience and personal knowledge regarding A.H., Dr.

Killby opined as an expert in school psychology, that the 2020 proposed IEP was based

on A.H.’s individualized needs and offered A.H. an opportunity to make meaningful

OAL DKT. NO. EDS 03539-20

educational and social-emotional progress in the least restrictive environment which

would “allow [him] to continue to grow with [his] same age peers, both as role models and

social peers too,” whereas the Craig School offered “a very limited group of children … to

grow from and role model from.” On cross-examination, Dr. Killby candidly confirmed that

the 2020 proposed IEP did not contain a specific behavior plan for A.H. As noted above,

Dr. Killby was a highly qualfiied, direct, professional, and thus very credible witness. I

FIND she was unrehearsed, in fact I noted throughout that she was a great witness who

testified at a fast pace just as she had good independent knowledge of her piece of A.H.’s

IEP and did not need her recollection refreshed by her attorney. As such, that added to

her credibility as she was familiar with the case and did not appear to have an agenda,

but rather sought to get me the answers I needed to make a decision regarding the

appropriateness of the proposed IEP, as such I FIND she was an extremely credible

witness.

Kathleen Acosta, LDTC for the District:

Ms. Acosta holds a bachelor’s degree in special education and English and a

master’s degree in special and elementary education with a specialty in reading

disabilities. She is certified by NJDOE as an elementary school teacher, teacher of

students with disabilities, language arts literacy teacher, and LDTC. She is also trained

in the Orton Gillingham multisensory reading program and has completed all

requirements for her certification from Fairleigh Dickinson University. She has worked in

the field of education for approximately fourteen (14) years, the first seven (7) as an

instructor and the most recent seven (7) as an LDTC. As an LDTC, Ms. Acosta conducts

evaluations to determine eligibility for special education, consults in classrooms regarding

IEP goals and objectives, and serves as a case manager, developing IEPs, drafting goals

and objectives, and observing students. As her voir dire including a review of her CV

confirmed this, I qualified Ms. Acosta as an expert learning disabilities teacher consultant,

and thus I so FIND.

Ms. Acosta admitted that she never worked directly with A.H. In fact, she first

became aware of A.H. in December 2020 when Petitioners’ consultant Elizabeth Kenny-

Foggin requested to observe the word study, resource writing and multisensory reading

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classes that the District had proposed for A.H. in the 2020 proposed IEP. Ms. Acosta

observed the classes at the same time as Ms. Kenny-Foggin and later responded to Ms.

Kenny-Foggin’s request for documents and information following the observations. All of

the participants in the observed lessons (students, teachers, and observers) were remote,

due to an anticipated rise in Covid numbers following the holiday break. As the

attendance of Ms. Acosta and Ms. Kenny-Foggin was via Zoom and the date of that

observation are not in dispute, I FIND these as facts in this matter.

Ms. Acosta testified that she took handwritten notes during Ms. Kenny-Foggin’s

observation and later reviewed her observation report, at which time she noted (as was

later confirmed and clarified by Ms. Kenny-Foggin) there were several inaccuracies in the

portion of the report discussing the multisensory reading lesson taught by Christie

DeAraujo. First, Ms. Acosta noted that Ms. Kenny-Foggin’s report misidentified the date

of the observation and misidentified the teacher as Jaclyn Fanos, despite being advised

prior to the observation that the writing class was taught by Jaclyn Fanos and the

multisensory reading class was taught by Christie DeAraujo and also seeing that was the

case as she notes later in her testimony as outlined below. Second, Ms. Acosta testified

that Ms. Kenny-Foggin’s report failed to acknowledge multiple instances when Ms.

DeAraujo’s multisensory reading instructions were delivered both verbally and visually (in

fact, Ms. Acosta’s contemporaneous notes contain the “actual information that was on the

board that was given and bullet pointed for them. They weren’t just given multi step --

multi -- oral directions. It was also paired with it being written out visually for them to refer

back to”). Third, Ms. Acosta opined that Ms. Kenny-Foggin’s report stated that students

were not engaged or attentive when other classmates were reading, whereas Ms. Acosta

specifically observed the students “following the directions of reviewing -- as she was

reading, they were looking through the [word] list as well and they were engaged in the

activity;” Fourth, Ms. Acosta highlighted that in her expert opinion Ms. Kenny-Foggin’s

report failed to mention the differentiated word lists provided for each student’s individual

levels and failed to include the various multisensory reading strategies and error-

correction procedures implemented by Ms. DeAraujo throughout the lesson, including

modeling and prompts to code, highlight, read words silently and aloud, “trace and say,”

and associate words with meanings. Finally, Ms. Acosta opined that Ms. Kenny-Foggin’s

report incorrectly stated that the teacher did not mention whether the students earned

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points, whereas Ms. Acosta specifically noted in her contemporaneous notes that, at the

beginning of the class Ms. DeAraujo reviewed the goals and expectations and how many

points were needed for the end-of-week reward, and when the students earned a point

during the lesson Ms. DeAraujo told them they had earned the point. (P-32; J-47).

Ms. Acosta continued that, as part of a multisensory reading (also known as

“structured literacy”) program, rather than teachers correcting errors for students, in her

expert opinion it is preferable to prompt students to implement their own error-correction

strategies. In addition, Ms. Acosta noted that in her opinion, the pacing of the

multisensory reading class was appropriate for the learners in the class. Ms. Acosta

confirmed that Ms. DeAraujo’s class uses the lesson plans developed by Fairleigh

Dickinson University’s Orton Gillingham program. Ms. Acosta also recalled that after Ms.

Kenny-Foggin’s remote observation of the multisensory reading class neither she nor

anyone else requested an opportunity to come back to District and observe the classes

outlined above in person. As this was admitted by Ms. Kenny-Foggin in her testimony, I

FIND it as FACT that there was no such visit.

Next, Ms. Acosta testified regarding several inaccuracies in the portion of Ms.

Kenny- Foggin’s report discussing the writing lesson taught by Jaclyn Fanos. Specifically,

she listed that first, Ms. Kenny-Foggin’s report misidentified the class as

“English/language arts” when in fact it was a writing class. Second, Ms. Kenny-Foggin’s

report failed to acknowledge that the paraphrasing lesson was presented visually as well

as verbally (“The expectations were clear and they also had something visual in front of

them that was color-coded to help them understand what the expectation was”). Third,

she testified that Ms. Kenny-Foggin’s report incorrectly stated that the lesson was fast-

paced and confusing to the students, whereas Ms. Acosta recalls that “[a] quick pace was

appropriate for those students, especially considering they were remote at that time [so

the lesson was] moving along to keep them engaged in the activity;”. Next, Ms. Acosta

highlighted Ms. Kenny-Foggin’s conclusion that the students did not understand the term

“structure” and thus incorrectly assumed that the concept was new to the students that

day, whereas in actuality the concept of “structure” had been previously taught. Next,

Acosta noted that Ms. Kenny- Foggin’s report inaccurately stated that the students were

not engaged in the lesson, whereas Ms. Acosta specifically observed the students

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engaged in the lesson. Lastly, Ms. Acosta disagreed with Ms. Kenny-Foggin’s statement

that Ms. Fanos should not have provided a synonym to a student which she opined

ignores the fact that modeling is a key component of a structured literacy lesson. She

added that Ms. Fanos’ class included a color-coded lesson with differentiated word lists

and templates that students filled in during the lesson. (J-27, P-32; J-47).

Ms. Acosta further noted that Ms. Fanos’s writing lesson tied in concepts from the

multisensory reading lessons presented that week, to give students an opportunity to

carry over their skills. At no time after Ms. Kenny-Foggin’s remote observation of the

writing class did she request an opportunity to come back and observe the class in

person.

Ms. Acosta confirmed as did Dr. Killby above, that a child’s classification category

does not dictate the programs and services available to the student; instead,

determinations are made based on the student’s evaluations, data, and reports from the

teachers “to see where the weaknesses are and making sure we’re addressing them in

whatever program is best to meet those needs.” I noted throughout her trial testimony

that Ms. Acosta was not just agreeing with the District’s attorney but took the lead in

testifying with deep knowledge of her expertise as an LDTC. As a result, I gave her

testimony a lot of weight as she was extremely credible, and thus I so FIND.

In fact, when pressed on cross, Ms. Acosta opined that in her professional

experience, attention and distractibility issues, trouble with eye contact, tactile

defensiveness, and perseverative behaviors such as hand flapping are not signs of

dyslexia. In addition, Ms. Acosta acknowledged that there are times when she and

another observer do not necessarily highlight the same items following an observation.

She also added on cross examination that she never met or observed A.H. or CST

members or A.H.’s parents. At one point, Ms. Acosta even admitted that she may have

made a mistake in her report as her notes were not in report form. Again, these

admissions only added to her credibility as it did not change the substance of her opinion

and she remained professional and admitted on cross that Ms. Kenny-Foggin’s emails at

J2 appear “professional” as well. Thus, she did not attempt to feign first-hand knowledge

of the student or family or to malign Petitioner’s expert. Rather, she merely testified about

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her observations of the classes highlighted above in keeping with her proffer. These

candid concessions only added to her honesty and credibility and thus, I so FIND.

Christie DeAraujo, Multisensory Reading and Dyslexia Expert for the District:

Ms. DeAraujo holds a bachelor’s degree in interdisciplinary studies and a master’s

degree in special education. She is certified by Fairleigh Dickinson University, the

International Multisensory Structured Language Education Council, and the International

Dyslexia Association as an Orton Gillingham teacher, an Orton Gillingham dyslexia

specialist, and an Orton Gillingham teacher trainer. She is also certified by NJDOE as an

elementary school teacher, teacher of reading, teacher of students with disabilities, and

supervisor. She has received awards as an outstanding multisensory language education

professional and educator of the year. She has been teaching elementary school aged

children for approximately fourteen (14) years in both private and public-school settings,

first as a special education teacher and later as an Orton Gillingham multisensory reading

instructor. In addition, Ms. DeAraujo has trained Ridgewood’s teachers to implement

multisensory reading instruction. She also teaches graduate-level courses in

multisensory reading at Fairleigh Dickinson University. (J-38).

Ms. DeAraujo explained that Orton Gillingham “is an approach to teaching

language, reading, and spelling that’s direct, accumulative, systematic that we use in

special education but also weave into our general education word study curriculum here

in Ridgewood,” and that Orton Gillingham is sometimes also referred to as “structured

literacy, science of reading, [and] multisensory reading.” She further explained that

Ridgewood utilizes a packaged program called SPIRE, which uses the Orton Gillingham

methodology and follows a developmental scope and sequence similar to that used at

Fairleigh Dickinson University. Ms. DeAraujo confirmed that SPIRE is an Orton

Gillingham program that “has a lot of great materials. And, students, you know, find

success with the program.” Given her vast expertise and her presentation during voir

dire, I qualified Ms. DeAraujo as an expert in multisensory reading, structured literacy,

and dyslexia instruction, and thus I so FIND.

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Ms. DeAraujo testified that she is familiar with A.H. but did not work directly with

him. However, since 2017 she has provided training and support to Ridgewood’s

teachers including Jaclyn Fanos, who was A.H.’s multisensory reading teacher before

Petitioners removed him from the District. Ms. DeAraujo has observed Ms. Fanos

delivering multisensory reading instruction to students and has found Ms. Fanos to be

skilled and competent. Ms. DeAraujo testified that the District screens all students in

Kindergarten through 2

grade for signs of being an at-risk reader. (J-11).

As part of A.H.’s 2020 re-evaluation, Ms. DeAraujo visited his reading class at the

Craig School and wrote a summary of her observation in the days following her visit. Ms.

DeAraujo noted that the students were reading sound cards chorally (as a group), rather

than being given “individual opportunities to respond to check for understanding.” She

also noted that, on several occasions when A.H. read a word incorrectly, the Craig School

teacher provided the word for him, rather than prompting him to use his own error

correction strategy (such as “trace and say the sounds” or “use your pencil to code the

word”), which would have been the proper multisensory reading technique: “[W]e want

to teach them strategies so that they can transfer their skills into the rest of their academic

areas. And, by teaching them a strategy that they could use independently, you’re setting

them up for success when they no longer require multi-sensory reading as a remedial set

up.” Similarly, Ms. DeAraujo noted that the Craig School teacher gave the students a

spelling response sheet with pre-planned sound segmentation lines, which is “a scaffold

that I’ve seen used in kindergarten and first grade of general ed classrooms but, generally,

by second grade, teachers are -- are not using the pre-planned lines.” At the time, A.H.

was in 3

grade. (J-17).

During her observation of A.H.’s class at the Craig School, Ms. DeAraujo also

noted that A.H. demonstrated that he knew more sounds and patterns than were

presented in the lesson. For example, he knew that both “o” and “oa” make the “o” sound

and, in Ms. DeAraujo’s experience, “that’s what you want, is you want the student to be

thinking about all the ways they know how to spell that sound because it gives them

choices for when they go to actually spell a word.” However, the Craig School teacher

told A.H. only to practice “o” (not also “oa”), which gave Ms. DeAraujo “the feeling that he

knew more than was being asked of him and that the lesson wasn’t really tapping into all

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the sounds that he knew … .” The material presented to A.H. in the lesson “was very

comfortable … it just appeared like he could do more and was trying to show more of

what he knew throughout the lesson.” Finally, Ms. DeAraujo confirmed that the Craig

School teacher stated at the time that she was not certified in Orton Gillingham, and Ms.

DeAraujo noted that the Craig School teacher’s “teaching lacked a diagnostic approach

that is so essential for multi-sensory instruction. So, that ability to really analyze a

student’s performance each day and, you know, each week, and adjust your instruction

based on the progress of the student. So, it -- it was not -- that was not part of what I -- I

witnessed there.” (J-17).

Next, Ms. DeAraujo discussed her impressions of the report issued by Petitioners’

consultant, Elizabeth Kenny-Foggin. In response to the portion of Ms. Foggin’s report

that critiqued Ms. DeAraujo’s summary of the Craig School observation, Ms. DeAraujo

pointed out that: (1) she did not identify the Craig School teacher by name because she

was never provided with the teacher’s name; and (2) Ms. Foggin did not comment on any

of Ms. DeAraujo’s criticisms of the lesson that she observed at the Craig School. (J-17;

P-32).

In response to the portion of Ms. Foggin’s report that critiqued Ms. DeAraujo’s

multisensory reading class in Ridgewood, Ms. DeAraujo noted several inaccuracies: (1)

Ms. Kenny-Foggin’s included an inaccurate the date of the observation and also

misidentified the multisensory reading teacher as Jaclyn Fanos, when in fact the teacher

was Ms. DeAraujo; (2) Ms. Kenny- Foggin’s report stated that students were not engaged

when other classmates were reading, when in fact Ms. DeAraujo instructs her students

to read their classmates’ word lists silently as each classmate is reading his or her own

list aloud, which “is a common practice that Fairleigh Dickinson and the State of New

Jersey actually have recommended for teaching Orton-Gillingham in a group setting;” (3)

Ms. Kenny-Foggin’s report failed to mention the differentiated word lists provided for each

student’s individual levels; (4) Ms. Kenny-Foggin’s report failed to acknowledge the

various multisensory reading strategies implemented by Ms. DeAraujo throughout the

lesson, including visual instructions, white boards, and prompts to code words; and (5)

Ms. Kenny-Foggin’s report incorrectly stated that Ms. DeAraujo did not mention whether

the students earned points, whereas Ms. DeAraujo recalls giving the students a point in

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the middle of the lesson to “give that positive reinforcement and tell them when they’re

on-task and doing what they need to do.” (P-32).

In response to the portion of Ms. Kenny-Foggin’s report that critiqued Ms. Fanos’s

writing class (which Ms. DeAraujo observed at the same time), Ms. DeAraujo noted

several inaccuracies: First, Ms. Kenny- Foggin’s report failed to acknowledge that Ms.

Fanos began the class by refreshing the students on a prior lesson so that they could

connect it to what they were about to learn, and that Ms. Fanos concluded the class with

a closing reminder of the skill and a tie-in to the bigger assignment that the class was

working on. Second, Kenny-Foggin’s report incorrectly stated that the lesson was fast-

paced and that the expectations appeared to be confusing to the students, whereas Ms.

DeAraujo “felt that the lesson was appropriately paced for the students in the group,” “Ms.

Fanos’s instruction was adjusted to the speed of the students,” and the students “didn’t

appear to be confused”. Third, Kenny-Foggin incorrectly assumed that the concept of

“structure” was new to the students that day, whereas in actuality the concept of

“structure” had been taught “throughout the school year”. Fourth, Ms. Kenny-Foggin

incorrectly stated that Ms. Fanos did not use a multisensory approach, when in reality Ms.

Fanos utilized color-coded visual cues. Fifth. Ms. Kenny-Foggin’s report inaccurately

stated that the students were not engaged in the lesson, whereas Ms. DeAraujo noted

that “the students seemed engaged in participating and Ms. Fanos understands how to

structure her lesson so she has enough opportunity to model and provide guided practice

before students are independent”. Lastly, Ms. DeAuarjo opined that Ms. Kenny-Foggin

failed to acknowledge that Ms. Fanos used modeling strategies to “spur the discussion

and give some students some examples to go off of before they tried on their own, [after

which the students] were able to come up with some synonyms that fit the sentences that

were the examples.” (P-32). Ms. DeAruaujo confirmed, at no time after Ms. Kenny-

Foggin’s observations of the District’s multisensory reading and writing classes did she

request an opportunity to come back and observe the classes in person. As this is

corroborated by the other credible testimony above and the documentary evidence, and

Ms. DeAraujo was a knowledgeable and detailed witness, I FIND it as FACT that Ms.

Kenny-Foggin did not observe the District’s proposed classes in person even though they

were available.

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Ms. DeAraujo continued that the District uses a multisensory writing program

called “Project Read–Framing Your Thoughts.” All of the District’s elementary school

teachers, both special education and general education, have at least thirty (30) hours of

Orton Gillingham training through the Institute for Multi-Sensory Education and then Ms.

DeAraujo works with them in the District to implement the strategies in their classrooms.

Next, Ms. DeAraujo reviewed A.H.’s Craig School Phonics Evaluations and noted that

some skills marked as “needs reinforcement” or “achieved with support” in 2019 were

then marked as “not introduced” in 2020, which struck Ms. DeAraujo as odd because

skills that had not been fully achieved should continue to be worked on to achieve

mastery. As this was largely undisputed and corroborated by testimonial and

documentary evidence, I FIND it as FACT in this matter. (P-13; P-24).

Again, while classification is not at issue in this case, in Ms. DeAraujo’s

professional experience, attention and distractibility issues, trouble with eye contact,

tactile defensiveness, and perseverative behaviors such as hand flapping are not signs

of dyslexia.

Next, Ms. DeAraujo also attended the February 2020 meeting at which the District

proposed that A.H. return to the District in September 2020 in a program comprised of,

pull-out replacement reading (50 minutes), writing (50 minutes), math (50 minutes), and

multisensory reading/word study (45 minutes) each day. The proposed IEP also noted

that there would be a multisensory reading consultation among school personnel “to

support that student’s transfer of skills to their other academic areas.” (J-21). Based on

her professional experience, Ms. DeAraujo testified that the 2020 proposed IEP offered

A.H. an opportunity to make meaningful progress in the District’s program. The proposed

IEP “sets A.H. up to have the supports he needs for multi-sensory reading as far as a

pull-out replacement class. And, additionally, even though our staff are trained in how to

support a student who requires multi-sensory reading, the consultation really takes it a

step further and just really makes sure that we’re continuing to support him as he transfers

his skills into his other academic areas. So I -- I do believe that this IEP was designed to

meet his needs and help him make growth.” (J-21).

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On cross-examination, Ms. DeAraujo confirmed that she shared her Craig School

observation with Petitioners at the February 2020 IEP meeting, and that her report admits

that A.H. was engaged in the lesson that she observed. Ms. DeAraujo is not aware of

whether or not A.H. has a dyslexia diagnosis, but she acknowledged that students with

dyslexia can become fatigued due to the taxing nature of reading, which could impact

their ability to pay attention.

During the 2020-2021 school year, Ms. DeAraujo was teaching four (4) small

groups of students (approximately fifteen (15) students total) and was consulting for about

a third of her total time as a full-time employee, for approximately ten (10) students total.

On re-direct, Ms. DeAraujo stated that she does not have concerns about her ability to

devote enough time to her duties teaching, consulting, or training, because her

supervisors and director help her manage and prioritize.

Ms. DeAraujo recalled that, at the February 2020 IEP meeting, Petitioners

expressed concerns regarding A.H.’s transition back to the public school, and there was

a discussion about supports that the District could provide to help with the transition. (J-

21). She testified that it was explained that if Petitioners had returned A.H. to the District

in September 2020, he would have been assessed again and the IEP, initially drafted in

February 2020, would have been adjusted as necessary: “we had gathered information,

through the re-eval, to create this IEP [and] any adjustments that would have needed to

be made as far as his reading level or any goals that would need to be adjusted, would

have been adjusted with an updated -- with updated assessments when he returned.

That’s common practice.” Ms. DeAraujo stated that, at the time the IEP was proposed in

February 2020, A.H.’s most significant area of disability was applying strategies

independently. He also needed support in oral language and continuing to learn sound

patterns to move towards mastery.

Ms. DeAraujo testified that the multisensory reading consultation in the 2020

proposed IEP did not require a statement of frequency or duration (although it does say

that it would be monthly) because it was a support for school personnel and not a direct

service to the student. (J-21). Ms. DeAraujo acknowledged candidly that there are times

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when she and another observer may not necessarily highlight the same items following

an observation.

Ms. DeAraujo confirmed that the people listed in the 2020 proposed IEP as having

provided information regarding A.H.’s levels of performance (e.g., Mrs. Miller, J. Schilling,

Mrs. DellaFave, Mrs. Pompilio, Mr. Furlong, Ms. Kaplan) were Craig School personnel.

(J-21).

Finally, Ms. DeAraujo confirmed that part of the multisensory reading consultation

among school personnel involves sharing of information with parents via a form on which

the parents, case manager, teachers, and other members of the academic team can

communicate suggestions, questions, and answers.

Ms. DeAraujo testified directly and is a highly-qualified expert in the field of mutli-

sensory learning and Orton-Gillingham instruction and is also fully familiar with the District

as she oversees their training and programming. Ms. DeAraujo was very credible as she

admitted the good in the programs she reviewed or observed at Craig. In addition, she

was able to aptly explain what the goals are and any criticisms she saw in either program.

She emphasized that coding and syllabication, which is a critical instruction application,

was not being used at the Craig School. She explained this in a straightforward and

knowledgeable way. She admitted that when speaking to a teacher at Craig that even

though the teacher was not Orton-Gillingham trained, she felt the teacher made an effort

to engage the students but it lacked a diagrammatic approach which is so important for

multisensory reading. She emphasized that this needs to be adjusted based upon a

student’s progress. She candidly concluded that the material was not at A.H.’s level at

The Craig School. In her expert opinion she felt he could do more and was trying to show

his teacher that he could. In short, Ms. DeAraujo was an excellent witness who did not

exaggerate, pointed out nuances, was strong, forthright and as such I FIND she was

entirely credible and thus I gave her testimony a lot of weight and her testimony regarding

her observations and corresponding corroborating documentary evidence as FACT in this

matter. Again, as her expert opinion is weighed against the petitioners’ experts that will

be discussed in the Expert Testimony section below.

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Petitioner’s Testimony:

Elizabeth Kenny-Foggin, LDTC-Petitioner’s Expert

Ms. Kenny-Foggin testified she started her training in special education and

received her bachelor’s degree in 1983. She continued to earn a master’s degree in

special education and another master’s degree in supervision and administration.

Eventually she became an Orton-Gillingham trained teacher and trainer through Fairleigh

Dickinson University. She testified that the Orton-Gillingham therapist level was the

highest level offered by Fairleigh Dickinson University. Ms. Kenny-Foggin testified that

she has been a special education teacher since 1983, retiring with thirty (30) years of

experience as a special education teacher. She testified that she taught every grade level

within those thirty (30) years as a special education teacher. Ms. Kenny-Foggin testified

that she currently works as an adjunct faculty member at Fairleigh Dickinson University

and trains teachers in Orton-Gillingham, as well as works with students privately and

performs evaluations for parents. (J-32).

Ms. Kenny-Foggin also earned a master’s in administration in 2000 and is currently

pursuing an educational doctorate focusing on higher education. During her teaching

career, she worked in a variety of roles in public school, including but not limited to a

reading/writing teacher, and in-class support teacher in science and social studies. Most

of the time she worked in small groups at the high school level and small group

mainstream classes at the elementary level. Later in her career, Ms. Kenny-Foggin

oversaw a dyslexia committee in the Holmdel district and created an entire method of

working with the students and investigated the best standardized testing. She helped

create writing samples for students with dyslexia. She testified that she has experience

being on a child study team and she has been involved in developing hundreds of IEPs

for children with reading issues. (J-32).

Ms. Kenny-Foggin was proffered as an expert in multi-sensory reading, Orton-

Gillingham and the development of goals and objectives for students with reading issues

and specifically dyslexia. Ms. Kenny-Foggin testified that she first used multi-sensory

reading when she first started teaching at Seaside Heights and started using Orton-

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Gillingham at the Tinton Falls Middle School in Teaneck beginning in 1997. Due to her

extensive education and work experience I qualified her as an expert in Multi-Sensory

Reading, Orton-Gillingham and Development of goals and objectives for students with

reading issues in Dyslexia, and thus I so FIND.

She became involved in the case when M.H. and J.H contacted her to perform an

observation based on the proposed IEP and recent evaluations from the school, as well

as a report from Dr. Fiorile. She testified that she did not make any independent findings

on whether Ridgewood Schools provided A.H. an appropriate education prior to February

of 2020. Ms. Kenny-Foggin testified that the report in this case took seven (7) months to

prepare (from January 2021 to August 2021) because she contracted COVID-19 and was

in the hospital. As this is undisputed and I granted adjournments for this reason along

the way, I FIND the delay in her report was caused due to her illness.

Ms. Kenny-Foggin testified that the important things she looked for in the

psychological evaluation were the scores that were collected, such as the processing

speed index at 114, the visual spatial index at 89, and working memory at 76. (R-18).

Although she has not done any psychological testing, she is familiar with the tests in her

role as a case manager as well as a special education teacher and is able to interpret

how these scores would impact a student. She opined that Working memory is critical

for a student because it helps them hold information if there is no visual support.

Ms. Kenny-Foggin found that A.H.’s reading score of an 85 was below average

and it was an area of weakness for A.H. She also believed that the academic skills

together, having a score of an 87, showed that A.H. was struggling. She testified that the

receptive scores from the speech language evaluation was a 78, which she believed was

exceptionally low which she opined meant that A.H. was deficient in those areas. (R-20).

Ms. Kenny-Foggin testified in response to Ms. DeAraujo (who disagreed with her

in-class observations) that two (2) people may observe different things, and she bases

her observations on the reports. She testified that she takes notes based on the

introduction and elements of the lesson, as well as the support systems in place to help

OAL DKT. NO. EDS 03539-20

A.H. be as independent as possible, knowing he has working memory and fluid reasoning

issues.

Ms. Kenny-Foggin confirmed that the word list she received in an email from Ms.

Acosta was different from the word list that the students were working on when she

observed the classroom. (J-27). She testified that the word list was a component of a

structured language literacy lesson, but she believed that it was being used ineffectively.

She testified that as one student read the words, the other students were just waiting and

were not engaged. This confirmed for her that the class was not individualized and thus

not the right environment for multi-sensory learning. Ms. Kenny-Foggin testified that the

visual from the writing class with Ms. Fanos (the location of the second observation) was

not an appropriate visual because there were too many words and no visual support with

the words.

Ms. Kenny-Foggin continued that the statement of what special education services

or related services that A.H. would be receiving in District would not address A.H.’s needs

because the classes are pull-out classes for multi-sensory reading, writing, and math. (J-

21). She opined that collaborating with multiple teachers at different points would disrupt

the flow of the class. In short, she recommends a ninety (90) minute reading lesson in a

multi-sensory structured language literacy program.

When A.H. was at the Craig School, Ms. Kenny-Foggin testified that they were

working on sentences and using the Victoria Green Bare Bones program, which is a

writing program. They used hand motions, and the teacher kept them engaged. Ms.

Kenny-Foggin observed that A.H. was able to stay engaged even when he came back

from the bathroom. The teacher helped the students remain focused even when they

were itching to move by getting the students to do hand motions. She testified that A.H.

was very motivated and actively engaged, by interacting with his classmates and using

his time effectively. She testified that the peer group was acceptable, as it was with kids

of his age and peer level. She noted that the class in the Craig School followed the multi-

sensory requirements that she laid out. She testified that the observation at the Craig

School was online, but that all the students were in person, while for the Ridgewood

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school, everyone was online. She testified that it is possible to teach multi-sensory

reading online through notebooks and a camera.

Ms. Kenny-Foggin did have an opportunity to review the goals set forth for A.H. in

the IEP, but she did not think they were appropriate as she knew him in February of 2020.

(R-21 & J-21). She testified that the writing goals were not clear enough, and do not have

a specific objective measure. She testified that when she wrote IEP’s, it was a

requirement of hers to be objective and measurable. She emphasized, in her opinion, that

the multisensory reading goals were inappropriate because the goal of 75% - 80% is too

low as it was her opinion that typically goals should be set at 92% or higher. With A.H.

only hitting a goal of 75% - 80% accuracy he would continue to struggle in reading and

not be proficient in the subject. The proficiency goals of 92% or higher is part of the

training that she received through Fairleigh Dickinson which she noted is based on

extensive research. (R-21 & J-21).

Ms. Kenny-Foggin testified that even if A.H. had mastered the goals as they are

written in the IEP, he would not have made meaningful progress because he needs

extremely specific measurable goals and objectives, like learning to incorporate the

strategies that he is using in the classroom when he must do independent work.

Ms. Kenny-Foggin added that she worked with kids who had nervousness, anxiety,

and uncertainty, and she worked on teams where students received counseling. She did

not believe A.H. expressed nervousness, anxiety, or uncertainty while at the Craig

School.

Ms. Kenny-Foggin testified that after having seen A.H. and observing him in his

class at the Craig School, her opinion was that he was incredibly happy and well adjusted.

She testified that he was struggling before he went to The Craig School. She posited that

since he was getting the appropriate services at the Craig School, he had a higher

motivation to participate and engage in the material. She emphasized her opinion that

when a student is making progress out-of-district, it is hard to re-transition them into the

district and expect them to keep making progress. She testified the school must be

prepared before the child returns, and the child must be emotionally ready to return.

OAL DKT. NO. EDS 03539-20

Ms. Kenny-Foggin stated that she never participated in an IEP meeting where the

parent did not have a draft of the IEP in front of them as they are supposed to have a

draft so they can relay their own input. She also testified that a document that contained

information about the observation at The Craig School was clear and accurate. She

continued that the lesson, as reported by Ms. DeAraujo, met the requirements she was

looking for in a structured language literacy reading class. (J-17)

On cross examination, Ms. Kenny-Foggin testified that she was not asked to

perform an evaluation of A.H. during the Independent Educational Review period because

he had just recently been evaluated and the parents only asked her to perform a review

of his records. She candidly admitted that she never instructed or tutored A.H. nor ever

met him other than in the context of observing him in a class. She testified that she did

not indicate who diagnosed A.H. with dyslexia, however she stated she gathered all the

information from reports that were provided to her. (J-32). As this is largely undisputed

and Ms. Kenny-Foggin testified professionally and honestly, I FIND it as FACT.

Ms. Kenny-Foggin further testified that she wrote on the first page of her report the

parents declining the February 2020 IEP and the reasons they did so based on what the

parents told her. She admitted did not receive anything in writing from the parents where

they communicated to the district the concerns about the 2020 IEP’s goals and objectives

or modifications. She similarly conceded that she never received in writing any discussion

on assistive technology nor an extended school year. As these facts are largely

undisputed and Ms. Kenny-Foggin testified candidly, I so FIND.

Ms. Kenny-Foggin confirmed that she did not attend the February 2020 IEP

meeting with the district. She testified that she was contacted around mid-December of

2020 by the parents. She revealed on cross examination that she was not aware that

she was retained ten (10) months after the February 2020 IEP was proposed and that

she was also not aware that they had already filed due process against the district. She

testified that she observed the district in January 2021, and observed the Craig school in

March 2021. She confirmed the report was finished in August 2021 due to personal

issues COVID related. She testified that she sent the finished report to the parents and

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not the attorney. She testified that it would not concern her if the district did not receive

the report until several months after she provided it to the parents because it is the

parents’ prerogative. Again, as these facts are largely undisputed, corroborated by

documentation already in evidence and Ms. Kenny-Foggin testified professionally and

credibly, I FIND it as FACT in this matter.

Upon further cross examination, Ms. Kenny-Foggin conceded that IEP meetings

are supposed to be collaborative, and that parents and members of the district team

amend the proposed program together. She testified that previous districts that she has

worked with have considered parent requests and suggestions and made modifications

to IEPs based on the parent’s request and suggestions.

Ms. Kenny-Foggin explained that she decided to exclude Ms. DeAraujo’s criticisms

of what she saw at the Craig School on page four (4) of her report (J-32) because she

believed her comments were contradictory. For example, she testified that Ms. DeAraujo

would state that the program at the Craig School was excellent, but then she would also

state that the program was inappropriate for A.H.’s skill level and age.

Ms. Kenny-Foggin testified that during her observation she observed multi-sensory

correction strategies used at the Craig School with teacher-driven immediate corrective

feedback which she feels is acceptable in a group session. (J-32).

Ms. Kenny-Foggin admitted that she is not a psychologist and has never

administered the Wechsler Intelligence Scale for Children (The WISC). She identified J-

18 as Dr. Killby’s psychological evaluation from 2020. (J-18). She testified that the

processing speed score was so much higher than A.H.’s other scores on Dr. Killby’s

psychological evaluation report and agreed, it could contribute to an inflation of his score,

even if Dr. Killby did not specifically write that the processing speed score artificially

inflated his full-scale IQ. She testified that she was familiar with the general ability index

or GAI portion of the psychological assessment, but she is not aware that the GAI puts

less emphasis on processing speed.

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Ms. Kenny-Foggin testified earlier that one of her criticisms of Ms. Devaney’s

educational evaluation was that the expressive language subtests were not given. She

was aware at that time that A.H. also had a separate speech language evaluation that

included expressive language tests, but that there were times when she worked on a child

study team where they would do both evaluations with expressive language subtests.

She did admit that there are situations based on the circumstances or child involved

where you do not want to overburden a child with testing.

Ms. Kenny-Foggin noted the distinction between low/average and below average

on the educational assessments. She testified that she had administered the Woodcock

Johnson for Test of Achievement many times, and so she was familiar with the score

ranges and what they are classified as, such as average vs. low average. She admitted

that Ms. Devaney’s classifications of the scores through multiple tests are accurate. (J-

19).

Ms. Kenny-Foggin testified regarding her observation Ms. Fanos’ writing class that

even though she was not sure if they were familiar with the concept of “structure” (nor

was she given any information that indicated that the students had/had not discussed

structure before the lesson), she observed that the children did not seem to have a grasp

of “structure” according to what she was visually seeing and their reactions. Next, she

testified that one of her criticisms in the IEP for the multi-sensory reading consultation

was that it appears in the “supports for school personnel” section rather than in the

“related services” section for the student. She testified again that she has worked as a

case manager on child study teams dozens of times, and that she has written IEPs before,

as such she has an understanding that a consultation service for staff is different from a

related service provided directly to a student. (R-21 & J-21).

Ms. Kenny-Foggin conceded that she was not familiar with the Scholastic Reading

Inventory but had heard of the Slosson Test of Oral Reading, the Test of Written Spellings,

and the TOWRE. For all three (3) of these tests, she testified that if a student had either

stagnant or decreasing scores from year to year, then the student is not hitting the mark,

and something needs to change.

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Ms. Kenny-Foggin continued that homework is important in a multi-sensory

reading program, and that repetition and review through homework is critical, and it

applies across all subject areas, and that it is appropriate to utilize certain modifications

in the context of a structured language literacy program, to include prompting and cueing

by teachers, but that it should be individualized. She also added that the goal is to fade

and remove those prompts and cues, so the student becomes more independent. She

testified that a student who did not require prompting and cueing for a certain period, and

then required prompting and cueing could be cause for concern, but that adding

modifications is not necessarily a terrible thing.

On cross, Ms. Kenny-Foggin testified and confirmed that earlier, she said it was

preferable in a structured language literacy program to have one (1) teacher across all

content areas and that she is not sure if the Craig School has that for A.H., but since all

the teachers at the Craig School are trained to follow the same strategies and writing

developments, they are different, and that preference does not apply to them. She

admitted that Ridgewood told her that the teachers in the program offered in the 2020 IEP

were all trained in multi-sensory structured language literacy.

After looking through the report card and the goals and objectives progress reports

from the Craig School, Ms. Kenny-Foggin admitted that she had a similar concern with

the goals and objectives of the Craig School as with the Ridgewood school, because

although the goals were at a higher percentage, 80-85% was still not high enough. She

agreed that she did not say that one of her criticisms of the district’s goals and objectives

was that they did not include scope and sequence.

On re-direct, Ms. Kenny-Foggin opined that the multi-sensory reading group in the

IEP, a once-a-month consultation, was not enough to address A.H.'s needs because of

his phonetic disorder, expressive receptive challenges, and dyslexia. She testified that

these factors indicated to her that a child was struggling and that consultations would not

be enough. She also testified that standardized tests are not the only way to measure

progress for A.H. Finally, she testified that as an LDTC, she writes every one of her

student’s psychological reports and educational evaluations and reads the entire reports

of speech evaluations, OT, PT, and other evaluations. (R-21 & J-21).

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Ms. Kenny-Foggin appeared to struggle to answer questions in a brief manner. It

was clear she was doing her best to be truthful, in fact, admitting that she would like to

see the percentage raised on the Craig School goals shows this. Ms. Kenny-Foggin was

able to articulate A.H.’s needs and to articulate why she believed the lesson at Craig, as

documented by Ms. DeAraujo, were in fact appropriate. Lastly, she emphasized that the

parents did not rely on Ms. Kenny-Foggin’s report to make their decision to keep A.H. at

the Craig School rather she confirmed their belief, that what was being offered at the

District was inappropriate. As this is largely undisputed and Ms. Kenny-Foggin testified

professionally and consistent with the other witness testimony in this matter, I FIND the

above as FACT.

Overall, I found Ms. Kenny-Foggin to be forthcoming in what she recalled. My

notes indicate throughout that she was “all over the place” and confused the issue for me

at times. There was no indication of where we took notes for her report. Again, I believe

she was being truthful, she was just not a strong witness in this particular case. For

example, when describing her observation of the district, she did not give much detail

about how the other students were “not engaged” as was noted in her report. At one

point, I wondered to myself if she even knew A.H. If she did not take notes

contemporaneous with the District’s lessons, there is little way she would have been able

to author it so late due to her struggle with COVID. This undoubtedly lessened the

strength of her testimony. Again, I want to reemphasize that she was VERY HONEST,

but it bears mentioning that after her lengthy testimony and detailed report, I could not

glean what she opined the IEP is insufficient. Many times, I noted that she was a “weak

witness” and found it strange that she found the multisensory reading goals should be

higher than 92% as she stated “this is what a skilled Orton Gillingham program would

provide.” But she said he cannot master higher than 80% which made little sense to me.

Please remember that the goals and objectives were both not at 92% in District or at The

Craig School. As such, I FIND for the reasons stated here that this hurt her credibility.

Further, I FIND that her testimony regarding goals and objectives for multi-syllabic

words at the District that were 75% and decoding 80% and encoding for 70% were simply

not appropriate and that they amounted in her opinion to “zero objective and measurable

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goals.” I noted that thus hurt her credibility. At one point, I even noted that her opinion

appeared to be a net opinion, as it was merely about the need not to take him out of Craig

based more on the opinions of the parents and her observations of A.H. at Craig, where

he was well adjusted with classmates and teachers and was highly motivated. As I

believed Ms. Kenny-Foggins observations at Craig to be truthful, I have no doubt that he

was happy, and thus I so FIND as it is in keeping with J.H.’s opinion and the video of A.H.

that I had the benefit of viewing. What I do doubt is why Ms. Kenny-Foggin had a problem

with the IEP, other than the fear of any change to switch him out of Craig because he was

thriving and feeling good about himself. She did admit that in District all teachers must

have the IMSE training but gave a weak excuse about why that would not amount to

FAPE of what deficiency was lurking in the IEP. In short, Ms. Kenny-Foggin did her best

given the lapse of time between the IEP meeting, when she was retained and then her

long battle with COVID, but she had no real recollection of this case. For example, she

disagreed with Ms. DeArujo’s critique of Craig, but she did not concede even the smallest

of facts even though both the District’s witnesses (DeArujo and Ms. Acosta took

contemporaneous notes of Craig’s classes. It also hurt her credibility and caused delay

in the case at one point when Ms. Weinstein saw that Ms. Kenny-Foggin was referring to

her report which had been highlighted and tabbed in preparation for the hearing. The

District accordingly made a request that those notes be produced ASAP for anything that

had a notation on it. Again, my thoughts throughout her testimony were “does she even

know A.H.”, “did she test A.H.”, and what was she basing these opinions on. As such, I

FIND I could not give her testimony as much weight as the District’s experts as will be

explored below.

On cross, it was confirmed that she did not evaluate A.H., as the parents merely

requested a review of his records. She felt her testing would have been redundant. She

never even met A.H. She conceded that she does not know offhand who diagnosed him

with dyslexia and there is no reference to it in her report. When asked on cross if that

notation would be important, she evaded the question. I FIND that this hurt her credibility.

She also got caught up on cross when noting that in her report, the reasons stated for the

parents’ declining the IEP were clearly Kenny-Foggin’s not the parents. Kenny-Foggin

admitted there was nothing in writing from the parents to the District regarding the goals

or objectives or modifications, also nothing regarding assistive technology, also nothing

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regarding ESY. I noted this was a case crusher for the parents. There was no notation

about what was lacking in this IEP other than it was not Craig. Again, she did not attend

the 2020 IEP, and she recalls after much questioning that the parents retained her 10

months after the IEP in question. She noted that as many experts are, she was being

paid by the parents and when she was able to get the report to the parents in August of

2021 after being retained much earlier, she sent it to parents upon completion. She does

not know when the district got the report, but she noted that she was not concerned that

the parents did not send her report to the District for about two (2) months after she issued

it. (which again was very late due to her personal health issues). Again, I FIND Ms.

Kenny-Foggin was honest and straightforward and did her very best given the long breaks

in this case due to her being retained so far after the IEP meeting and her long illness

with COVID that her honesty could not overcome the major weaknesses in her testimony.

Dr. Kara Loftin Ph.D Executive Director of the Craig School and Expert for

Peitioner:

Dr. Loftin is currently the chief executive officer (CEO) of the Craig School. (P-48).

She has a bachelor’s degree in music and a master’s degree in business administration

and a master’s degree in education and special education with a focus on dyslexia, and

a PhD in special education. Dr. Loftin has also finished her certificate for Level II of the

Wilson Reading system. Dr. Loftin testified that her PhD followed a traditional track for

special education where it contained a lot of theory of exceptionalities, ethics in

exceptionalities, and special education law. She noted that her dissertation focused on

strength-based assessments while looking at the rate or variance for students with

exceptionalities. Dr. Loftin received her PhD from the University of Northern Colorado. I

noted during her lengthy voir dire and that she was very professional, on point, extremely

smart and knowledgeable. After some discussion as to proffer, I qualified her as a

learning-disabled teacher, a teacher for students with dyslexia, attention issues and

emotional issues related to learning disabilities, and I so FIND.

Dr. Loftin testified that she worked at the Wasatch Academy for twenty-one (21)

years. She was a parent liaison for the school where she ran the learning support

program for students with exceptionalities. She worked with teenagers who were

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struggling to learn in the classroom and helped make a program to work with students

with learning disabilities using the Orton Gillingham approach for all the students in the

program. (P-48).

After the Wasatch Academy, Dr. Loftin started at the Craig School on July 1, 2020,

where she currently works as the CEO. She deals with budgeting, hiring, firing, retention,

teacher training, academic programs, and policies. Dr. Loftin states she also works very

closely with a board of trustees because the school is a nonprofit/independent school.

Dr. Loftin is heavily involved in the teacher training that happens during a weeklong

in-service training as well as their monthly half-day in-service training. Most of the training

deals with application-based approaches, giving the teachers hands-on experience to

bring the best practices into the classroom.

Dr. Loftin testified that she has a whole team of directors that review the IEP’s and

take part in the actual meetings with the students and parents. However, she reviews all

the student’s IEP’s when they start at the Craig School, as well as reading any updated

IEP’s because she believes that an extra set of eyes are always useful and as a CEO of

the school, and that it is important to be part of the conversations to make sure that

everything is in place for each student. Dr. Loftin testified that she oversees the directors

involved in planning and programming for each student of Craig. Dr. Loftin testified that

she does not draft the programs for the students.

Dr. Loftin described the Craig School as an academic program that has been

designed for students with language-based learning disabilities, in particular dyslexia. All

students have a 90-minute Orton Gillingham block every morning five (5) days a week

which is followed by another hour of written expression through the Orton Gillingham

approach. Speech, language, occupational therapy, multisensory math, science, and

social studies are also a part of the program. Dr. Loftin testified they also have specials

including art, music, and gym. As these facts above are largely uncontested and Dr.

Loftin was a knowledgeable and credible witness, I FIND these as FACTS in this matter.

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Dr. Loftin was introduced to document P-13 and testified that she recognizes the

document to be A.H. levels of academic achievement at the time he joined the Craig

School in 2019 as a second grader. (P-13). She confirmed that assessment notes

indicate that A.H. is struggling with onset rhyme pattern, in particular closed-syllable

types. Dr. Loftin opined that it shows that A.H. is really struggling in phonics and

phonemic awareness, telling her he is not fluent in his reading and if he is not fluent in his

reading, then he does not understand what he is reading. After reading this assessment,

Dr. Loftin testified that she would profile A.H. as a student who had learning disabilities.

She also noted that the elements of his results are common for students who have

dyslexia.

Dr. Loftin testified that her review of reports for A.H. revealed that he was given a

fluency test at the beginning of third grade at the Craig School. (P-49). The results

showed that comprehension was still a skill that needed to be developed, as well as

spelling. Based on these results, Dr. Loftin noted that this tells her that the phonological

processing and phonemic awareness is not up to par with his fellow classmates. Dr.

Loftin testified A.H. was in the 16th percentile of phonemic decoding on the TOWRE test,

which is an exceptionally low average. Dr. Loftin testified that A.H. was tested in many

other areas including a group mathematics assessment where he scored in the average

range for his grade level, but his concepts and communication was an area of struggle

and weakness for A.H.

Dr. Loftin testified that she found in A.H.’s speech and language evaluation (J-20)

that A.H. struggled with multistep auditory directions, ability to assemble words into

multiple sentences, ability to solve word problems presented orally, ability to answer

questions about short paragraphs read aloud to him, word retrieval deficits.

During A.H.’s fourth grade year at Craig, she observed him in his reading class

which was designed using the Orton-Gillingham approach which is multisensory. Dr.

Loftin testified that the reading goes from simple to complex, cumulative, diagnostic and

relies on the five (5) elements of the national reading panel which includes phonics,

phonemic awareness, vocabulary, comprehension, and fluency. Dr. Loftin testified that

there were four (4) kids in the class, including A.H.

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Dr. Loftin opined that for A.H. to succeed and improve in his writing, he needed to

be a part of a writing program that gave him explicit instructions and lots of repetition. He

needed reference sheets, graphic organizers, checklists, etc. Dr. Loftin continued that on

top of his daily 90-minute classes of reading fifty (50) minutes of writing with an Orton

Gillingham approach, A.H. also received an additional two half-hour segments per week

for phonics and phonemic awareness because “he really needed it”.

Dr. Loftin testified that not only does A.H. receive Orton Gillingham instruction in

reading, writing, and math at Craig, but he also receives Orton Gillingham instruction in

science and social studies as well because it helps him work out complex problems that

are difficult for him to understand by giving him step-by-step instructions. Based upon a

review of his records and her 4

grade observation of A.H. at Craig, Dr. Loftin opined that

it would be concerning to her if A.H. were in a general education social studies and

science class because he needs the repetition of details since he is still working on his

phonics and phonemic awareness as well as his fluency.

She emphasized that the Craig School has a point system built into the learning

program to help students be more engaged in their studies called the badger point

system, which is based on positive reinforcement and a clear expectation that the

students act a certain way in the classroom. She noted that every teacher follows the

system so that at the end of each class, the teacher will check off each student's point

sheet and what they accomplished. The students can then take these points and

exchange them for badger cards which eventually become prizes or access to special

clubs, for example the gardening club. As Dr. Loftin testified directly on these points and

it is largely undisputed as well as corroborated by mom, J.H. later on, I FIND that the

badger system was an incentive for A.H. as well as the facts outlined about the program

itself.

Dr. Loftin testified that A.H. responds beautifully to the badger point system. She

states that it keeps him motivated especially when he is dealing with exceedingly difficult

subjects. As a result, he is present in his learning because he likes to earn the points to

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receive the awards, and thus the point system is a huge motivating factor to help him with

his reading and writing especially since he struggles so much in this area.

Dr. Loftin testified that A.H. was involved in the Craig School Summer program

during the summer of 2021 which really focused on reinforcing skills and competencies

met during the school year and to prevent learning loss, which typically occurs during the

summer. Dr. Loftin noted that A.H. had Orton-Gillingham language arts and math as well

as computer skills on his schedule for that summer. (P-30).

To be a teacher at the Craig School, one must have a bachelor’s degree in

education, a teacher’s license, and they would prefer a person that focused on special

education. However, Dr. Loftin testified candidly that it depends on the subject in which

they are teaching. She noted that they look for teachers that are certified in Orton-

Gillingham. Dr. Loftin admitted that when A.H. was in third grade at the Craig School, his

teacher, Ms. Imperatore, who had been at the Craig School since 1986, was not fully

certified under Orton Gillingham until halfway through A.H.’s third grade year. However,

she noted that Ms. Imperatore knew Orton Gillingham based on the intense training she

received at Craig School and has been using the approach since she started working at

the Craig School in 1986, she just failed to receive the actual certificate until A.H.’s third

grade year. Dr. Loftin testified that Ms. Feldman, A.H. 's fourth grade teacher was a fully

certified Orton Gillingham teacher. As Dr. Loftin testified forthrightly and professionally,

and these facts are largely undisputed, I FIND them as FACT about Craig’s programming

and requirements and teacher’s qualifications as outlined above.

Dr. Loftin was asked about A.H. emotional well-being at the Craig School and Dr.

Loftin testified that they were not concerned with his emotional well-being because he

had a good relationship with his peers. Dr. Loftin testified he never once presented with

nervousness, stress, or uncertainty in any social setting. Dr. Loftin added that she would

not recommend A.H. for counseling because in her opinion there is no use for it, and it is

a waste of time that could be better suited for more Orton Gillingham programming.

Dr. Loftin opined that the IEP in question would not benefit A.H. (R-21). Dr. Loftin

noted that after looking at A.H.’s overall scores and progress at the start of fourth grade

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it would have been recommended that they ramp up the time of intervention and intensity,

not decrease the intervention because the more support the better response A.H. would

have.

Dr. Loftin ultimately opined that A.H. has made meaningful educational progress

at the Craig School, and she believes it would be in the best interest of A.H. to continue

at the Craig School to receive the services that are best fit for him.

On cross examination, Dr. Loftin testified that the Craig School has not been

approved by the New Jersey Department of Education as a school for children with

disabilities. She explained that the reason they have not applied for approval is because

their model is an independent school, which gives them more flexibility in being able to

add in support and services without it being approved by the state first. However, Dr.

Loftin testified that the Craig School is accredited by the National Association of

Independent Schools, the New Jersey Association of Independent Schools and the

Middle State College and educational services. As there was nothing to dispute this and

Dr. Loftin was a qualified and professional witness, I FIND it as FACT.

Dr. Loftin testified that A.H. has a formal diagnosis of dyslexia. Based on her

history and studies with the multisensory reading instruction the appropriate error-

correction strategy for dyslexia is to use a multisensory instructional approach. For

example, if a student decodes a new syllable incorrectly, Dr. Loftin testified she would

have the student tap out the syllable as they were saying it aloud. Dr. Loftin noted the

goal is get the child to be able to correct themselves in the future and to give them

independent reading skills if they indeed made a mistake. Over time the student should

be fading out the skills they used to develop independent reading because they will not

need them anymore.

It is Craig School’s policy to report on progress each marking period in all subject

areas. After reviewing P-24, Dr. Loftin testified that this progress report from Craig

focused on A.H.’s reading. The left column shows all elements in which a student needs

to be satisfactory in reading. Dr. Loftin testified that the Craig School has a version of a

public-school district’s “IEP”, which she described as a plan that includes all information

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attained from assessments the student has taken. This plan gives the teachers

information on how to instruct each student. This plan also shows the student’s

benchmark and what their goals and objectives are for that year. Again, as Dr. Loftin

testified professionally and expertly in her role as CEO of Craig, I FIND the progress

report procedure as FACT. (P13, P14, P 15, P23, P24, P25 P26).

A.H. scored in the 42nd percentile in February of 2019 on the Scholastic Reading

Inventory test, while in the fall of 2021, A.H. scored in the 35th percentile. Dr. Loftin

opined that this decrease in percentile did not concern her because A.H.’s actual raw

score increased. In the Slosson Test of Oral Reading, A.H. was in the 55th percentile in

February of 2019, whereas in Spring of 2019, A.H. was in the 67th percentile. In

September 2020, A.H.’s percentile decreased to the 11th percentile. Dr. Loftin stated

again that this did not concern her because every year when the students take the

assessment it is based on the specific grade, they are in. Here, A.H. was just starting a

new grade with new skills and topics, so his percentile was lower than the previous year

where his score increased as he learned more.

Dr. Loftin was then given the Test of Written Spelling (TWS). Here, A.H. scored a

77, in September 2019, which is in the sixth percentile for his age. (P-15). In September

2020, A.H. took the same test again where he scored a 77, the same number he scored

the previous year. Dr. Loftin admitted that this was concerning to her, and she hoped to

have seen more progress from A.H. A.H. also took the TOWRE-2 and TOWRE-4 exam.

Here, A.H. scored a scaled score of 99 in September 2019, putting him in the 47th

percentile among his peers. In September 2020, A.H. scored a scaled score of 85,

landing him in the 16th percentile. Dr. Loftin testified that this drop in scaled score and

percentile also concerned her. The TOWRE exam results also concerned Dr. Loftin. A.H.

scored a scaled score of 92 and was in the 30th percentile and then a year later he scored

an 81 and was in the 10th percentile. The fluency from the fall of 2020 was 91% accuracy,

leaving A.H. in the 55th percentile. In the fall of 2021, A.H. scored 100% accuracy, putting

A.H. in the 50th percentile. Dr. Loftin said this was not concerning, because it was more

stable.

OAL DKT. NO. EDS 03539-20

Dr. Loftin never worked directly with A.H. as a teacher, but she testified she

collaborated with him as a supervisor at student events and activities that took place in

the classroom. She has previously observed A.H. in the classroom, however there was

no official report based on her observations. As this is not in dispute and corroborated by

testimonial and documentary evidence, I FIND it as Fact.

While looking at A.H.’s Craig School report card, it was noted that homework

assignments were “not applicable” or “NA” in science and social studies. Dr. Loftin

testified that she is unsure of what that really means and would need clarification from the

teacher. Dr. Loftin testified that there are some modifications that are added to A.H. that

she hopes would be faded out over time. For example, number 14, which states “teacher

assistance for paraphrasing”. Dr. Loftin testified she would prefer to see the student

paraphrase independently. Another example, number 15, which states “requiring

cognitive cues for decoding automatically” as well as number 16, which states “teacher

cueing for to predict outcome and/or answer inferential questions”. Both of those Dr.

Loftin testified she would prefer them to be eventually not needed by A.H. It was noted

that “Needs improvement” or “NI” was noted in auditory processing skills, critical thinking,

verbal reasoning, semantics and vocabulary skills, syntax, and morphology.

On redirect, Dr. Loftin testified that A.H. made progress at the Craig School, and

the tests that Ms. Weinstein introduced during cross-examination do not give a full picture

of A.H.’s progression. She opined that before the Craig School, “A.H. was not open to

learning”. Once he was at the Craig School, he became more receptive to learning and

he started to gain self-esteem. Dr. Loftin testified that A.H. is well liked at the Craig

School, he gets along with all his peers, and she has seen improvement in his reading

regarding sequencing/order and story recall, his decoding has improved over time as well.

Dr. Loftin believes the Craig School addresses A.H.’s needs and continues to address his

needs despite the numbers on the standardized tests as highlighted during cross-

examination above.

Dr. Loftin was emphatic in noting that the Craig School does not indoctrinate

students, nor do they force them to write about how great the Craig School is as part of

the curriculum. Dr. Loftin testified that the writing prompt for their books is their choice if

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it makes sense with their learning objectives. Overall, Dr. Loftin was a professional expert

witness who testified dispassionately and professionally and did not veer into areas upon

which she did not have independent knowledge of A.H. or his needs. As such, I FIND

she was a credible witness and will weigh her credibility in the Expert Testimony section

below as to my ultimate findings of fact and conclusions of law stemming therefrom.

J.H.- A.H.’s Mom:

J.H. is A.H.’s mother. She has two (2) boys, A.H. and P.H. P.H. is entering his first

year of high school at the Ridgewood school district. A.H. is currently eleven (11) years

old and is entering sixth grade this upcoming school year at The Craig School. J.H.

testified that the first time an educator raised concerns about A.H.’s ability to read was in

preschool. She testified that the director of the preschool pulled her aside and told her

that they noticed A.H. was having issues recognizing sounds that go along with letters.

The director was concerned because A.H. was going to be moving into kindergarten the

following year and he was behind his classmates.

After the discussion with the director of the preschool, J.H. decided to get a reading

tutor for the summer, hoping that A.H. would catch up. J.H. testified she reached out to

the Willard School and contacted Ms. Devaney to let her know that she was notified that

her son may have a learning disability. Ms. Devaney indicated that the District would wait

until the start of school to evaluate him and advised J.H. to read to A.H. every night, but

J.H. testified she had been reading to him since he was an infant.

J.H. testified that A.H.’s kindergarten teacher, Ms. Pisani reached out to her in

early that October to let her know that she was noticing that A.H. was having trouble with

sounds associated with letters, that he was having trouble reading even the smallest basic

words. Ms. Pisani expressed concern and suggested that she get A.H. evaluated. J.H.

testified that Ms. Pisano herself did a dyslexia screening on A.H. and he failed. J.H.

testified she never received the results from that screening.

J.H. recalled that A.H. had multiple evaluations done by the District including

occupational therapy, a psychological evaluation, as well as a speech and language

OAL DKT. NO. EDS 03539-20

evaluation. J.H. testified they would pull A.H. and other kids to the side in small groups

to practice their skills. J.H. testified she never saw any documents from the basic skill

sessions nor got any reports discussing his progress in these sessions.

During A.H.’s time in kindergarten, J.H. took A.H. to Dr. Holahan, a

neurodevelopmental disabilities pediatrician specialist where A.H. was evaluated for

“every learning disability”. J.H. also had a private educational evaluation done by an

LDTC, Nicole Spinelli. J.H. also took A.H. to Jennifer Harris, an Orton Gillingham certified

tutor who did private assessments to determine the services A.H. needed. J.H. shared

all the documents/results that she received from these specialists with the Ridgewood

school district.

J.H. continued that as a result of all the evaluations from the district and the private

providers, they all came to the same conclusion, that A.H. was dyslexic. At the time, J.H.

admitted she knew nothing about dyslexia, but spent the time researching the learning

disability. J.H. testified that the district determined that A.H. was eligible for special

education services.

At that time, the school district proposed an IEP, but J.H. testified that she had

some concerns over the proposed IEP (not the subject of this case). (R-6). She testified

she had never heard of the SPIRE program before and she wanted to observe a class

before putting A.H. in the class. J.H. testified she took copious notes and compared it to

the SPIRE website where they had model lessons plans in video format for parents like

J.H. to know what SPIRE classes should look like. J.H. testified that the class she

observed compared to the model lesson plan on the official SPIRE website was not the

same.

J.H. started taking A.H. to Jennifer Harris, a tutor specialized in the Orton

Gillingham approach and the District was aware of the tutor. The school district offered

A.H. an enrichment program during the summer between kindergarten and first grade,

but J.H. made the decision that it would be more appropriate for him to continue with the

tutor in the summer instead.

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As per J.H.’s testimony, A.H. continued to attend The Willard School (Ridgewood

elementary school) for first grade. A.H. had an IEP in place where he was getting pull-

out replacement for writing, reading and math, and at the time he was also getting one on

one SPIRE with his reading teacher. (R-6). J.H. testified that this was around the time

where A.H. started losing interest in school and not wanting to go. J.H. testified that A.H.’s

self-confidence drastically dropped because he was not able to learn. He would

constantly feel “stupid” because the information was not being presented to him in a way

that he could properly process the information. J.H. testified she started sending A.H. to

a pediatric psychologist that dealt with learning disabilities on Dr. Holahan’s

recommendation. J.H. testified she made A.H. child study team aware of his attendance

at therapy. J.H. testified that unfortunately the therapy was not helpful.

J.H. had issues with A.H.’s case manager Ms. Zack. According to J.H., she would

email Ms. Zack and receive no answer. She tried to set up meetings with Ms. Zack and

she would never follow through. J.H. requested through the principal for a new case

manager and the principal told J.H. she must tell Ms. Zack directly why she no longer

wanted her to be working for their son. J.H. testified that she did exactly that. She told

the case manager that she failed to bring to their attention the Franklin Lakes summer

program and she failed to upgrade his IEP for first grade as discussed.

J.H. testified it was never her intention to send A.H. to private school, but after her

concerns were not addressed in the IEP for A.H.’s second grade year, she knew that she

had to do something to address the lack of proper instruction for her son. In the beginning

of A.H.’s second grade year, J.H. requested that her son receive a teacher that was

enrolled in the Fairleigh Dickinson Orton Gillingham Teacher Training program. The

parties agreed in the IEP that A.H. should be evaluated for his reading level within the

first two (2) weeks of school. J.H. testified that the school district failed to follow through

on J.H.’s request. J.H. had parent-teacher conferences with Ms. Brunner and Mr. Friel in

October, and they still did not have the reading evaluations completed as requested in

the IEP. (R-6). J.H. was made aware that the teacher was no longer in the FDU training

program.

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J.H. testified that after the October parent teacher conferences, she decided to

research out-of-district schools that could help A.H. with his learning. J.H. and her

husband decided on the Craig School. J.H. testified that she sued the district for money

regarding A.H.’s placement in the new school. J.H. testified that they settled outside of

court. (R-12). J.H. testified that as a result A.H. started at the Craig school in February

2019. Again, I FIND this to be the procedural history of this case prior to the case at bar.

To that end, I include J.H.’s entire testimony in for completeness and to enable her to tell

her whole story leading up to the IEP in question and thus, the case before me.

Bringing us to the IEP in question, J.H. testified that she and her husband M.H

attended the February 2020 IEP meeting for A.H.’s fourth-grade year, between

September 2020 to June 2021. J.H. alleged that neither she nor her husband were given

the draft IEP or any other documentation to follow along with at the IEP meeting. (R-21).

J.H. testified that she took notes at the IEP meeting, like every other meeting she

has attended for A.H. Based on her recollection and her notes from the meeting, the

meeting started with all of the evaluators going through their evaluations of what they

found to be A.H.’s strengths, weaknesses, and the areas where he could improve. Then

as per J.H.’s testimony, Ms. Devaney and Ms. DeAraujo discussed their observations at

The Craig School. They gave positive feedback, saying that the program was very

structured, and they had no criticism that she could recall.

J.H. testified that even after all the positive feedback about the Craig School, the

child study team stated at the meeting that they want to bring him back to the district. As

per J.H.’s testimony, her husband then interrupted the conversation and asked why they

wanted to bring him back to the district when everyone that had just spoken said that he

was happy at his new placement and was excelling. They responded stating they can

provide an appropriate program for him in the district. J.H. testified she specifically

remembers Ms. Devaney stating that they will “recreate the Craig School” at the

Ridgewood School District. J.H. testified that A.H.’s current teacher(s) at the Craig School

were not at the IEP meeting and was unaware if A.H.’s teachers were invited to it. At the

meeting her and her husband requested that A.H. stay at the Craig school, and the district

said no. As J.H. testified directly and honestly and knows the history of her son’s

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education and development, and the overall facts and conclusion regarding the meeting

as noted above are largely undisputed, I FIND them as FACT.

Under the “goals and objectives” section of the proposed IEP for A.H., J.H. testified

that part the District’s goal was to give A.H. counseling to help him transition back to the

district. As his mother, J.H. felt counseling was an inappropriate use of time because it

was not tackling the core problem of his dyslexia. The counseling focused on ways for

A.H. to make friends and initiate play. However, J.H. testified that in all his life, A.H. has

never had a problem making friends or initiating play. The counseling also focused on

managing his feelings of nervousness, anxiety, stress, and uncertainty. However, J.H.

said he never had any of those problems at the Craig School. The fact that the district

put in learning and breathing techniques as one of his goals/objectives was disconcerting

to her. J.H. testified it was concerning because a fourth grader should not need breathing

techniques to make it through the day unless the school district really thought A.H. was

going to have that much trouble. (R-21)

The other part of the IEP that concerned J.H. was that the reading and writing

program was the same as A.H.’s previous Ridgewood IEP before J.H. pulled him out of

the district. She testified that it was the same program with just an additional forty-five

(45) minutes of multi-sensory reading. J.H. testified this was not an appropriate amount

of time for instruction. J.H. testified, based on the research she did, that at least ninety

(90) minutes were needed. J.H. also noted that they had taken away the aide he had

before leaving the district. (R-21, J-21).

Another part of the IEP that concerned J.H. was that there was no badger

cards/point system in A.H.’s IEP. J.H. testified that A.H. thrived on the point system at

the Craig School because it made him try hard things for which he was then rewarded.

J.H. stated that her son became more confident and more motivated to try new things,

especially hard new things in class. J.H. also testified that unlike the district's IEP the

Craig School had a technology class in place for A.H. to learn about all the intricate parts

of technology. (R-21 & J-21).

OAL DKT. NO. EDS 03539-20

J.H. testified that at the Craig School they had three (3) parent/teacher

conferences a year and prior to them they send evaluations, assessments, teacher notes,

and anything else that will be discussed at the conferences. These conferences include

all of his teachers as well as the director of the school. J.H. testified that there can also

be similar meetings in between those parent/teacher conferences if there are any

concerns with A.H. or they want to amend his goals and objectives.

J.H. testified that the writing program at the Craig School is extremely structured,

multi-sensory based, whereas the writing class that was suggested in the IEP was not

structured like the Craig school writing program, nor would have it been for A.H. when he

entered sixth grade.

J.H. testified that at the end of second grade, the first year A.H. was at the Craig

school, A.H. was a part of a presentation at the school. It was tradition at the Craig School

for the second and third graders to do a book reading at the end of the year. Here, the

students would present to the parents a book that they worked on for months in class.

The book could be on any appropriate topic. J.H. testified that A.H. was the only child

that drafted his book about the Craig School. J.H. testified that the book topic was kept

a secret and only revealed at the end of the school year. (P-42, P-43).

The tape of A.H. reading his book was played for the court. A.H. talked about how

he liked the Craig School because his teacher helps him. He enjoys the classroom chairs

because they help him learn. He has a nice reading teacher who gave him a fidget toy

to play with while doing work. In the video, A.H. continues to read his book stating that

the Craig School is a better school for him because he is learning new things, ending that

he is glad he found the Craig School. (P-42, P-43). As myself had an opportunity to view

the video, I FIND this to be an accurate description of what A.H. credibly relayed about

his affinity for the Craig School.

J.H. testified that she never felt part of the IEP team making decisions for her son

at the Ridgewood District. She felt like her concerns were never heard and she does not

agree with Ms. Devaney’s testimony that the Willard School was an excellent place for

A.H. J.H. found it to be appalling that Ms. Devaney believed that the Craig School was

OAL DKT. NO. EDS 03539-20

indoctrinating her son. J.H. states that is not the case, he is happy at the Craig School

and enjoys his time being there. In fact, J.H. noted that after going to the book reading

at the end of the school year, she asked A.H. what made him decide to write about the

Craig school, and A.H. stated he in fact wanted to write about the Willard school and how

much he hated it, but the reading teacher said that writing about the Willard school would

be inappropriate and guided him in a different way.

J.H. testified that the reason her son could not remember his birthday is because

he has working memory issues that include important dates, people’s names, phone

numbers etc. However, J.H. testified A.H. now knows his birthdate.

J.H. testified that if she signed the proposed IEP, she felt emotionally he was going

to go right back to the dark place he was in before, where his self-esteem would have

shrunk, his anxiety would go up, and he would be extremely sad. J.H. stated they tried

for two and a half years at the district, but it did not work. The district always offered less

services than recommended for someone with dyslexia and the services they did offer

did not compare to the Craig School.

On cross examination, J.H. testified that she first started noticing A.H. becoming

sad, depressed, anxious around the end of kindergarten when he was having trouble

learning. When A.H. was moved to the Craig School, he slowly started becoming his old

self. J.H. acknowledged it was a gradual process and she started noticing improvements

at the end of second grade, five (5) months after he was moved to the Craig School.

J.H. testified that she told Ms. Devaney on the child study team that A.H. was

attending therapy from the beginning of first grade to the beginning of second grade. J.H.

testified she also used Jen Harris, a private Orton Gillingham tutor from kindergarten to

halfway through second grade, when A.H. was in the district. She testified she also

notified Ms. Devaney of this tutor and the child study team was made aware. J.H. testified

that stopped using Ms. Harris as a tutor when they switched A.H. to the Craig School

because the commute got longer and there was less time in the day.

OAL DKT. NO. EDS 03539-20

J.H. testified that the Craig School is open about sending the child back to their

appropriate district when the time comes. However, she believes that her son is not there

yet. J.H. testified she is not sure whether there will be a time where A.H. is ready to be

transitioned back and all she knows is that as of right now it is inappropriate.

J.H. testified that no one referred her to the Craig School or to her counsel, Ms.

Callahan, and that she found both on her own. She hired Ms. Callahan on January 25,

2019. J.H. testified that after the February 2020 IEP meeting, she did not send a letter or

an email to the district stating they are rejecting the proposed IEP and continuing their

placement at the Craig School. J.H. agreed that no one was forcing A.H. to come back

to the district right away but he would have had to start fourth grade with the district based

on the proposed IEP. J.H. testified that Willard Elementary treated A.H. like an outsider

and gave the example of how all of the special education kids were photographed in front

of different backgrounds in the yearbook because they were not taken out of class to be

photographed like the “normal” children.

Overall, I FIND J.H. was certainly an advocate for her son who was concerned for

his well-being and was well aware of his academic and emotional journey. However, she

did not express what her concerns were specifically about the District but for the fact that

it was not Craig and she felt the transition would be extremely daunting for him. She also

admitted that he dealt with anxiety and previously had counseling to treat it. Now, she is

opposed to the District offering any because it will affect his time in class to deal with his

reading and processing issues. As noted above, this is the reason the therapy was

stopped at Craig as well. Also, no one disputes the dyslexia diagnosis, but it is worth

mentioning that both sides cannot find a document that confirms that and thus I so FIND.

The Expert Testimony

The expert testimony offers diametrically opposed viewpoints regarding A.H.’s

ultimate placement, not his educational disabilities but more specifically what is the

appropriate educational environment for him. An expert’s opinion must be weighed based

on the cogency of his or her reasoning, the circumstances of his or her involvement in the

case, and the relevance of his or her experience. The weight to be given an expert

OAL DKT. NO. EDS 03539-20

depends on his or her candor, intelligence, and knowledge. County of Ocean v.Landolfo,

132 N.J. Super. 523, 528 (App. Div. 1975). And our courts have held that “[t]he weight to

which an expert opinion is entitled can rise no higher than the facts and reasoning upon

which that opinion is predicated.” Johnson v. Salem Corp., 97 N.J. 78, 91 (1984) (citation

omitted).

The District’s Experts, Devaney, Acosta, Killby and De Araujo and Petitioner’s

Expert Elizabeth Kenny-Foggin and Dr. Loftin from the Craig School were all well-qualified

experts in their fields, all of whom testified in a professional and thoughtful manner.

Although, it is crucial to note that Elizabeth Kenny-Foggin and Ds. Loftin based their

opinions largely on review of reports administered by the District. As for the District’s

witnesses, who were all qualified as experts, and the collaborating experts did their own

testing, and their own evaluations of A.H. in both the District and the Craig School

settings. To that end, the IEP addresses A.H.’s reading issues and addresses his

emotional needs. Thus, I have to give the most weight to The District’s expert witnesses.

As noted above, their test scores were relied upon and uncontested, and note that A.H.’s

needs regarding reading, processing, high-order thinking and working memory, classified

under Specific Learning Disability (SLD) would be addressed.

I FIND Ms. Kenny-Foggin could not concede much at all even in response to

common and easy questions, rather she chose to stay steadfast in those positions and

that is where she really lost credibility for me. Specifically, when asked on cross about

parental involvement in an IEP meeting, she could not admit that parents could push back

with their input after a first draft. In this regard, I noted that she was evasive and hedging.

Further, my trial notes indicate that she did not know if she included certain information

in her report or from where she pulled it. She also had no input as to his General Ability

Index (GAI) as noted above and in length on cross. She did earn points with me on

honesty when she admitted that sometimes “less is more” and you do not want to burden

the child with unnecessary testing”. She could not remember where in the educational

evaluation (J19) where she noted that it left out basic skills, she could not remember

where, it took her ten (10) minutes and after that it was not listed in her summary but

admitted it should have been. On cross she admitted that she was wrong in her report

many times, these were not just ministerial mistakes but clearly errors on her part. I noted

OAL DKT. NO. EDS 03539-20

many times that when the answers brought out on cross seemed unfavorable to her

expert opinion, she became extremely evasive and lost almost all her credibility. In fact,

she made an allegation on the bottom paragraph of her report that the parents did not

want A.H. to be used as practice so teachers could learn Orton Gillingham methods. I

felt this was quite an accusation and noted it was a “wow” moment in the hearing.

During hypothetical questions Ms. Kenny-Foggin would make certain admissions.

For instance, when asked about whether it would be concerning that a student is not

hitting the mark or if program was stagnant or decreasing it would concern her. She said

that in response to the Slain test and with the TOWRE. She said a lack of progress in

those scores would be a concern and you would want to see what else impacts the

student to be focused on and addressed. For example, she stated “like is there a brain

injury or an O/T issue, muscle issues etc…” She noted that it would be an indication that

something was not working and must change. In addition, she admitted hypothetically

that if in a structured literacy program it would be appropriate to utilize certain

modifications. In fact, teachers would need to follow those modifications on the level they

can read on. She agreed to this with regard to prompting as well, that a goal would be to

fade out prompting depending on a student’s ability. In fact, she agreed that overtime if

A.H. or a student like A.H. needing more cueing would be a concern and an indication

that the child is struggling or something is amiss. I note that these are admissions she

made for items included in the IEP or items missing at Craig. Again, these answers could

only be elicited from Ms. Kenny-Foggin when they were asked in the hypothetical by

District’s counsel, and I so FIND.

As to A.H. I FIND that her answers were canned and prepared. The IEP was

drafted in Feb of 2020, she did not know AH then, she was retained ten (10) months later

in December of 2020. She added some credibility to her testimony when she noted some

fair criticism of Craig’s program in that she also did not agree with the fact that their goals

and objectives were all 80% and not 100% as she testified would be required. She also

admitted that with regard to a draft IEP having to be given to the parents as required by

law, she could not note what that law was. She also noted she was never an LDTC in

any other public school district other than three (3) years in Holmdel which was mostly

grades 4 to 6 and high school.

OAL DKT. NO. EDS 03539-20

Kenny-Foggin was honest and eager to do the best job she could given the

circumstances upon which she encountered this case. To that end, I cannot give her

testimony as much weight as the District’s witnesses because she did not do her own

testing, had no independent recollection of the case, or A.H., used post-it notes to refresh

her memory throughout her trial testimony and then suffered from a long awful case of

COVID wherein her illness caused a delay of not only her review of the case but her

eventual report which was riddled with clear errors upon which she professionally admits,

and I so FIND. Furthermore, A.H.’s classification, which is not in dispute here, is SLD

and it is based upon all of the District’s testing and input from the private testing leading

up to the case before me. The IEP finalized by the CST considered and integrated all of

their independent testing, their independent observations, a careful review of the parents’

experts’ reports, reports from the Craig School as well as parental input albeit sparse. I

FIND that Kenny-Foggin’s testimony as well as Dr. Loftin’s while strong and professional,

could not overcome that of The Districts’ experts. In fact, these expert versions are not

altogether different. What is different is the conclusion as to where A.H. should be

schooled. They argument is over the brick and mortar; the programming is arguably

better in District due to the expertise of the teachers giving the instruction and it is certainly

given in the least restrictive environment as the multisensory approach is woven

throughout the day while in the both pull-out resource and the general education setting

wherever possible. The extra multisensory meeting is additional and not a stand-alone

service, and thus I so FIND.

All witnesses:

DISCUSSION

It is within an Administrative Law Judge's "province to determine the credibility,

weight, and probative value of the expert testimony." State v. Frost, 242 N.J. Super. 601,

615 (App. Div.), certif. denied. 127 N.J. 321 (1990). The weight to be given to an expert's

testimony depends upon "[sic] candor, intelligence, knowledge, and especially upon the

facts and reasoning which are offered as foundation of [their] [sic] opinion." County of

Ocean v. Landolfo, 132 N.J. Super. 523, 528 (App. Div. 1975). Further, "the weight to

OAL DKT. NO. EDS 03539-20

which an expert opinion is entitled can rise no higher than the facts and reasoning upon

which that opinion is predicated." Johnson v. Salem Corp., 97 N.J. 78, 91 (1984).

A trier of fact may reject testimony as “inherently incredible,” and may also reject

testimony when “it is inconsistent with other testimony or with common experience” or it

is “overborne” by the testimony of other witnesses. Congleton v. Pura-Tex Stone Corp.,

53 N.J. Super. 282, 287 (App. Div. 1958). Similarly, “[t]he interests, motive, bias or

prejudice of a witness may affect his credibility and justify the [trier of fact], whose province

it is to pass upon the credibility of an interested witness, in disbelieving his testimony.”

State v. Salimone, 19 N.J. Super. 600, 608 (App. Div.), certif. denied, 10 N.J. 316 (1952)

(citation omitted).

Having had an opportunity to hear the testimony in conjunction with a thorough

review of the stipulated documentary evidence, I FIND that all of the Districts’ witnesses

were credible, with specialized experience in the area of programming that is germane to

this case, who provided reliable testimony that the IEP for the 2020-21 school year was

reasonably calculated to provide A.H. with significant learning and meaningful educational

benefit in light of A.H.’s individual needs and potential, that is, the IEP was appropriately

ambitious in light of those circumstances, and they did so in the least-restrictive

environment. As Ms. Devaney and the District’s witnesses testified, A.H.’ s parents

unilaterally placed him by waiving the stay-put which was to be in District at the end of

the prior settlement agreement. No subject matter teacher from the Craig School reported

his progress. Dr. Loftin did discuss her review of his progress as the CEO of Craig. She

was also professional and candid where she agreed there should be more progress in

certain areas. That candor with regard to A.H.’s lack of appropriate goals was also

echoed by the Petitioner’s private witness Elizabeth Kenny-Foggin. Undoubtedly, A.H.’s

IEPs contained goals and objectives in all subjects with attendant modifications for

success in those classes, and A.H. ultimately would have likely achieved success in those

classes had he decided to re-enroll in District as every teacher was trained in multi-

sensory reading and it would be weaved into all of his classes in District. In addition, his

IEP included transition services and counseling if needed. It also provided for another IEP

meeting in short order after A.H. had some time to settle back into the Ridgewood School

District, and thus I so FIND.

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Likewise, as Devaney, Killby, Acosta, DeAraujo and J.H. testified that at Craig,

A.H. attended class regularly, participated fully, and completed tasks timely. In addition,

Ms. Devaney, L.D.T.C., reported and The Craig School witnesses testified that A.H. met

some of the goals and objectives of those classes even though goals and objectives were

a subjective component to their process. Dr. Loftin was clear that there was a plan based

upon progress reports and meetings with the parents and teachers, but it was not an IEP

with specific goals and objectives as required by public school districts. It is clear that

from J.H. and A.H.’s video, that he clearly enjoys going to the Craig School, and thus I so

FIND. Further, Dr. Loftin, while qualified as an expert, was also a fact witness. As she

was the CEO of Craig and not the teacher, as such I FIND I cannot give her testimony as

much weight as the District’s witnesses as while she scored points with me with her

candor, she did not have much hands-on direct experience with A.H.

As for Ms. Kenny-Foggin, Petitioner’s expert; I FIND that I CANNOT give the

ultimate opinion as memorialized in her report much weight at all. As noted above, she

did not test A.H. herself, she was not at the IEP meeting, she was not retained until about

ten (10) months after the IEP meeting in question, she did not know A.H. individually, she

relied on the testing from the District and then authored her reports many months after

and had no independent recollection of A.H. during her trial testimony. In addition, she

had many errors in her report, and made honest concessions about those errors which I

appreciated in my search for the truth for this child. She never visited the district’s

program in person and never asked to. She never asked for follow-up materials from the

District. Thus, she could not address the alleged inappropriateness of the IEP. It bears

mentioning that A.H. was already attending The Craig School prior to her writing her

evaluation and she is paid by the hour for her expert services. However, I FIND that she

was forthright on cross examination when she admitted that A.H.’s goals and objectives

as listed by Craig were also inadequate as they did not seek 100% progress in the areas

highlighted in her testimony.

As for J.H., I FIND that she was a caring and zealous advocate for her son who

knows his entire educational and social-emotional history. However, on the whole with

regard to her assessment of his educational needs I FIND she was less credible than the

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District’s witnesses. She has an obvious self-interest in the outcome of this matter as

there is a large financial cost associated with The Craig School placement. However, I

also FIND that she and her husband were cooperative in attending the IEP meeting,

allowing evaluations and observations to take place but were more focused on the alleged

lack of a draft IEP at the meeting in question. For a couple who J.H. testified had been a

part of multiple IEP meetings, who took copious notes at the meeting in question and at

past meetings, who gave input at all of those meetings, I FIND that her version of there

being no draft IEP to work with alongside the CST did not make much sense. Regardless,

I FIND that even if the draft were missing, it would not have affected my overall analysis

about whether they were given an opportunity to be meaningful collaborators of the CST;

they absolutely were given that opportunity. Petitioners’ assertion that they were

collaborative partners with the District strains credulity. Again, none of this testimony was

supported by testimonial or documentary evidence and as such, I FIND I cannot give her

testimony much weight in this regard.

LEGAL ANALYSIS AND CONCLUSIONS OF LAW

This case arises under the Individual with Disabilities Education Act (IDEA), 20

U.S.C. § 1401 et seq., which makes available federal funds to assist states in providing

an education for children with disabilities. Receipt of those funds is contingent upon a

state’s compliance with the goals and requirements of the IDEA. Lascari v. Bd. of Educ.

of Ramapo-Indian Hills Reg. Sch. Dist., 116 N.J. 30, 33 (1989). As a recipient of Federal

funds under the IDEA, the State of New Jersey must have a policy that assures that all

children with disabilities will receive FAPE. 20 U.S.C. §1412. FAPE includes Special

Education and Related Services. 20 U.S.C. §1401(9); N.J.A.C. 6A:14-1.1 et seq. The

responsibility to deliver these services rests with the local public-school district. N.J.A.C.

6A:14-1.1(d). To meets its obligation to deliver FAPE, the school district must offer G.O.

“an educational program reasonably calculated to enable him to make progress

appropriate in light of his circumstances.” Endrew F. v. Douglas Cnty. Sch. Dist., 137 S.

Ct. 988 (2017)

The primary issues in this case are whether the District failed to offer A.H. with a

FAPE for the 2020-21 and 2021-22 school years. And if not, whether the unilateral

OAL DKT. NO. EDS 03539-20

placement at The Craig School was appropriate. Lastly, if FAPE was not offered, whether

the parents are entitled to any reimbursement.

Did the IEP Offer A.H. a FAPE?

The petitioners argue that the District’s proposed IEP did not provide A.H. with a

FAPE. (R-21, J-21). The Petitioners claim that A.H’s significant language-based learning

disabilities and his low range of working memory and deficits and fluid reasoning make

the IEP inappropriate. Please note that the procedural aspects of this case will not be

addressed as counsel, and I discussed and agreed at Oral Argument and before the case

was heard. So, with regard to Petitioner’s concerns about whether the IEP offered A.H.

a FAPE, they claim that since the IEP lacked a reinforcement system, an FM system, no

support of any kind in Science and Social students and no multisensory scientifically

based writing program, insufficient time for language-based literacy, no binder system

and no fidgets or appropriate chairs that allow movement, that those alleged deficiencies

amounted to a denial of FAPE. I FIND this argument to be wholly unsupported by the

credible testimony in this case.

The petitioners previously claimed the District’s determination that A.H.’s

classification would be changed from Communication Impaired to Specific Learning

Disability (“SLD”) amounted to the District’s predetermination regarding same. However,

A.H.’s classification and eligibility are not at issue in this matter as noted above and

clarified at oral argument, and thus I so FIND. No one disputes that the SLD stems from

a language-based learning disability with A.H.’s other factors including low range of

working memory, and other deficits as outlined in detail above.

In considering the appropriateness of an IEP, case law instructs that actions of the

school district cannot be judged exclusively in hindsight. The appropriateness of an IEP

must be determined as of the time it is made, and the reasonableness of the school

district’s proposed program should be judged only on the basis of the evidence known to

the school district at the time at which the offer was made. D.S. v. Bayonne Bd. of Educ.,

602 F.3d 553, 564–65 (3d. Cir. 2010) citing Susan N. v. Wilson Sch. Dist., 70 F. 3d 751,

762 (3rd Cir. 1995). An IEP is “based on an evaluation done by a team of experts prior

OAL DKT. NO. EDS 03539-20

to the student’s placement.” Fuhrmann v East Hanover Bd. of Educ., 993 F.2d 1031,

1041 (3rd Cir. 1993) (emphasis in original). Thus, “in striving for ‘appropriateness,’ an

IEP must take into account what was, and was not, objectively reasonable [when] the IEP

was drafted.” Ibid. Our courts have confirmed that “neither the statute nor reason

countenance ‘Monday morning quarterbacking’ in evaluating a ch ild’s placement.” Susan

N., 70 F.3d at 762, citing Fuhrmann, 993 F.2d at 1040.

The Third Circuit in Ridgewood Bd. of Educ. v. N.E. for M.E., 172 F.3d 238, 247

(3d Cir. 1999) stated that the appropriate standard is whether the IEP offers the

opportunity for “significant learning and confers meaningful educational benefit.” The

benefit must be meaningful in light of the student’s potential; the student’s capabilities as

to both “type and amount of learning” must be analyzed. Id. at 248. When analyzing

whether an IEP confers a meaningful benefit, “adequate consideration [must be given] to

. . . [the] intellectual potential” of the individual student to determine if that child is receiving

a FAPE. Ibid. The IDEA requires an IEP based on the student’s needs and “so long as

the IEP responds to the needs, its ultimate success or failure cannot retroactively render

it inappropriate.” Scott P., 62 F. 3d at 534.

First, with respect to the proposed IEP, I do not agree with petitioners that this IEP

was not reasonably calculated to address A.H.’s needs. The IEP identifies and address

A.H.’s educational, behavioral, social, emotional, and therapeutic needs. It describes a

robust program which includes almost everything offered by Craig including professionals

qualified in multisensory reading. It explicitly includes small group pull-out resource

instruction for reading (50 minutes), writing (50 minutes) and math (50 minutes) each day

plus an extra 45-minute multisensory reading group daily, plus small group speech

language therapy twice per week, small occupational therapy twice per week and

assistive technology. In science and social studies, the teachers all trained in multi-

sensory techniques would help in utilizing those techniques as well. It also included in

response to the parents’ concerns, extensive transition plan to ensure a smooth transition

for A.H. back into the District; myriad and extensive modifications, appropriate goals and

objectives and meetings with a reading specialist to address the petitioners’ concerns.

Furthermore, the District offered to provide notice of extracurricular activities, a summer

tour, a meet-and-greet with the case manager and counselor, individual counseling once

OAL DKT. NO. EDS 03539-20

per week, and the ability to participate in social skills or a “lunch bunch”. The District was

also thoughtful in developing A.H.’s schedule for the year so that he could spend a chunk

of his time in the mainstream setting while also receiving the necessary educational and

support services. As a result, I CONCLUDE that the IEP is reasonably calculated to

address A.H.’s needs as they were known to the District at the time even given the

parents’ lack of meaningful collaboration.

Petitioners further assert that the IEP improperly included therapy/counseling as

A.H. would be so affected by the change from Craig to the District that it was proof that

FAPE could not be provided as the child would suffer. I CONCLUDE that the addition of

those services in the IEP did not deny A.H. a FAPE but rather enhanced it if he wanted

to take advantage of that as he transitioned back to the District. Especially in light of J.H.’s

testimony that he was previously in a dark place about his learning deficiencies and was

in therapy that the parents gave up as they felt there was not enough time and that at

Craig his time would be better used with further reading instruction. In the context of

implementation, the Third Circuit found that even assuming the allegations of a one-day

failure of a one-to-one aide, homework deficiencies, and other omission of services were

true, “such de minimus failures to implement an IEP do not constitute violations of the

IDEA.” Melissa S. v. Sch. Dist. Of Pittsburgh, 183 F. App’x 184, 187 (3d Cir. 2006) (citing

Houston Indep. Sch. Dist. V. Bobby R., 200 F.3d 341, 349 (5

Cir. 2000). In A.H.’s case,

he never even attended the District’s program or placement, and the addition of

counseling or other transition to District services are not only not an omission but an

addition of services based upon the parents’ ultimate concerns of him going to a “dark

place”. Thus, logic dictates that if an implementation failure is not considered a denial of

FAPE, neither should an added optional service in response to the scant parental input,

be deemed as such, and thus I so CONCLUDE.

In light of my findings of fact and analysis above, I CONCLUDE that the IEP offered

A.H. a FAPE for 2020-21 and 2021-22 in the least restrictive environment and allowed

him an opportunity to make meaningful progress.

Case law recognizes that the IDEA does not require the Board to provide A.H. with

the best possible education, S.H. v. State Operated Sch. Dist. of Newark, 336 F. 3d 260,

OAL DKT. NO. EDS 03539-20

271 (3d Cir. 2003), or one that provides “everything that might be thought desired by

loving parents,” Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 132 (2d Cir.

1998) (citation omitted). Nor does the IDEA require that the Board maximize A.H.’s

potential or provide him the best education possible. Instead, the law requires a school

district to provide a basic floor of opportunity. Carlisle Area Sch. v. Scott P., 62 F.3d 520,

533-34 (3d Cir. 1995). The district must provide personalized instruction with sufficient

support services to permit A.H. to benefit educationally from instruction. Hendrick Hudson

Cent. Sch. Dist. Bd. of Educ. v. Rowley, 458 U.S. 176, 203, 102 S. Ct. 3034, 3049 (1982).

Noting that Rowley involved a student who, though disabled, was fully integrated in a

general education classroom, the United States Supreme Court explained that while “a

child’s IEP need not aim for grade-level advancement if that is not a reasonable prospect,

[the IEP] must be appropriately ambitious in light of his circumstances[.]” Endrew F. v.

Douglas Cnty. Sch. Dist. RE-1, 137 S.Ct. 988, 992 (2017). The Third Circuit found the

directions of the Supreme Court in Endrew to treat “a child’s intellectual abilities and

potential as among the most important circumstances to consider” to be consistent with

its standard that an “IEP must provide significant learning and confer meaningful benefit.”

Dunn v. Dowlingtown Area Sch. Dist., 904 F.3d 248, 254 (3rd Cir. 2018). “IEPs must be

reasonable, not ideal [and] slow progress does not prove” the deficiency of an IEP. Ibid.

Here, the IEP in question was more robust than the prior program and placement where

A.H. demonstrated reasonable but not meaningful academic progress. In addition, they

were in keeping with that progress and the updated evaluations and noted areas of

improvement and areas of continued weakness.

The IDEA also requires states to educate disabled children in the LRE to the

maximum extent appropriate, with children without disabilities. See 20 U.S.C.

§1412(a)(5)(A). Thus, removal of children with disabilities from the general education

environment occurs only when the nature or severity of the disability is such that

education in regular classes with the use of supplementary aids and services cannot be

achieved satisfactorily. Ibid. “This provision evidences a ‘strong congressional

preference’ for integrating children with disabilities in regular classrooms.” Oberti v. Bd.

of Educ. of Clementon Sch. Dist., 995 F.2d 1204, 1214 (3d Cir. 1993) (citations omitted).

OAL DKT. NO. EDS 03539-20

To determine whether a school follows the Act's mainstreaming requirement, a

court must first determine whether education in the regular classroom with the use of

supplementary aids and services can be achieved satisfactorily. Id. at 1215. If such

education cannot be achieved satisfactorily, and placement outside of the regular

classroom is necessary, then the court must determine “whether the school has made

efforts to include the child in school programs with nondisabled children whenever

possible.” Ibid. This two-part test is faithful to the Act's directive that children with

disabilities be educated with nondisabled children to the maximum extent appropriate.

Ibid.

Is Placement at Craig Appropriate, and are

the Parents Entitled to Reimbursement for their Unilateral Placement?

Having found that the Board offered a FAPE to A.H., it is not necessary for me to analyze

whether placement at Craig is appropriate under the IDEA. It is well-established that the

appropriateness of an IEP is not determined by a comparison of the private school and the

program offered by the District. S.H. v. State Operated Sch. Dist. of Newark, 336 F. 3d at 271.

Rather, the pertinent inquiry is whether the District’s IEP offered FAPE and the opportunity for

meaningful educational benefit in the LRE. G.B. and D.B. ex rel J.B. v. Bridgewater-Raritan Reg’l

Bd. of Educ., EDS 4075-06, Final Decision (June 13, 2007), http://njlaw.rutgers.edu/collections

/oal/. Upon a finding that the district provided FAPE, the appropriateness of the private placement

is irrelevant. Ibid. (citation omitted); Scott P., 62 F. 3d at 533.

Even assuming that the IEP somehow fell short, I CONCLUDE that the parents are not

entitled to full reimbursement for their expenses at Craig during the period of time highlighted in

the petition, specifically the 2020-21 school year. A court may reduce or deny reimbursement

costs based on the parents’ unreasonable behavior during the IEP process. 20 U.S.C. §

1412(a)(10)(C)(iii). New Jersey regulations specifically require that parents advise the district at

the “most recent IEP meeting” that they were rejecting the IEP, and that they give written notice

“of their concerns or intent to enroll their child in a nonpublic school” to the district at least ten

business days’ prior to removal. N.J.A.C. 6A:14-2.10(c)(1) and (2). The cost of reimbursement

may be reduced or denied “[u]pon a judicial finding of unreasonableness with respect to actions

taken by the parents.” N.J.A.C. 6A:14-2.10(c)(4).

OAL DKT. NO. EDS 03539-20

Here, the parents waived the Stay Put at the end of their prior settlement period which

was to be the District even before they met with the District to see what special education

program the District was proposing for A.H. for the following year, and before they retained

their expert, Ms. Kenny-Foggin, who had yet to even observe the District’s program. Nor did

she observe the unilateral placement at Craig until after the decision for him to stay there

was made and her report was written many months after. The District was first made aware

that the parents were looking to stay at Craig after the term of the settlement seeking a

continued out-of-district, unilateral placement by letter, when the petitioners informed the

District that they were waiving the Stay-put and keeping A.H. at Craig. The District requested

to discuss the matter at the IEP meeting and reevaluation planning meetings.

I FIND that since the parents had already enrolled him and engaged with Craig and

had no proposed changes to the District’s IEP, they had no intention at that time of discussing

or considering the District’s proposed program for school years covered by the IEP in

question. This is evidenced by their only concerns at the IEP meeting being that A.H. should

return to Craig. I CONCLUDE that the parents were not meaningful collaborators during the

IEP process, but they did at least allow the observations and testing to occur and thus did

not stymie the District’s ability to formulate and develop an appropriate IEP.

In accordance with N.J.A.C. 6A:14-2.10, parents may receive reimbursement for a

unilateral placement as follows:

(b) if the parents of a student with a disability who previously

received special education and related services from the district

of residence enroll the student in a nonpublic school, an early

childhood program or approved private school for students with

disabilities without the consent of, or referral by, the district board

of education, an administrative law judge may require the district

board of education to reimburse the parents for the cost of

enrollment if the administrative law judge finds that the district

board of education and not made a free, appropriate public

education available to the student in a timely manner prior to

enrollment and that the private placement is appropriate.

The OAL regulation mirrors well-established Federal Law. Parents who unilaterally

withdraw their child from public school and place him in private school without consent from

OAL DKT. NO. EDS 03539-20

the school district “do so at their own financial risk.” School Comm. Of Burlington v. Mass.

Dep’t of Educ., 471 U.S. 359, 374, 105 S.Cr. 1996, 2004, 85 L. Ed. 2d 385, 397 (1985). See

also: N.J.A.C. 6A: 14-2.10(b)(1). They may be entitled to reimbursement for the costs of

their unilateral private placement only if a court finds that the proposed IEP was inappropriate,

and the private placement was appropriate under the IDEA. 20 U.S.C.A. Section

1412(a)(10)(C)(ii). Once a court holds that the public placement violated IDEA, it is

authorized to “grant such relief as the court determines is appropriate.” 20 U.S.C.A. Section

1415(e)(2).

Parents who are compelled to unilaterally place their child in the face of a denial of

FAPE, need not select a school that meets state standards. Florence County Sch. Dist. v.

Carter, 510 U.S. 7, 15, 114 S.Ct. 361, 366, 126 L. Ed. 2d 284, 293 (1993); L.M. ex rel H.M.

Evesham Twp. Bd. Of Educ., 256 F. Supp. 2d 290 (D.N.J. 2003). The Third Circuit has held

that “parents [are] entitled to reimbursement even [when a] school lacks[s] state approval

because the [FAPE] state standard requirements… [apply] only to placements made by a

public entity.” Id. at 297 (citing T.R. v. Kingwood Twp. Bd. Of Educ., 205 F.3d 572, 581 (3d

Cir. 1999). Accordingly, our courts recognize that parents who unilaterally place their child

by necessity do so without the expertise and input of school professionals that is

contemplated by a truly collaborative IEP process. The courts recognize that under these

circumstances, parents essentially do the best they can, and hold that, “when a public school

system has defaulted on its obligations under the IDEA, a private school placement is ‘proper

under the act.’ (IDEA) if the education provide by the private school is ‘reasonably calculated

to enable the child to receive educational benefits.” Florence, 510 U.S. at 11, 114 S. Ct. at

365,126 L. Ed. 2d at 293 (quoting Rowley, 458 U.S. at 207, 102 S. Ct. at 351, 73 L. Ed. 2d

at 712.

Pursuant to N.J.A.C. 6A:14-2.10(c)(4), reimbursement for a unilateral placement can

be reduced or denied upon a finding of unreasonableness as outlined above. The Board

admitted that the parents were cooperative but not collaborative in that their only noted

concerns at the IEP meeting and thereafter were that leaving the Craig School would be

detrimental, as such I CONCLUDE in keeping with my findings above, that they were not a

meaningful and collaborative part of the IEP process and did not reject the IEP in good faith.

OAL DKT. NO. EDS 03539-20

I FURTHER CONCLUDE that the petitioners acted somewhat reasonably and

allowed the District the opportunity to address their concerns when they participated in the

IEP process, provided all of their medical records and allowed the District to re-evaluate and

observe him in District and at the Craig School. They also timely responded to the District’s

requests and observed the in-District school and program.

ORDER

Given my findings of fact and conclusions of law, I ORDER that the relief requested

by petitioners as set forth above and in their due process petition be and hereby is

DENIED, and that the petition of appeal be DISMISSED.

This decision is final pursuant to 20 U.S.C. § 1415(i)(1)(A) and 34 C.F.R. § 300.514

(2022) and is appealable by filing a complaint and bringing a civil action either in the Law

Division of the Superior Court of New Jersey or in a district court of the United States. 20

U.S.C. § 1415(i)(2); 34 C.F.R. § 300.516 (2022). If the parent or adult student feels that

this decision is not being fully implemented with respect to program or services, this

concern should be communicated in writing to the Director, Office of Special Education.

July 7, 2023

DATE DANIELLE PASQUALE, ALJ

Date Received at Agency July 7, 2023

Date E-Mailed to Parties: July 7, 2023

WITNESS LISTS

For Petitioner:

Elizabeth Kenny-Foggin, Petitioner’s Expert

Dr. Kara Loftin, The Craig School (qualified as expert witness)

OAL DKT. NO. EDS 03539-20

Petitioner, J.H. (A.H.’s mother)

For Respondent:

Eileen Devaney, LDTC and Case Manager (qualified as expert witness)

Dr. Kate Killby, School Psychologist (qualified as expert witness)

Kathleen Acosta, LDTC (qualified as expert witness)

Christie DeAraujo, Multisensory reading (qualified as expert witness)

LIST OF EXHIBITS IN EVIDENCE

EXHIBIT LIST

J-1

Ridgewood Occupational Therapy Evaluation, dated 1/27/2017

J-2

Ridgewood Psychological Evaluation, dated 2/1/2017

J-3

Ridgewood Social History, dated 2/1/2017

J-4

Ridgewood Educational Evaluation, dated 2/2/2017

J-5

Ridgewood Speech Language Evaluation, dated 2/3/2017

J-6

Initial IEP, signed 4/3/2017

J-7

Annual Review IEP, dated 6/13/2017

J-8

Letter re: Orton Gillingham Summer Clinic, dated June 2017

J-9

IEP Amendment, dated 3/2/2018

J-10

Annual Review IEP, dated 6/1/2018

J-11

Ridgewood assessment scores, dated September 2017 – January 2019

J-12

Settlement Agreement, dated 11/5/2019, and Decision Approving Settlement,

dated 11/14/2019

P-13

Craig School PLAAFP and testing records, dated Spring 2019

P-14

Craig School grade 3 objectives, undated

P-15

Craig School schedule, progress reports, and testing, dated Fall 2019

J-16

Ridgewood Occupational Therapy Evaluation, dated 1/21/2020

J-17

Lesson Observation at Craig School by Christie A. DeAraujo, MAT, SLDS,

OG-TT, dated 1/30/2020

OAL DKT. NO. EDS 03539-20

J-18

Ridgewood Psychological Evaluation, dated 1/30/2020

J-19

Ridgewood Educational Evaluation, dated 1/31/2020

J-20

Ridgewood Speech Language Evaluation, dated 1/31/2020

J-21

Ridgewood IEP, dated 2/12/2020

P-22

Petition for Due Process, dated 2/27/2020

P-23

Craig School report card and progress reports, dated Spring 2020

P-24

Craig School report card and progress reports, dated June 2020

P-25

Craig School summer progress reports, dated July 2020

P-26

Craig School schedule, report card, progress reports, and testing, dated

Fall 2020

J-27

Emails between Elizabeth Kenny-Foggin and Kathleen Acosta, dated

December 2020 – January 2021

P-28

Craig School report card and progress reports, dated Spring 2021

P-29

Craig School report card and progress reports, dated June 2021

P-30

Craig School summer progress reports, dated July 2021

P-31

Craig School schedule, PLAAFP, report card, progress reports, and testing,

dated Fall 2021 (pre

P-32

1/14/2022 email from Beth Callahan, Esq. to Alyssa K. Weinstein, Esq.

attaching Independent Educational Review Report of Elizabeth Kenny-Foggin,

dated 8/25/2021, with CV (later marked as J-32)

P-33

Amended Petition for Due Process, dated 2/15/2022

R-34

Answer and Affirmative Defenses, dated 2/18/2022

P-35

Craig School report card and progress reports, dated Spring 2022

P-36

Credentials for Craig School representatives Janet Cozine, Niles Furlong,

Lynn Gaffney, Brielle Loughran Miller, Kelly Della Fave, Karen Pompilio,

Harriett Hughes-Rex, Jamie O’Connor

R-37

Resume and Certifications – Katie Killby (later marked J-37)

R-38

Resume and Certifications – Christie A. DeAraujo (later marked J-38)

R-39

Resume and Certifications – Kathleen Acosta (later marked J-39)

R-40

Resume and Certifications – Jaclyn Fanos (not admitted)

R-41

Resume and Certifications – Eileen Devaney (later marked J-41)

P-42

Craig School Book, undated

OAL DKT. NO. EDS 03539-20

P-43

Craig School Video, undated

P-44

Independent Educational Review Report of Carol A. Fiorile, dated 3/11/2019,

with CV (not admitted at hearing)

P-45

Independent Educational Observation by Carol A. Fiorile, dated 4/30/2019

(not admitted at hearing)

P-46

Unilateral Placement Letter, dated 1/25/2019

R-47

K. Acosta Observation Notes, dated 1/5/2021 (later marked J-47)

P-48 Dr. Loftin’s resume

P-49 More Craig Documents